Independent Joins Amicus Brief on the Constitutionality of Presidential Tariff Orders

Earlier this week, the Independent Institute joined Americans Advancing Freedom (AAF) and several other organizations in submitting an amicus brief regarding V.O.S. Selections, Inc. v. Donald J. Trump, the lawsuit challenging the constitutionality of President Trump’s “Liberation Day” tariffs. This case is currently before the U.S. Court of Appeals for the Federal Circuit, with a hearing scheduled for July 31, 2025. The case has far-reaching implications for the White House’s tariff agenda. If the appellate court upholds a lower court ruling from earlier this year, Trump’s tariffs, which were implemented by executive order rather than the usual legislative process, will be stricken down as unconstitutional exercises of presidential power.

An amicus brief aims to provide the court with relevant legal background regarding a pending case, even as its signers are not directly involved as parties to the dispute. This amicus filing summarizes the history and case law surrounding the Constitution’s tariff powers, which are specifically reserved to Congress in Article I and cannot be delegated to another branch. Since President Trump’s “Liberation Day” tariffs came from unilateral executive orders, they lack legislative authorization and are in violation of the plain letter of the Constitution.

Specifically, the brief states that President Trump’s tariffs exercised powers beyond those granted in the International Emergency Economic Powers Act (IEEPA), the statute he claims as justification for his orders. IEEPA does not authorize the president to enact tariffs, though, nor does it even contain that word (or any close synonym such as “import duties”). Instead, Trump has asserted a sweeping tariff authority from IEEPA by inferences that run counter to a long history of constitutional case law.

At the heart of the lawsuit is the nondelegation doctrine, which prohibits Congress from granting or delegating legislative authority to other branches of the government. Courts have long recognized that Congress cannot simply confer its constitutional powers onto a different branch. Since they lack legislative sanction and were enacted by a legally dubious executive decree, Trump’s IEEPA tariffs amount to an unconstitutional usurpation of Congress’s tariff-setting powers.

As the amicus brief discusses, the principle of nondelegation of powers predates the American founding. John Locke affirmed that “[t]he legislative cannot transfer the power of making laws  to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others (Locke 1689).” America’s Founding Fathers affirmed the principle of nondelegation of powers both before and after the ratification of the Constitution. It is a bedrock principle for the American legal system.

In order to prevent Congress from improperly delegating legislative power to the executive, Congress must “lay down… an intelligible principle to which the person or body authorized.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928). That guidance required from Congress is also “greater… when an agency action will ‘affect  the entire national economy’ than when it addresses  a narrow, technical issue.”  Consumers’ Research,  No. 24-354, slip at  1 1  (June 27, 2025), (quoting  Whitman, 531 U.S. at 475). It is the responsibility of the court to determine if the executive has operated within the boundaries of its delegated authority and to determine if the guidance provided by Congress prohibits the executive from usurping its legislative authority.

President Trump has claimed that the powers they exercised were legal because “Congress  gave itself oversight authority over exercises of IEEPA powers.”  Pet’r’s Br.  at  13. However, as outlined above, this passive oversight type is insufficient to satisfy the nondelegation doctrine. The executive is still prohibited from exercising legislative power even if that power is subject to congressional review. 

The government also argues that “what constitutes an ‘extraordinary and unusual threat’ and whether a particular action will effectively ‘deal with’  that threat” (the intelligible principle for  guiding the implementation of tariffs under the IEEPA) contains “no basis  for meaningful judicial review of President Trump’s findings.”  Pet’r’s Br.  at  58. This argument cannot stand up to legal scrutiny. If the IEEPA does not provide an intelligible guiding principle to provide a basis for judicial review, then the IEEPA does not meet the standards established by the nondelegation doctrine. On the other hand, if the IEEPA meets the standards set by the nondelegation doctrine and provides an intelligible guiding principle, then the court has the right to determine if the executive action has stayed within the limits of that guiding principle. 

Both the powers to tax and to regulate commerce with foreign nations are enumerated powers in the Constitution for Congress, so the power to impose tariffs belongs to Congress, whether they are viewed as a tax or as commercial regulation. The president’s tariffs regulate Americans who attempt to purchase goods from foreign nations, which has been viewed as a legislative action even before the Constitution was ratified. As the brief’s accompanying review of early constitutional history shows, tariffs by executive decree fall far outside of the letter and original intent of the Constitution.

As a result, the president’s “Liberation Day” tariffs find no sanction under our governing documents or existing statute. They break the established doctrine regarding the separation of powers and concentrate power in the hands of the executive. The Court of Appeals has an opportunity to place our trade policy back on a constitutional footing. If it follows the evidence provided and adheres to long-established constitutional principles going back to the founding era, it will find that IEEPA does not authorize tariffs, and that novel assertions of extra-constitutional emergency powers by the executive branch are void.