Ninety years ago, the Supreme Court unanimously held in Humphrey’s Executor that it was unlawful for President Franklin Delano Roosevelt to fire a Federal Trade Commissioner without cause. By now seeking to remove Federal Trade Commissioner Rebecca Kelly Slaughter without cause, President Trump has asked this Supreme Court to confront the exact same issue. Will the Court consider itself bound by stare decisis and long-settled congressional and executive practice? And given the reliance of Humphrey’s Executor on Framing-era history, and subsequent analysis of that history by originalist scholars, will the Court follow or depart from a commitment to originalism?

Congress created the Federal Trade Commission (FTC) in 1914 to prevent “unfair methods of competition in or affecting commerce.” See 15 U.S.C. §45. The FTC is made up of five Commissioners appointed by the president by and with the advice and consent of the Senate; no more than three of the Commissioners can be members of the same political party. Id. §41. Commissioners may be removed by the president “for inefficiency, neglect of duty, or malfeasance in office.”  Id. §41.

Without reference to this “for-cause” standard for removal, President Trump informed Commissioner Slaughter by email in March 2025 that he was removing her from her position pursuant to the president’s Article II authority. The president’s message asserted that Commissioner Slaughter’s “continued service on the FTC is inconsistent with my Administration’s priorities.”  Slaughter v. Trump, No. 25-909 at pg. 4-5. Commissioner Slaughter challenged the president’s action in court.

On July 17, 2025, the United States District Court for the District of Columbia granted Commissioner Slaughter both a declaration that the president’s actions had violated the law and an injunction preventing her removal. Id. pg. 32 and 41. The court found the president’s action “unlawful and without legal effect” because the president had not complied with the removal provisions of the FTC Act and because “[t]hose provisions remain constitutional, as they have for almost a century . . . ” Id. at pg. 31.

On Sept. 2, 2025, the United States Court of Appeals for the District of Columbia Circuit, by a two-to-one vote, denied the Administration’s motion for a stay pending appeal.  The Court of Appeals found that the Administration had no likelihood of success on the merits, given the “controlling and directly on point Supreme Court” precedent of Humphrey’s Executor. Id. at pg. 2.

On Sept. 22, 2025, the Supreme Court, in a six–to-three ruling, stayed the July 17, 2025 decision of the District Court. Treating the Administration’s application for a stay as also a petition for a writ of certiorari before judgment, the Court granted the petition and directed the parties to brief the following questions, concerning constitutionality and remedy:

“(1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled.

(2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.”

Briefs addressing these questions have now been filed by the parties and by 51 amici curiae: 16 in support of the Administration, 32 in support of Commissioner Slaughter, and 3 for neither party. Ahead of the Court’s oral argument on December 8, 2025, this “bench memorandum” provides a concise reader’s guide to the main arguments of the parties and the amici.

Donald J. Trump, President of the United States, et al.: Overview of Petitioners’ Arguments

The Petitioners in this case (hereinafter “the Administration”) urge the Supreme Court to reject the lower court’s holding that the president’s attempt to remove Commissioner Slaughter was unlawful and without legal effect.

• Separation of Powers: The Administration argues first that the FTC’s removal protections violate the separation of powers. The Vesting and Take Care Clauses of Article II of the Constitution, the Administration asserts, give the President “conclusive and preclusive” removal authority. As additional support for this proposition, the Administration cites the First Congress’s debate over the creation of a Department of Foreign Affairs — frequently referred to as “the Decision of 1789” — which the Administration claims demonstrates that the Constitution was intended to give the president sole and unlimited removal powers. The Administration also relies on Myers v. United States — a decision that predated Humphrey’s Executor — as authority for the proposition that the “power to control executive officers includes the power to remove them.” See Br. of Pet. at 9 and 16. The Court’s subsequent ruling in Humphrey’s Executor, the Administration argues, should not control here, for two reasons. First, the Administration argues that Humphrey’s Executor was wrong in 1935, but is even more so today, since the FTC of today has “executive” powers that exceed those before the Court then. Second, in any event, the Administration asserts that, “[i]f anything of Humphrey’s Executor is left,” Br. of Pet. 11, the decision should be overturned on the grounds that it was “‘egregiously wrong from the start,’” since it contradicts constitutional text, historical practice, and established removal precedent. In the modern era, the Administration further argues, the framework of Humphrey’s Executor is unworkable and inconsistent with democratic accountability.

