An Originalist Reading of Trump’s IEEPA Tariffs

Justice Kavanaugh recently wrote, “history, not policy, is the proper guide” [1]. Justice Kavanaugh — and indeed the five other conservatives on the Supreme Court — may find that imperative hard to reconcile this term while considering Trump v. V.O.S. Selections, a challenge to President Trump’s signature tariff policies.

On September 9, 2025, the Supreme Court granted certiorari in V.O.S. Selections, Inc. v. United States and Learning Resources, Inc. v. Donald Trump (consolidated into one case). President Trump has asked the Court to overturn the affirmative declaratory judgment from the United States District Court for the District of Columbia on the May judgment from the United States Court of International Trade that blocked certain tariffs [2].

Tariffs are a cornerstone of President Trump’s economic agenda, with the weighted average tariff on imports rising to 17.7 percent — the highest level since 1934 [3]. Recent waves of levies have targeted imports from over 90 countries. Trump has largely relied on Section 1702(a)(1)(B) of the International Emergency Economic Powers Act (IEEPA), which permits the President to act in response to any “unusual and extraordinary threat” to the nation’s economy, national security, or foreign policy, provided he declares a national emergency [4].

Since the law’s passage in 1977, nearly every president has invoked IEEPA to varying degrees. President George W. Bush confiscated and vested Iraqi assets and imposed further economic sanctions on individuals associated with the 9/11 terror attacks [5]. President Barack Obama used IEEPA to impose sanctions on Russia for its 2014 invasion of Ukraine and on Iran for its nuclear program [6]. The key distinction in President Trump’s interpretation of IEEPA is the use of tariffs on imported goods, an economic power the Constitution grants to Congress. In their petition for a writ of certiorari, the government pointed to the plain text of IEEPA as justification for the tariffs, writing: 

“Under IEEPA, ‘[a]t the times and to the extent specified in section 1701,’ the President may ‘regulate…importation’ of ‘any property in which any foreign country or a national thereof has any interest’ or ‘any property, subject to the jurisdiction of the United States.’ The power to ‘regulate importation’ encompasses the power to impose tariffs or duties on imports. The ordinary meaning of “regulate” is to ‘fix, establish or control’ … That self-evidently covers the imposition of tariffs or duties” [7].

The petition’s reading of IEEPA misinterprets its text by detaching phrases from context. Section 1702(a)(1)(B) authorizes regulation of the “importation or exportation of currency or securities,” not all goods, showing Congress targeted financial transactions, not trade. The verbs “investigate, regulate, or prohibit” relate to blocking or freezing assets, not imposing tariffs. IEEPA also applies only to property with a foreign interest, unlike general tariffs. Its placement in Title 50 and omission of “tariff” or “duty” language confirm it concerns emergency economic controls, not customs policy. Applying the interpretative rules of ejusdem generis, “of the same kind” [8], and expressio unius, “the expression of one” [9], the statute’s structure and wording indicate no delegation of tariff authority, making the petition’s expansive interpretation of IEEPA erroneous.

Beyond the plain text analysis of the IEEPA, the Supreme Court’s established doctrines — particularly the nondelegation and the major questions doctrine — are in direct conflict with Trump’s broad, discretionary use of IEEPA to impose tariffs. Furthermore, given the historical grounds behind the IEEPA’s passage and Congress’s power of the purse, as well as the standard under which the Court has held similar exercises of federal/executive power, the Trump administration’s current tariff policy is not legal under IEEPA (nor any other statute). Thus, if the Court seeks to remain consistent with its own precedent, it must restore Congress’s constitutional authority over tariffs by declaring these tariffs illegal.

Under Article I of the Constitution, Congress is explicitly granted the power to impose tariffs and duties, and the Supreme Court has long recognized that this power cannot be ceded to the executive branch without clear, conditional guidance.

In Marshall Field & Co. v. Clark (1891), the Court examined the legality of the Tariff Act of 1890, sponsored by President William McKinley [10]. The Act modified the tariffs on a wide range of imported goods and granted the president authority to suspend the established duty-free status on imports if another country changed its tariffs in a way deemed harmful to U.S. industry and trade. While the Court ruled in McKinley’s favor, it stressed that it was because Congress passed the law. The president merely decided when it would precisely take effect, rather than unilaterally ordering the change. The president, Justice Harlan wrote for the unanimous Court, is “the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.” Here, the Court established its “nondelegation doctrine” [11], which prevents Congress from giving away its constitutional powers to other entities “not vested with legislative authority under the Constitution” [12].

