(a)In general

(1)At the times and to the extent specified in section 1701 of this title, the President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise-

(A)investigate, regulate, or prohibit-

(i) any transactions in foreign exchange,

(ii) transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof,

(iii) the importing or exporting of currency or securities,

by any person, or with respect to any property, subject to the jurisdiction of the United States;

(B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States; and.[1]

(C) when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States; and all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms directed by the President, in such agency or person as the President may designate from time to time, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes.

(2) In exercising the authorities granted by paragraph (1), the President may require any person to keep a full record of, and to furnish under oath, in the form of reports or otherwise, complete information relative to any act or transaction referred to in paragraph (1) either before, during, or after the completion thereof, or relative to any interest in foreign property, or relative to any property in which any foreign country or any national thereof has or has had any interest, or as may be otherwise necessary to enforce the provisions of such paragraph. In any case in which a report by a person could be required under this paragraph, the President may require the production of any books of account, records, contracts, letters, memoranda, or other papers, in the custody or control of such person.

(3) Compliance with any regulation, instruction, or direction issued under this chapter shall to the extent thereof be a full acquittance and discharge for all purposes of the obligation of the person making the same. No person shall be held liable in any court for or with respect to anything done or omitted in good faith in connection with the administration of, or pursuant to and in reliance on, this chapter, or any regulation, instruction, or direction issued under this chapter.

(b)Exceptions to grant of authority

The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly-

(1) any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value;

(2) donations, by persons subject to the jurisdiction of the United States, of articles, such as food, clothing, and medicine, intended to be used to relieve human suffering, except to the extent that the President determines that such donations (A) would seriously impair his ability to deal with any national emergency declared under section 1701 of this title, (B) are in response to coercion against the proposed recipient or donor, or (C) would endanger Armed Forces of the United States which are engaged in hostilities or are in a situation where imminent involvement in hostilities is clearly indicated by the circumstances; or [2]

(3) the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. The exports exempted from regulation or prohibition by this paragraph do not include those which are otherwise controlled for export under section 4604 [3] of this title, or under section 4605 [3] of this title to the extent that such controls promote the nonproliferation or antiterrorism policies of the United States, or with respect to which acts are prohibited by chapter 37 of title 18; or

(4) any transactions ordinarily incident to travel to or from any country, including importation of accompanied baggage for personal use, maintenance within any country including payment of living expenses and acquisition of goods or services for personal use, and arrangement or facilitation of such travel including nonscheduled air, sea, or land voyages.

(c) Classified information 

In any judicial review of a determination made under this section, if the determination was based on classified information (as defined in section 1(a) of the Classified Information Procedures Act) such information may be submitted to the reviewing court ex parte and in camera. This subsection does not confer or imply any right to judicial review.

(Pub. L. 95–223, title II, § 203, Dec. 28, 1977, 91 Stat. 1626; Pub. L. 100–418, title II, § 2502(b)(1), Aug. 23, 1988, 102 Stat. 1371; Pub. L. 103–236, title V, § 525(c)(1), Apr. 30, 1994, 108 Stat. 474; Pub. L. 107–56, title I, § 106, Oct. 26, 2001, 115 Stat. 277.)

The court quotes § 1702 beginning at subsection (A) and ignores the language from (a)(1) immediately above it that says “under such regulations as he may prescribe” (my emphasis above). That’s the phrase that renders their summary judgement moot and why it should fail the rest of the way. They plaintiffs and the court may not like it but Congress indeed did grant this authority to the president. The court could have ruled the law itself unconstitutional, but they didn’t do that–they ruled that the president exceeded his authority under the law. Bzzzt. Wrong! This is the reason we quoted the entirety of both sections so you can see the breadth of the authority and the exceptions to Congress’s grant of authority to the president. The court makes sweeping separation of powers wavy hand motions to distract you from its sin of omission because “under such regulations as he may prescribe” trumps them, pun intended.

The court claims that it’s unconstitutional for the president to “impose unlimited tariffs”, but the tariffs imposed by President Trump are clearly limited by IEEPA under § 1702 and the court ignores his power to determine the regulations of his declaration. They dance around the issue using what is called the Major Questions Doctrine, which limits the scope of authority that federal agencies or the executive branch can exercise under ambiguous statutes. The statute is no more ambiguous than endless reams of federal law that cedes power from Congress to the president through phrases like, “by such rules as the Secretary adopts” or as “such as the Secretary determines”. Here, though, the declaration is personal to the president and not a Cabinet secretary’s authority under the Executive branch.

Originalist Critique

This critique evaluates whether the CIT’s interpretation aligns with that original meaning and whether its application of the nondelegation and major questions doctrines, as well as its reading of IEEPA’s scope, adheres to the statute’s text, structure, and legislative history as understood in 1977.