• Judicial Power and Remedies: The Administration also argues that courts cannot prevent the removal or order the reinstatement of executive officers. It would violate Article II, the Administration asserts, for courts to enforce statutory removal limits by ordering the reinstatement of officers that the president has chosen to remove. Doing so, the Administration claims, would force a president to “entrust executive power” to an officer who he or she had determined ought not to be given executive authorities, raising separation of powers issues beyond those argued above. The Administration also looks to precedent, saying that in the past, those who challenged their firings have sought back pay, and only rarely reinstatement; the Administration acknowledges that a district court did enjoin the removal of members of the U.S. Commission on Civil Rights in 1983, but treats that case as distinguishable, asserting  that the court made that ruling because the Commission functioned as a legislative agency. Furthermore, the Administration asserts that equity has long barred courts from enjoining executive removals (or issuing declaratory judgments or utilizing mandamus to prevent the removal of executive officers), and that while the Civil Service Reform Act (CSRA) contemplates reinstatement in some circumstances, CSRA allows action only through the Merit Systems Protection Board, not district courts. In any case, the Administration argues, these judicial remedies are not available to presidential appointees like an FTC Commissioner.

Commissioner Rebecca Kelly Slaughter, et al.: Overview of Respondents’ Arguments

The Respondents (hereinafter “the Commissioner”) urge the Supreme Court to uphold the District Court’s finding that the removal was unlawful and without legal effect.

• Separation of Powers: First, the Commissioner argues that the FTC removal protections are inherently constitutional and consistent with historical practice with respect to all three branches of government. From the Founding-era, the Commissioner asserts, Congress has created multimember commissions – like the Sinking Fund Commission, the Revolutionary War Debt Commission, the Federal Reserve, and dozens more – whose members were not removable at will. The Commissioner also argues that presidents have continued to staff such bodies since the Founding-era in a way that reflects an unbroken political-branch acceptance of removal protections. The Supreme Court itself has also upheld removal protection structures, the Commissioner emphasizes, in settled case law that includes Humphrey’s Executor, Free Enterprise Fund, and Seila Law, which together establish that Congress may protect traditional multimember commissions by requiring for-cause removal without violating the separation of powers. The Commissioner further argues that the Constitution contains no textual basis to support an unchecked removal power across all areas of governance. Finally, stare decisis heavily favors retaining Humphrey’s Executor, the Commissioner claims, since overruling that case would destabilize nine decades of settled precedent (and the structuring of dozens of administrative agencies on its basis), and Congress and the president can address any problems with the FTC by exercising their various authorities to modify the agency’s structure or authorities.

• Judicial Power and Remedies: Second, the Commissioner argues that courts have the power to reinstate officials following improper removal, as shown by history and precedent. According to the Commissioner, reinstatement of officials — by way of mandamus, injunctions, and declaratory judgements — has been a remedy relied on since the Founding-era, and even beforehand in English and colonial cases. No federal statute, the Commissioner asserts —including the CSRA — has eliminated the right to such a remedy for officers like Commissioner Slaughter.

Arguments of Amici

Sixteen groups of amici –– including public-interest law firms, law professors, a Republican Senator, the Chamber of Commerce, two former Attorneys General, and nonprofit organizations –– filed briefs in support of the Administration. Thirty-two groups of amici — including former high-ranking Republican officials, bipartisan former chairs of several multimember agencies, law professors and historians, nonprofit groups, current and former members of Congress, twenty-three states, and retired federal judges –– support the Commissioner. Three amicus briefs were filed in support of neither party.

Not surprisingly, the arguments of the amici track in significant part those made by the parties.  The themes that receive more extended attention from the amici are addressed below.

• Original Meaning and Intent

○ Arguments of Amici Supporting the Administration:

• A number of amici in favor of the Administration argue that historical evidence establishes that the Constitution’s Framers intended that the president have unlimited authority to remove executive officials.