That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution … Congress itself prescribed in advance the duties to be levied, collected, and paid (Field v. Clark).

The Founding Fathers agreed that Congress should control the power of the purse to check the executive branch, since the House of Representatives was the body most accountable to the people. 

In particular, the Framers recognized the dangers of arbitrary or excessive tariffs, and sought to place this power firmly in the hands of the legislative branch: “Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself,” wrote Alexander Hamilton in Federalist no. 35, “[t]hey tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes … the consumer generally pays the duty” [13].

This is not to say that the Framers were opposed to the government’s regulation of interstate and foreign trade [14]. Two years before the Constitutional Convention, James Madison wrote to James Monroe that some “power of regulating trade, to a certain degree at least, ought to be vested in Congress” [15]. The Constitution grants Congress several enumerated powers over trade. The Commerce Clause allows Congress to “regulate Commerce with foreign Nations” [16], Article I, Section 8, Clause 1 empowers Congress “to lay and collect Taxes, Duties, Imposts and Excises” [17], and the Import-Export Clause prohibits states from “lay[ing] any Imposts or Duties on Imports or Exports…without the consent of Congress” [18]. Even in 1788, Congress had to have supremacy over the powers of trade. Importantly, the Tariff Act of 1789 affirmed Congress’s power to regulate the government’s money. As such, the Legislature must now be the source of explicit approval and direction for tariffs.

In recent years, the Court has sought to emphasize Congress’s authority over the federal administration in deciding issues of “vast economic and political significance,” in what is now referred to as the “major questions doctrine” [19]. The broad scope of IEEPA has enabled presidents to invoke emergency powers at will, bypassing Congress to make major economic policy decisions — something that directly contradicts this doctrine. 

In United States v. Mead Corp (2001), Justice Scalia wrote for a unanimous Court that “when conferring decision-making authority upon agencies, Congress must lay down an intelligible principle to which the person or body authorized to act is directed to conform” [20]. In other words, broad statutory language cannot be interpreted to grant federal agencies unlimited authority. In West Virginia v. Environmental Protection Agency (2022), Chief Justice Roberts formalized this doctrine when ruling against the EPA, writing that nowhere in the Clean Air Act did Congress explicitly authorize the regulation of greenhouse gas emissions. There must be “‘clear congressional authorization’ for the authority it claims,” explained the Chief Justice, otherwise there is a problem of “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted” [21].

Meanwhile, in Trump v. Mazars L.L.P. (2020), the Supreme Court asserted that when considering the separation of powers, “the President is the only person who alone composes a branch of government.” Non-independent federal agencies are under the direct control of the president, as reinforced by rulings in Seila Law LLC v. Consumer Financial Protection Bureau (2020) [22], as well as Collins v. Yellen (2021) [23]. Given this context, it is not possible to draw a meaningful distinction between the president’s powers and those of the agencies. 

It could be argued, nevertheless, that the IEEPA does grant the president authority to issue tariffs, as Section 1702 allows for the regulation of “any transactions in foreign exchange.” The Court of Appeals dissent in V.O.S. Selections v. United States wrote: 

IEEPA embodies an eyes-open congressional grant of broad emergency authority in this foreign-affairs realm, which unsurprisingly extends beyond authorities available under non-emergency laws, and Congress confirmed the understood breadth by tying IEEPA’s authority to particularly demanding procedural requirements [24].

However, this interpretation of the IEEPA ignores the grounds under which it was passed. Prior to the IEEPA, the Trading with the Enemy Act (TWEA) gave presidents exceptional authority to regulate international trade, investment, migration, and communications between the United States and its adversaries [25]. The Act defined an “enemy” in broad terms, encompassing “any individual, partnership, or other body of individuals, of any nationality, resident …with which the United States is at war” [26].