1. Misapplication of the Major Questions Doctrine

The CIT heavily relies on the major questions doctrine to conclude that IEEPA does not authorize the President to impose broad tariffs due to their “vast economic and political significance” (Page 27). An originalist critique would argue that this doctrine, as articulated in cases like West Virginia v. EPA (2022), is a modern judicial construct that postdates IEEPA’s enactment by decades. In 1977, the major questions doctrine did not exist in its current form. The controlling precedent for delegation was the nondelegation doctrine, which required only an “intelligible principle” to guide executive action (J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). The CIT’s application of the major questions doctrine imposes a requirement for “clear congressional authorization” (Page 27) that was not part of the legal framework when IEEPA was enacted.

An originalist reading would focus on whether IEEPA’s text provides an intelligible principle, not whether Congress “spoke clearly” on a matter of vast significance. Section 1702(a)(1)(B) grants the President authority to “regulate … importation … of … any property in which any foreign country or a national thereof has any interest,” conditioned on a declared national emergency under § 1701. This language, drawn from the Trading with the Enemy Act (TWEA), was understood in 1977 to include broad powers to impose economic measures, including tariffs, as evidenced by United States v. Yoshida Int’l, Inc. (526 F.2d 560, 576 (C.C.P.A. 1975)), which upheld a 10% import surcharge under TWEA. The CIT acknowledges Yoshida II but distinguishes it by emphasizing the “limited” nature of Nixon’s tariffs (Page 30). However, an originalist would argue that the CIT’s insistence on “clear” authorization misaligns with the 1977 understanding that broad delegations were permissible if guided by an intelligible principle, such as responding to an “unusual and extraordinary threat” (§ 1701).

2. Overly Narrow Interpretation of “Regulate … Importation”

The CIT holds that the phrase “regulate … importation” in § 1702(a)(1)(B) does not confer “unlimited tariff authority” because such a reading would be unconstitutional (Page 28–30). An originalist critique would argue that this interpretation unduly narrows the plain meaning of the text as understood in 1977. The term “regulate” in the context of commerce was historically broad, encompassing measures like tariffs, quotas, or embargoes to control trade. The Yoshida II court, interpreting identical language in TWEA, found that “regulate … importation” included imposing a tariff surcharge as a reasonable means to address a national emergency (526 F.2d at 576). IEEPA’s legislative history confirms that Congress adopted TWEA’s language intentionally, suggesting continuity in the scope of authority (H.R. Rep. No. 95-459, at 2 (1977)).

The CIT’s conclusion that IEEPA’s tariff authority is narrower than TWEA’s (Page 31) relies on legislative history indicating Congress’s intent to limit presidential power. However, an originalist would prioritize the text over legislative history unless the text is ambiguous. Section 1702(a)(1)(B) uses the same “regulate … importation” language as TWEA, without explicit textual limits on tariff authority beyond the emergency declaration requirements in § 1701. The CIT’s assertion that unlimited tariffs are unconstitutional ignores the 1977 context, where broad delegations were upheld unless they lacked any guiding principle (Mistretta v. United States, 488 U.S. 361, 372 (1989)). The requirement of an “unusual and extraordinary threat” and a declared national emergency provides such a principle, suggesting the CIT’s narrow reading departs from the original meaning.

3. Misconstruction of § 1701’s “Deal With” Requirement

The CIT rules that the Trafficking Tariffs do not “deal with” the declared threats (e.g., drug trafficking and border security) because they lack a direct connection to the stated emergencies, instead serving as “leverage” to pressure foreign governments (Page 44–46). An originalist critique would argue that the court’s interpretation of “deal with” is overly restrictive and inconsistent with the 1977 understanding of IEEPA’s purpose. The phrase “deal with” is broad and not defined in the statute, but its ordinary meaning in 1977 would include actions intended to address or mitigate a threat, even indirectly. The Yoshida II court upheld tariffs under TWEA because they had a “direct effect” on the balance-of-payments deficit (526 F.2d at 580), but it did not require a direct causal link between the action and the elimination of the threat. Similarly, Regan v. Wald (468 U.S. 222, 243 (1984)) upheld travel restrictions under IEEPA to curtail currency flows to Cuba, even though the restrictions did not directly stop Cuban activities.

In 1977, Congress intended IEEPA to grant the President flexible tools to address international economic threats, as seen in its use of TWEA’s broad language and the House report’s acknowledgment of IEEPA’s role in peacetime emergencies (H.R. Rep. No. 95-459, at 2). The CIT’s requirement that tariffs directly address the threat (e.g., by targeting smuggled drugs) ignores the statute’s purpose of enabling economic pressure tactics, such as tariffs, to influence foreign behavior. The Trafficking Tariffs, aimed at pressuring Canada, Mexico, and China to combat trafficking, fit within this original understanding of “deal with” as encompassing measures to influence foreign conduct, not just direct interventions.