• Following the Administration’s line of argumentation, these amici point to the Decision of 1789 as having largely settled the constitutional question in favor of executive removal power. Professor Ilan Wurman contends that the Framers and subsequent generations “all generally accepted, especially after the debates of 1789, that the President had a constitutional right to remove.” Former Attorneys General Meese and Mukasey offer agreement with this proposition. Amici further argue that the Necessary and Proper Clause does not authorize Congress to condition this power. Amici Meese and Mukasey also point to further history beyond the Decision of 1789: they cite removals of executive officers by the Washington, Adams, and Jefferson presidencies, while amicus Wurman looks to letters written by Thomas Jefferson in the 1770s and 1780s.

• Amicus Landmark Legal Foundation states that the Federalist Papers and ratification debates likewise show that the Constitution was intended to create a unitary executive with full removal power. But amicus Landmark also argues that it was the Decision of 1789 that resolved these debates in the president’s favor.

• Senator Schmitt, Christian Employers Alliance, and Landmark Legal Foundation contend that the Framers understood the presidential removal power as necessary to guarantee democratic accountability. They argue that the president’s broad authority to remove executive officers ensured that officers would remain answerable to the public through their representative, the president. Going further, amicus Pacific Legal Foundation argues that at-will removals were part of the original constitutional design and crucial to the separation of powers, as they were intended to serve as an executive check on Congress.

○ Arguments of Amici Supporting the Commissioner:

• In contrast, a number of amici supporting the Commissioner argue that the Decision of 1789 was not decisive with regard to the issue presented here. They further assert that Founding-era history demonstrates an understanding that limitations could be placed on the president’s removal of officials.

• Professor Shugerman contends that the Decision of 1789 did not decide the constitutionality of statutory removal protections. Surveying the Congressional debates, he finds that “[t]he supporters of a presidential removal power did not have the votes . . . for their interpretation, and they needed to retreat to strategic ambiguity in order to enact even . . . indirect and indecisive language.” at pg. 11. He asserts that removal is at most an implied power, and that the Framers explicitly rejected the adoption of the earlier English prerogative of removal. Id. at pg. 23-25. Finally, Professor Shugerman references several removal protections enacted by the First Congress — including the Revolutionary War Debt Commission, Justices of the Peace (see Marbury v. Madison), and the Sinking Fund Commission, as well as other removal protections contemplated by the First Congress — as additional evidence as an originalist matter, that the executive removal power was never understood as absolute. Id. at pg. 15-21. Rather than assessing removal protections as an Article II limit on Congress’s authority to structure executive offices, Professor Shugerman suggests that such protections should be judged as lawful legislative exercises of the Necessary and Proper Clause of Article I.

•  Administrative Agencies

○ Arguments of Amici Supporting the Administration:

• Amici Washington Legal Foundation and Americans for Prosperity Foundation argue that the removal protections found lawful by Humphrey’s Executor have enabled an unaccountable administrative State that is inconsistent with Article II and the separation of powers.

• Likewise, amicus America’s Future (et al) contends that there has been a transfer of political power from the people to a technocratic administrative State through decisions like Humphrey’s Executor, and that this has diminished the power of the people and the president, ultimately leading to a nonresponsive government that entails a loss of liberty.

• Along the same lines, amicus Pacific Legal Foundation contends that promises of administrative efficiency have not been fulfilled, and have come at the price of liberty, while amicus Cato Institute  argues that the expansion of the power of unelected government officials implicates the preservation of liberty.

○ Arguments of Amici Supporting the Commissioner:

• In contrast, the amicus brief filed on behalf of former Senior Republican officials by some of the authors of this article notes that administrative agencies already had a long history in the United States well before Humphrey’s Executor. Far from such agencies being unaccountable, their design makes them answerable both to the president, who can remove members for cause, and to Congress, which can change their make-up — as indeed Congress has in the past, including by giving more power to the president over the FTC and by temporarily eliminating removal protections from the Federal Reserve in the 1930s. Amici assert that the current president’s efforts to assert more executive authority over removal thus undermines congressional authority and unbalances the separation of powers. As amici put it, “overturning Humphrey’s Executor would violate the separation of powers by vastly expanding executive power at Congress’s and the Court’s expense.” Amici further note that the president exercises even more power over the FTC’s activities today than he did at the time of Humphrey’s Executor, so additionally granting him an unlimited power to remove FTC commissioners would further disrupt the separation of powers.

• Amici Former Chairs of the Federal Trade Commission and 207 Members of Congress also emphasize the substantial control that the president maintains over commissions like the FTC. They further highlight, as do amici Open Markets Institute and 19 States, that the FTC was intentionally designed as a bipartisan, multimember body to ensure stability, independence, and deliberative decision-making.

