2 Law Professors Tell SCOTUS History Dictates IEEPA Doesn't Confer Tariff Power
Two law professors focusing on sanctions law filed an amicus brief at the Supreme Court on Oct. 22 focusing on the history of the International Emergency Economic Powers Act. The professors, Fordham School of Law's Andrew Kent and University of Virginia School of Law's Paul Stephan, argued that IEEPA, which confers emergency powers for peacetime, doesn't let the president impose tariffs on imports and "stands in contrast" with the Trading With the Enemy Act, which "authorizes war powers" (Donald J. Trump v. V.O.S. Selections, U.S. 25-250) (Learning Resources v. Donald J. Trump, U.S. 24-1287).
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IEEPA "drew a clear line between emergency powers for peacetime and powers that come into existence only upon the declaration of war," the professors said, adding that while IEEPA and TWEA have some common language, "they proceed from different constitutional foundations, serve different purposes, and work within different legal contexts." Only TWEA lets the president "confiscate alien property or any inferred lesser power to impose exactions such as tariffs or taxes," the brief said.
The arguments from Kent and Stephan addressed the claims made by another amicus and colleague of Stephan at UVA, Aditya Bamzai, which claimed that wartime powers have historically included the power to tax and that IEEPA should be read to include these powers (see 2509240056). Bamzai rested his case on various Supreme Court cases to consider different presidents' use of wartime tariff powers.
For instance, in Cross v. Harrison, the high court upheld President James Polk's decision “to impose duties on imports” as military contributions “for the support of the government,” agreeing that it was in line with the “general principles in respect to war and peace between nations.”
In response, Kent and Stephan said Cross, and cases like it, "express the principle that a military government over conquered enemy territory may 'displace the preexisting authority' and 'exercise by itself . . . all the powers and functions of government[,]' including the power to 'prescribe the revenues to be paid' within the territory, in order to 'strengthen itself and weaken the enemy.'" TWEA didn't consider instances of "governance of occupied territories" and thus didn't address the matter, the professors said.
Kent and Stephan said that before World War I, Congress occasionally gave the president the authority to "license transactions that crossed enemy lines as part of a general ban on trading with the enemy." However, there's no evidence that a president ever used this power to "derive revenue from commerce with persons actively engaged in war with the United States," the brief said.
The law professors centered on the history of IEEPA and TWEA. The brief noted that the president was first given the power to "regulate ... importation" of property in which a foreign party has an interest, in TWEA after World War I. This power broke from "historical wartime practice" by the fact that it was extended to "imports from all countries, not just imports from enemy states or on behalf of enemy aliens." The World War I version of the statute "banned commercial intercourse with the enemy," let the president regulate a "limited range of international transactions affecting the financial system" and let the president generally control imports during the duration of the war and seize enemy property.
After World War I, TWEA was amended to link the power to "regulate" imports directly to the power to "vest" ownership of alien property in the U.S. "There is no indication of a connection to tariffs or taxes, which other contemporaneous legislation addressed in detail," the brief said. Critically, IEEPA limited the scope of TWEA's power by striking out "all references to asset confiscations." Thus, the IEEPA authority "does not invoke traditional wartime powers to alter the ownership of enemy property interests," the professors said.
Taking property just because of the identity of the owner, instead of as a forfeiture penalty for an independent legal violation or as a "lawfully authorized tax," is only allowed during a war, the brief said. "Congress adopted IEEPA precisely to end the ambiguity posed by the previous version of TWEA as to whether the President could exercise war powers during peacetime, particularly the power to impose exactions on property and transactions for no reason other than the involvement of an alien," the brief said.
IEEPA was then amended after the 9/11 terrorist attacks to give the president "an exceptional authority to confiscate the property of states or persons engaged in an attack" on the U.S., and again after Russia's invasion of Ukraine to let the president use Russia's frozen assets for Ukraine. The confiscation power wasn't extended "further than authorizing these specific measures," the professors argued. IEEPA thus doesn't let the president "impose otherwise unauthorized exactions or financial penalties on property subject to IEEPA," the brief said.