Scholarship@WashULaw

Document Type

Brief

Language

English (en)

Publication Date

2025

Publication Title

Amicus Brief - Supreme Court of the United States Filing

Abstract

The Constitution gives Congress, and not the President, the authority to “lay and collect Taxes, Duties, Imposts, and Excises.” The Constitution also mandates that revenue measures begin in the House of Representatives, requires that such measures be geographically uniform, and prohibits the states from imposing import duties without congressional consent. Read together with Article I’s vesting of “all legislative Powers” in Congress and the familiar requirements of bicameralism and presentment, these provisions reflect a recurring constitutional commitment: Tariffs are national and legislative—and thus to be determined by a representative Congress.

History bolsters these textual commitments. State conflict over import duties was perhaps the defining policy controversy under the Articles of Confederation. At the nation’s Founding, the former colonies had just fought the Revolutionary War motivated in part by “taxation without representation.” Everyone understood that duties on imports would need to serve as the country’s primary source of revenue for decades to come—but state conflict rendered that option unavailable to the federal government. The lack of a federal impost crippled national finance and spurred the Constitutional Convention of 1787.

The Framers’ solution to this problem was to place control over import duties in the hands of a representative Congress, which could appropriately weigh the powerful and divergent interests at stake. In exchange, the states gave up their concurrent tariff authority—a fact that distinguishes tariffs from taxes writ large and weighs heavily against unbounded delegations to the President. The Framers and ratifiers believed that Congress, and not the President, was the appropriate institution for balancing interests in a new federal power that the states themselves would no longer possess. Indeed, in no less an authority than The Federalist No. 10, James Madison listed the proper treatment of foreign goods as his go-to example of a factional interest that would be refined by “passing [it] through the medium of a chosen body of citizens.” That “chosen body” was Congress, not the President.

Post-ratification practice confirms this structural understanding. Starting just days after the very first Congress achieved a quorum, early Congresses enacted repeated, extensive, and detailed tariff schedules—delegating only limited administrative details to the Executive Branch. The Executive’s role—which the Executive Branch itself understood—was confined to fact-finding and execution within these congressional boundaries.

Attaching a “foreign affairs” label to the tariffs at issue here makes no difference. Tariffs certainly carry diplomatic consequences. But that is nothing new. The founding generation understood it when they assigned the tariff authority to a representative Congress. The states understood it when they ceded their tariff authority in reliance on that power being wielded by a representative Congress. And the early Congresses understood it when they enacted extensive and detailed tariff legislation shot through with foreign affairs purpose and consequence.

The legislative delegation at issue in the International Emergency Economic Powers Act—if read to encompass the sweeping tariffs at issue here—cannot be squared with the Constitution’s textual allocation of authority, the original understanding of the tariff power, and post-ratification practice. This Court, moreover, has never upheld the boundless presidential authority that the Government now claims to draw from IEEPA. It should not break with more than two centuries of practice and understanding to do so for the first time here.

Keywords

Taxation, Tariffs, Import Taxes, Import Duties, International Emergency Economic Powers Act, Constitutional Law

Publication Citation

Brief for Tax Law Professors as Amici Curiae in Support of Petitioners in Learning Resources (No. 24-1287) and Respondents in V.O.S. Selections (No. 25-250) (October 24, 2025)

Comments

Available at SSRN: https://ssrn.com/abstract=5655190

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