Trump-Aligned Amicus Tells CAFC That IEEPA Tariffs Are Valid Under Section 338

The CAFC appeal concerns Trump's tariffs imposed to address U.S. trade deficits and the flow of fentanyl into the U.S. The Court of International Trade recently vacated the orders implementing the tariffs, finding that IEEPA doesn't provide the president with the authority to impose tariffs to address a trade imbalance and that the fentanyl tariffs don't "deal with" the declared emergency (see 2505280068). The Federal Circuit stayed this decision while it mulls the government's appeal (see 2505290039).

In defense of Trump's tariff action, the America First Policy Institute argued that CIT forgot to consider whether the orders are a valid exercise of Section 338 -- a statute that lets the president impose tariffs on any country up to 50% "whenever the President shall find as a fact that any foreign country places any burden or disadvantage" on U.S. commerce.

The amicus brief noted that Trump's orders invoked "the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act." This "non-exclusive reference to the IEEPA" allows the court to find the tariffs to be a valid exercise of Section 338, the brief said, adding that it's "well established that an Executive Order can be sustained under a statute the Order itself did not cite."

The institute noted that the key precedent on the use of IEEPA to impose tariffs, Yoshida International v. U.S., was a case in which President Richard Nixon took tariff action under a different authority but ultimately saw that tariff action sustained under IEEPA, despite the fact that Nixon didn't claim authority under IEEPA.

Under Section 338, the president can impose tariffs on any country up to 50% without "prior investigation or action by any agency," or, really, any procedure at all. "Rather, the President may simply 'by Proclamation' set and impose offsetting tariffs at his discretion on 'any foreign country' he finds to be placing any such 'burden or disadvantage on United States commerce,'" the brief said. Congress delegated this power to the president "to ensure that American tariffs could be adjusted rapidly and frequently (which is difficult if not impossible for Congress itself to do) in response to changing circumstances," the brief said.

The institute then argued that both the reciprocal and the fentanyl trafficking tariffs are "squarely covered" by Section 338.

The order implementing the reciprocal tariffs "expressly declares that tariffs are necessary because 'disparate tariff rates and non-tariff barriers' imposed by the affected countries 'make it harder for U.S. manufacturers to sell their products in foreign markets,' 'while artificially increasing the competitiveness of their goods in global markets,'" the institute noted. The order also discusses WTO data for countries that show higher tariffs on U.S. goods than the U.S. charges for foreign goods, the institute said.

As a result, the reciprocal tariffs "are based on cited-to findings of exactly the kind specified by Section 338 of the Tariff Act of 1930," the brief said.

As for the fentanyl trafficking tariffs, the institute said "drug-caused deaths and severe strain on the healthcare system impose serious burdens on U.S. commerce" and that Section 338 lets the president impose tariffs on countries when the president finds that any foreign country places a burden on U.S. commerce "directly or indirectly, by law or administrative regulation or practice, by or in respect to any … prohibition.” The amicus brief said that since the tariffs target countries Trump has found to be "indirectly" causing a "burden" on U.S. commerce due to practices relating to the U.S. prohibition of certain narcotics, "those tariffs also fall within the ambit of Section 338."