Our Amicus Brief in the Section 122 Tariff Case

Earlier today, the Cato Institute and I filed an amicus brief in Burlap and Barrel, Inc. v. Trump, one of the cases challenging Trump’s massive new Section 122 tariffs before the US Court of International Trade. The case  was filed by the Liberty Justice Center (LJC), the same public interest group that I worked with on the earlier case that led to the invalidation of Trump’s earlier IEEPA tariffs by the Supreme Court. I am not one of the attorneys representing the plaintiffs in this new case. But Cato and I are happy to support LJC and others in this important cause. For that reason, I wrote this brief.

Here is an excerpt from the Introduction to our brief, which summarizes our arguments:

Since the invalidation of the massive International Emergency Economic Powers Act (IEEPA) tariffs, by the Supreme Court in Learning Res., Inc. v. Trump, 146 S. Ct. 628 (2026),  the President has sought to effect a similar usurpation of congressional tariff authority by using Section 122 of the Trade Act of 1974 to impose 10 percent tariffs (likely to be increased to 15 percent) on imports from almost all our trading partners. This sweeping imposition is just as illegal as the previous one was, and for many of the same reasons.

Part I briefly explains why Section 122 simply cannot be used in current circumstances. The statute only permits tariffs for up to 150 days in response to “fundamental international payments problems” that cause “large and serious United States balance-of-payments deficits” or “an imminent and significant depreciation of the dollar,” or create a need to cooperate with other countries in addressing an “international balance-of-payments disequilibrium.” 19 U.S.C. § 2132(a). These conditions simply cannot exist in a flexible exchange rate regime of the sort in place today.

In Part II, amici explain why, if there is any ambiguity about whether Section 122 authorizes the massive tariffs imposed by the administration, the major questions doctrine (MQD) requires this issue to be resolved against the Defendants. The major questions doctrine requires Congress to “speak clearly” when it assigns to the executive “decisions of vast ‘economic and political significance.’” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014). The impact of the massive new Section 122 tariffs is as large or larger than many previous policies invalidated by the Supreme Court on major questions doctrine grounds. And the tariff power is not exempt from major questions scrutiny on the supposed ground that it is a “foreign affairs” power. The major questions doctrine also counts against giving the administration a blank check in determining whether the preconditions to invoke Section 122 exist.

Part III shows that, if Section 122 did grant the President the power he claims, it would violate the nondelegation doctrine, which constrains transfer of legislative power to the executive. “[T]he core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution.” V.O.S. Selections v. Trump, 149 F.4th 1312, 1332 (Fed. Cir. 2025), aff’d sub nom. Learning Res., 146 S. Ct. 628 (2026). If the Defendants’ interpretation of Section 122 is correct, the President could claim there is a balance-of-payments crisis at virtually any time and repeatedly impose 15% tariffs against virtually any imports from any country, circumventing the 150-day time restriction simply by declaring a new balance-of-payments problem exists when earlier tariffs expire. Such a sweeping delegation of a core congressional power would violate the requirements that Congress cannot make “boundless” delegations of the power to tax, and that “[t]he ‘guidance’ needed is greater when an agency action will ‘affect the entire national economy’ than when it addresses a narrow, technical issue.” FCC v. Consumers’ Research, 145 S. Ct. 2482, 2497, 2501 (2025) (quotation omitted).

Cato and I are grateful to Joshua Claybourn of Jackson Kelly, PLLC, and his firm for their invaluable assistance in helping draft, format, and file the brief on short notice.

I have previously written about the Section 122 tariffs and the important issues they raise here, here, and here.

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