• In particular, amicus American Antitrust Institute argues, Congress’s creation of the FTC reflected the congressional view that the prior antitrust enforcement regime under the Sherman Act was insufficient.

• Amicus 40 National, State, and Local Consumer, Privacy, and Open Markets Groups argue that agencies that lack this independence — such as the FAA, DOT, FSIS (Food Safety and Inspection Service), and USDA — “have too often succumbed to industry domination, leading to regulatory failures that cost lives and erode public trust.”

• Amici Administrative and Constitutional Law Professors argue that the proper legal framework for evaluating removal protections is the balancing test from Nixon v. GSA and Morrison v. Olson, which holds a statute valid unless it substantially impairs the president’s ability to carry out constitutionally assigned functions. Under these tests, the president and the unitary executive theory do not overcome the “balanced, stable, and nonpartisan approach” by Congress in providing for-cause removal restrictions.

• Ramifications of Overturning Humphrey’s Executor

○ Amici Supporting the Administration:

• Amicus Christian Employer’s Alliance argues that there are no reliance interests to justify the preservation of Humphrey’s Executor, which amicus argues is unworkable because it relies on conceptually incoherent categories of “quasi-judicial” and “quasi-legislative” functions.

• Amicus Americans for Prosperity Foundation likewise argues that invalidating removal protections here would not require the destruction of other agencies or injure third parties’ reliance on agency work. In particular, amicus argues that overturning Humphrey’s Executor would not affect the Federal Reserve, which is “sui generis.”

• Amicus Chamber of Commerce urges the Court to explicitly distinguish the Federal Reserve from the FTC, suggesting that the Sinking Fund Commission provides a basis for such a distinction and that the FTC wields executive authority, while the Federal Reserve does not.

○ Amici Supporting the Commissioner or Neither Party:

• In contrast, amici legal historians Rosenblum and Donahue argue that history has shown the workability of Humphrey’s Executor. And amicus Public Knowledge states that overruling that precedent would destabilize institutions on which both government and regulated industries have relied for generations.

• In particular, amici Professors Bednar and Phillips argue that statutory quorum requirements demonstrate congressional reliance on Humphrey’s Executor, as do amendments to the Vacancies Act that exempt independent commissions from its coverage. If the executive were able to remove independent commissioners at will, it could use the quorum and vacancy rules to disable the commissions entirely, contrary to the Take Care Clause and the will of Congress. Indeed, amici assert President Trump already has done exactly this with respect to, inter alia, the NLRB, MSPB, EEOC, USIP (U.S. Institute of Peace), TVA (Tennessee Valley Authority), U.S. African Development Foundation, and the Inter-American Foundation.

• Amicus National Whistleblower Center contends that, in light of the consequences of unchecked executive removal power on whistleblowers and the public right to transparency and accountability, overturning Humphrey’s Executor would contravene Madison’s vision of an executive removal power that reflects the “will of the community” as guided by “the benignant ray of truth.”

• The Federal Reserve: Moreover, some amici argue, the removal provisions governing the Federal Reserve and the FTC must rise or fall together. Amici former Senior Republican Officials, in a brief filed by some of the authors of this piece, note the intertwined history of the FTC and the Federal Reserve, which were created as complementary agencies to fulfill President Wilson’s “New Freedom” agenda — the Federal Reserve to regulate banks, and the FTC to regulate commerce. It therefore makes little sense to treat the constitutionality of their removal positions differently, according to these amici. They further emphasize that Humphrey’s Executor itself noted — as the then-Solicitor General implicitly acknowledged — that if the government’s position prevailed, removal protections would be unconstitutional for all offices except Article III judges.

• Nor, argues amicus Professor Shugerman, can the First and Second Banks be cited as a basis for an exception for the Federal Reserve, since they were private entities that did not exercise executive regulatory power. Thus, Professor Shugerman asserts, either the Federal Reserve removal protections are unconstitutional, or both the Federal Reserve and the FTC have a constitutional right to certain removal protections.