Congress sought to check this increasingly expansive executive power, particularly after President Nixon’s broad 10 percent import tariff in response to the 1970s monetary crisis [27]. A special Senate investigation found that the United States had “been in a state of national emergency since March 9, 1933” and “at least 470 significant emergency statutes without time limitations delegating to the Executive extensive discretionary powers, ordinarily exercised by the Legislature, which affect the lives of American citizens in a host of all-encompassing ways” [28]. However, in the decades since the IEEPA’s instatement, the number of national emergencies invoking IEEPA and their duration has steadily risen [29]. As of September 1, 2025, there are 46 IEEPA-related national emergencies out of 51 total [30]. The current president has strayed from precedent in using IEEPA authorities as an expansion of non-IEEPA emergencies in his February orders, rather than declaring these new threats (an “invasion”) as unusual and extraordinary [31]. IEEPA was written specifically to reform executive emergency economic power and to make the Executive accountable to Congress. It cannot, as such, be used as a free pass for executive overreach.

On a textual and historical basis, the current tariffs issued under the IEEPA cannot stand. When considering the doctrines and recent precedent of the Court, these tariffs are also an overstep of executive authority. Furthermore, the Supreme Court has faced criticism for inconsistent application of its originalist and textualist principles. Key decisions in the past few terms have hinged on the Court’s 6–3 conservative supermajority [32]. In the 2021–22 term, the first term the current Court was in session, 74 percent of the rulings were conservative [33], hailed by the Senate Republican Committee as “possible because of the three justices nominated by President Trump and confirmed by Senate Republicans” [34]. In contrast, the Court has ruled against the Biden administration for similar overreaches of executive power, as in Biden v. Nebraska (2022) and West Virginia v. EPA (2022) [35]. Consistency with previous doctrines, precedents, and jurisprudence is crucial for the Supreme Court to maintain its credibility and to maintain a consistent playbook for this president and future presidents to follow.

References

[1] U.S. v. Rahimi, 602 U.S. ___  (2024) (Kavanaugh, J., concurring).

[2] Trump v. V.O.S. Selections, Inc. and Learning Resources, Inc. v. Donald J. Trump, Order Granting Certiorari (September 9, 2025),” SCOTUSblog, https://www.scotusblog.com/cases/case-files/trump-v-v-o-s-selections/.

[3] “The State of U.S. Tariffs,” Yale Budget Lab, August 7, 2025,https://budgetlab.yale.edu/research/state-us-tariffs-august-7-2025.

[4] International Emergency Economic Powers Act, 50 U.S.C. § 1702(a)(1)(B) (2025).

[5] “Executive Order 13224: Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism,” U.S. Department of State, https://www.state.gov/executive-order-13224/.

[6] For Russia, see “Russia and Ukraine Sanctions,” U.S. Department of State, https://2009-2017.state.gov/e/eb/tfs/spi/ukrainerussia/; for Iran, see  “Executive Order—Blocking Property of the Government of Iran and Iranian Financial Institutions,” The White House, Office of the Press Secretary, February 6, 2012, https://obamawhitehouse.archives.gov/the-press-office/2012/02/06/executive-order-blocking-property-government-iran-and-iranian-financial.

[7] Trump v. V.O.S. Selections, Inc., et al., Petition for a Writ of Certiorari, No. 25-250 (U.S. Sept. 3, 2025), https://www.supremecourt.gov/DocketPDF/25/25-250/373615/20250903200201802_Trump_v._VOS_petition-final.pdf.

[8] Ejusdem generis provides that when a general term follows a list of specific items, the general term is interpreted to include only items of the same type as those specifically listed. This rule prevents overly broad readings of catch-all clauses by tethering them to the character of enumerated examples. See Black’s Law Dictionary, 12th ed. (St. Paul, MN: Thomson Reuters, 2024), s.v. “ejusdem generis”; Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thomson/West, 2012), 199–213.

[9] Expressio unius est exclusio alterius (“the expression of one thing implies the exclusion of others”) instructs that when a statute explicitly enumerates certain items, it should be presumed to exclude those not mentioned. Courts use this principle to infer congressional intent where selective inclusion suggests deliberate omission. See Black’s Law Dictionary, 12th ed. (St. Paul, MN: Thomson Reuters, 2024), s.v. “expressio unius est exclusio alterius”; Scalia and Garner, Reading Law: The Interpretation of Legal Texts, 107–111; Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003).

[10] Field v. Clark, 143 U.S. 649 (1892).

[11] Joe Postell, “Field v. Clark (1892),” Constituting America, https://constitutingamerica.org/field-v-clark-1892-guest-essayist-joe-postell/.

[12] “Article I, Section 1: Legislative Powers,” Constitution Annotated, Library of Congress, https://constitution.congress.gov/browse/essay/artI-S1-5-1/ALDE_00000014/.