4. Overreliance on Section 122 of the Trade Act of 1974

The CIT argues that the Worldwide and Retaliatory Tariffs, imposed to address trade deficits, fall under Section 122 of the Trade Act of 1974 (19 U.S.C. § 2132), which limits presidential tariff authority for balance-of-payments deficits to a 15% cap and 150-day duration (Page 33–35). An originalist critique would question this conclusion, as Section 122 does not explicitly preclude IEEPA’s use for trade-related emergencies. In 1977, Congress was aware of Yoshida II’s approval of tariffs under TWEA for balance-of-payments issues and adopted similar language in IEEPA without excluding trade deficits from its scope. The CIT’s reliance on Section 122 assumes that Congress intended to cabin all trade-related tariffs to non-emergency statutes, but the legislative history cited (H.R. Rep. No. 95-459, at 7, 10–11) only generally calls for transferring “routine” economic regulation to other laws, not emergencies involving trade deficits.

An originalist would argue that the CIT’s reading creates a conflict between statutes that the 1977 Congress did not intend. Section 122 addresses specific, non-emergency balance-of-payments issues, while IEEPA covers broader, emergency-based actions. The Worldwide and Retaliatory Tariffs, tied to a declared emergency over trade imbalances as threats to national security and the economy (Executive Order 14257, 90 Fed. Reg. 15041), fit within IEEPA’s textual scope. The CIT’s conclusion that Section 122 exclusively governs trade deficits lacks textual support in IEEPA and imposes a limitation not clearly present in 1977.

5. Neglect of IEEPA’s Emergency Context

The CIT’s analysis underemphasizes the emergency context of IEEPA, which an originalist would view as central to its 1977 meaning. Section 1701 requires an “unusual and extraordinary threat” and a declared national emergency, reflecting Congress’s intent to grant the President broad but conditional authority to act swiftly in crises. The CIT’s concern about “unlimited” tariff authority (Page 28) overlooks the statutory constraints: the President must identify a specific threat, declare an emergency, and report to Congress (50 U.S.C. §§ 1701, 1703). These requirements, combined with the NEA’s biannual review (50 U.S.C. § 1622), were understood in 1977 as sufficient checks on executive power, as seen in the legislative history emphasizing procedural limits over substantive ones (H.R. Rep. No. 95-459, at 2).

The CIT’s ruling that the tariffs are “ultra vires” (Page 36) because they exceed IEEPA’s scope ignores the statute’s design to allow flexible responses to emergencies. For example, the Yoshida II court upheld tariffs under TWEA because they were “reasonably related” to the emergency (526 F.2d at 578–79), a standard the CIT applies inconsistently by demanding a direct link for the Trafficking Tariffs. An originalist would argue that the President’s declarations of emergencies (e.g., drug trafficking, trade deficits) satisfy § 1701’s conditions, and the tariffs, as economic pressure tools, fall within the original meaning of “regulate … importation.”

6. Judicial Overreach in Reviewing Statutory Compliance

The CIT rejects the Government’s argument that the political question doctrine bars review of whether the tariffs “deal with” the declared threats, asserting that § 1701’s conditions are justiciable (Page 37–43). An originalist critique would argue that this approach risks judicial overreach by second-guessing the President’s emergency powers. In 1977, Congress enacted IEEPA against the backdrop of cases like Yoshida II, which deferred to the President’s determination of a national emergency’s existence and the means to address it (526 F.2d at 581 n.32). The CIT cites Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579 (1952)) to frame its role as determining statutory authority (Page 40), but an originalist would note that IEEPA’s text does not explicitly authorize courts to scrutinize the “deal with” requirement beyond ensuring a declared emergency exists.

The CIT’s reliance on cases like Japan Whaling Ass’n v. Am. Cetacean Soc’y (478 U.S. 221, 230 (1986)) to justify statutory interpretation (Page 39) is anachronistic, as that case postdates IEEPA and reflects a modern view of judicial review. In 1977, courts were more deferential to executive emergency actions, as seen in Yoshida II’s reluctance to probe the President’s rationale (526 F.2d at 583). The CIT’s detailed scrutiny of the tariffs’ connection to the stated threats (Page 44–46) exceeds the original understanding of IEEPA’s judicial role, which was limited to ensuring compliance with procedural requirements like emergency declarations and congressional reporting.

Conclusion

From an originalist perspective, the CIT’s opinion misinterprets IEEPA by:

1. Applying the anachronistic major questions doctrine instead of the 1977 nondelegation standard.

2. Narrowing “regulate … importation” beyond its broad 1977 meaning, as informed by Yoshida II.

3. Construing “deal with” too restrictively, ignoring IEEPA’s purpose of enabling flexible emergency responses.

4. Overrelying on Section 122 to limit IEEPA’s scope without clear textual or historical support.

5. Underemphasizing IEEPA’s emergency context and its procedural checks.

6. Engaging in excessive judicial review of the President’s emergency powers, contrary to 1977 deference standards.

An originalist would argue that IEEPA’s text, as understood in 1977, permits the President to impose tariffs as a means to “regulate … importation” in response to declared national emergencies, provided they meet § 1701’s conditions. The CIT’s ruling, by imposing modern doctrinal constraints and a narrow reading of the statute, departs from the original public meaning and undermines the flexibility Congress intended for the President in addressing international economic threats.

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