• Alternative Outcomes: Amicus Professor Morley, in a brief filed in support of neither party, urges that, if Humphrey’s Executor is overturned, the Court should avoid doing so in a manner that dramatically expands presidential power. He argues that Congress likely would not have delegated the same level of authority to non-independent agencies. Instead, the Court should consider ruling prospectively, enjoining certain executive functions of agencies rather than stripping their removal protections. The Court could also stay its ruling to allow Congress time to restructure agencies accordingly.

• Likewise, amici Professors of Administrative Law argue that limiting the executive powers granted to the FTC is preferable to eliminating removal its protections, given the importance of FTC independence. Removal protections for Article I tribunals, including independent commissions and other Article I courts are vital safeguards of those tribunals’ integrity.

• Severability: In a variant of this argument, amici Former EEOC Members contend for a narrow severing of only those applications of the FTC Act that are unconstitutional. Amici also suggest –– as an alternative –– invalidating removal protections as applied to only three commissioners (presumptively, the three who are members of the President’s own political party), rather than the entire Commission. Such a practice of mixed protected and unprotected officials reflects Founding-era practices, they claim.

• Other Agencies: Reflecting the wide range of concerns about the effects of overturning Humphrey’s Executor, numerous other amici argue that if that case is overruled, the Court should make clear that other agencies are not implicated. Amici Campaign Legal Center and Trevor Potter ask the Court not to rule in a way that would have implication for the FEC and EAC (U.S. Election Assistance Commission). Amici Administrative and Constitutional Law Professors argue that the Court should make explicit that any ruling concerning FTC removal protections does not extend to other multimember agencies or Article I courts (e.g. MSPB, FCC, NTSB (National Transportation Safety Board), NRC, FEC, and financial regulators), on the ground that the distinct functions and histories of these agencies support their for-cause removal regimes. Amicus Gwynn Wilcox argues that the Court should not extend its holding to the National Labor Relations Board or other agencies that have unique features affecting the constitutionality of removal protections for their heads. Bipartisan Former Commissioners of the Federal Energy Regulatory Commission (FERC) ask the Court to consider the special historical status of ratemaking commissions like the FERC. Amici American Federation of Labor and others seek to distinguish the NLRB, FLRA, and NMB (National Mediation Board) as federal labor agencies that wield no enforcement powers. Amicus Cathy Harris, in a brief in support of neither party, argues that the Merit Systems Protection Board and other legislative courts are purely adjudicatory bodies, and thus should survive, even if Humphrey’s Executor is overruled. Amici Todd Harper and Tanya Otsuka argue that the Court should engage in a functional and historical analysis specific to each particular agency.

• Judicial Power and Remedies

○ Amici Supporting the Administration:

• Amicus Christian Employer’s Alliance argues that the Commissioner had no cognizable equitable causes of action, and accordingly that the lower courts erred by reinstating her, since money damages would have been adequate. Amicus argues the courts cannot force specific performance of employment contracts or compel the President to confer his executive power on the Commissioner.

• Amicus America’s Future (et al) argues that the lower courts did not have the authority to reinstate Commissioner Slaughter either directly or indirectly.

• Amicus Professor Morley, in a brief filed in support of neither party, argues that if Humphrey’s Executor is not overruled, the Court should allow wrongfully removed officials to seek reinstatement through a writ of mandamus or quo warranto, rather than an injunction.

• Amicus Public Citizen cites longstanding authority allowing courts to bar subordinate executive officials from implementing an unlawful removal, without the courts directing the president himself.

• Amicus Maud Maron, in a brief filed in support of neither party, argues that Federal courts possess the authority to prevent removal from state and federal public offices under Section 1983 and the All Writs Act when the act of removal violates a federal right.

In sum, this case will turn on how far the Court considers itself bound by “long-settled and established” congressional and executive practice, which this Court has previously stated “‘is a consideration of great weight in a proper interpretation of constitutional provisions’ regulating the relationship between Congress and the President.” Given the reliance of Humphrey’s Executor on Framing-era history, and more recent understandings of that history unearthed by originalist scholars, this case will also test the Court’s commitment to originalism. Finally, as amici former Republican officials note, the case will test the depth of the Court’s commitment to stare decisis and judicial minimalism; amici call the Administration’s position “a profoundly anti-Burkean and anti-Madisonian step: [to] radically restructure a system by eroding constitutional checks and balances and concentrating all power—including economic power—in the President’s hands. Accepting this invitation would overrule a long line of precedents, violate separation of powers, and deal an enormous blow to the stability and freedom of our Nation.”