[13] Alexander Hamilton, The Federalist No. 35 (New York, 1788).

[14] “Power of the Purse,” History, Art & Archives, U.S. House of Representatives, https://history.house.gov/Institution/Origins-Development/Power-of-the-Purse/.

[15] David R. Henderson, “The Founders and Free Trade: The Foreign Commerce Power and America’s Economic Security,” The Heritage Foundation, https://www.heritage.org/american-founders/report/the-founders-and-free-trade-the-foreign-commerce-power-and-americas/.

[16] U.S. Const. art. I, § 8, cl. 3.

[17] U.S. Const. art. I, § 8, cl. 1.

[18] U.S. Const. art. I, § 10, cl. 2.

[19] West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022).

[20] United States v. Mead Corp., 531 U.S. 457 (2001), https://supreme.justia.com/cases/federal/us/531/457/.

[21] West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022) (Roberts, C.J., majority). 

[22] Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. ___ (2020) (holding that the structure of the CFPB, with a single director removable only for cause, violated the separation of powers because it unduly limited the President’s ability to oversee executive officers while performing executive functions).

[23] Collins v. Yellen, 594 U.S. ___ (2021) (affirming that Congress may create independent agencies but that for agencies with single directors exercising significant executive power, the President must retain removal authority, reinforcing the principle that non-independent agencies are directly under presidential control).

[24] V.O.S. Selections, Inc. v. Trump, 25-1812, 2025 U.S. App. LEXIS 22405, at *74–75 (Fed. Cir. Aug. 29, 2025) (Taranto, J., dissenting).

[25] Christopher A. Casey, Jennifer K. Elsea, and Liana W. Rosen, The International Emergency Economic Powers Act: Origins, Evolution, and Use, CRS Report R45618 (Washington, DC: Congressional Research Service, September 1, 2025), https://crsreports.congress.gov/product/details?prodcode=R45618.

[26] Trading with the Enemy Act, Pub. L. No. 65-91, ch. 106, 40 Stat. 411 (1917).

[27] U.S. Congress, Senate Subcommittee on International Trade and Commerce of the Committee on International Relations, Trading with the Enemy: Legislative and Executive Documents Concerning Regulation of International Transactions in Time of Declared National Emergency, committee print, 94th Cong., 2nd sess., November 1976 (Washington, DC: GPO, 1976), p. iii.

[28] U.S. Congress, A Brief History of Emergency Powers in the United States (Washington, DC: Government Printing Office, n.d.).

[29] Christopher A. Casey, Jennifer K. Elsea, and Liana W. Rosen, The International Emergency Economic Powers Act: Origins, Evolution, and Use, CRS Report R45618 (Washington, DC: Congressional Research Service, September 1, 2025), https://crsreports.congress.gov/product/details?prodcode=R45618.

[30] Ibid. 

[31] Executive Order 14193 of February 1, 2025, “Imposing Duties To Address the Flow of Illicit Drugs Across Our Northern Border,” 90 Federal Register 9113, February 7, 2025; Executive Order 14194 of February 1, 2025, “Imposing Duties To Address the Situation at Our Southern Border,” 90 Federal Register 9117, February 7, 2025; Executive Order 14195 of February 1, 2025, “Imposing Duties To Address the Synthetic Opioid Supply Chain in the People's Republic of China,” 90 Federal Register 9121, February 7, 2025.

[32] “Charting the Justices’ Decisions Cutting Across Ideological Lines,” Empirical SCOTUS, April 1, 2024, https://empiricalscotus.com/2024/04/01/charting-the-justices-decisions-cutting-across-ideological-lines/.

[33] This data was from the Supreme Court Database, which categorizes rulings as ideologically conservative or liberal. Adam Liptak, “A Supreme Court Term Marked by Divisive Rulings,” The New York Times, July 1, 2022, https://www.nytimes.com/2022/07/01/us/supreme-court-term-roe-guns-epa-decisions.html.

[34] “Conservative Victories at the Supreme Court,” Republican Policy Committee (RPC), https://www.rpc.senate.gov/policy-papers/conservative-victories-at-the-supreme-court.

[35] Biden v. Nebraska, 600 U.S. ___ (2023) (holding that the Secretary of Education exceeded his authority under the HEROES Act by implementing a sweeping student loan forgiveness program without clear congressional authorization).