The post A SCOTUS Bench Memo for Trump v. Slaughter, the FTC Removal Case: Stare Decisis, Historical Practice, and Original Intent appeared first on Just Security.

Soon after taking office, President Donald Trump invoked the 1977 International Emergency Economic Powers Act (IEEPA) to impose a range of country-specific and global tariffs. These actions triggered legal challenges before lower courts, which consistently held against the president, including at the appellate level. In Learning Resources, Inc. v. Trump, the Supreme Court will decide two crucial questions:

(1) By enacting IEEPA, did Congress authorize the president to impose tariffs?

(2) If so, is that delegation of authority lawful?

Yet even before answering these two questions, a third threshold issue must be answered:

(3) Has IEEPA been lawfully triggered at all here? Has Trump lawfully unlocked IEEPA’s emergency powers by satisfying the necessary congressional prerequisites to invoke it? Or, as some amici assert, did Trump not only fail to meet those prerequisites, but also make an invocation of IEEPA that is pretextual and hence illegal for that reason as well?

Merits briefs have been filed by the parties and 44 groups of amici curiae: 37 in support of the challengers, 6 in support of the government, and 1 in support of neither (see here). Ahead of the Court’s oral argument on Nov. 5, 2025, this “bench memorandum” provides a concise reader’s guide to amici’s main arguments.

The Tariff Case Briefing: A Reader’s Guide

This case consolidates three separate challenges to the Trump Administration’s tariffs brought by Learning Resources and hand2mind, private companies including V.O.S. Selections, and several states (collectively “the challengers”). The challengers argue that Trump’s so-called “global reciprocal tariffs” and country-specific opioid “trafficking tariffs” are illegal, because IEEPA does not authorize the president to impose tariffs and cannot constitutionally delegate such power. The challengers also argue that the tariffs are invalid because the president’s justifications to impose tariffs do not meet IEEPA’s statutory requirements. The U.S. government rejects each of these arguments.

The Challenge to Trump’s Tariffs  

The challengers urge the Supreme Court to reject the Trump Administration’s use of IEEPA to impose tariffs. They recall that the framers regarded the power to tax, which includes the power to impose tariffs, as the “most important of the authorities” held by the federal government. Accordingly, the Constitution vests that power exclusively in Congress. Although the president has significant foreign affairs powers, he has no independent constitutional authority to impose tariffs or taxes, so can impose tariffs only if Congress has specifically authorized him to do so.

• Text: The challengers assert that IEEPA makes no such specific authorization to impose tariffs. The text of the statute grants the president emergency powers to “regulate…importation or exportation” to deal with an “unusual and extraordinary threat,” emerging in whole or substantial part outside of the United States. The plain meaning of “regulate” in this context does not entail a tariffing power, according to the challengers. Because “regulate” applies to both importation and exportation, it cannot imply the power to tariff, since no branch of the federal government has the power to impose tariffs on exports. The judiciary requires Congress to speak clearly when delegating major authority to the Executive, and Congress has never delegated tariffing or taxing powers through these words.

• Legislative History: IEEPA’s legislative history also shows, the challengers argue, that Congress did not authorize the president to impose tariffs through that statute. When Congress was reforming its emergency legislation, including IEEPA, it adopted other statutes that explicitly delegated to the president limited authority to impose tariffs. They made no such provisions in IEEPA. In the 69 times that presidents have invoked IEEPA since its passage in 1977, none until Trump has attempted to use the statute to place tariffs on other nations.

• Nondelegation and Major Questions Doctrines: The challengers additionally argue that if the Court construed IEEPA’s authority to “regulate” as the power to tariff, such an interpretation would raise serious major questions and nondelegation concerns. The challengers contend that Congress has not clearly delegated the unprecedented and highly significant authority claimed by the government, raising issues under the major questions doctrine (which says that Congress must clearly authorize delegations of major economic and political significance). Additionally, the challengers submit, accepting the government’s interpretation would mean that Congress had granted the president virtually limitless authority to remake the national economy without any congressional limiting guidance or instruction — essentially usurping Congress’s full legislative power to tax, thereby raising significant nondelegation doctrine concerns.

• IEEPA Not Lawfully Triggered: Finally, the challengers address the third, threshold argument identified above: that even if IEEPA lawfully authorized the imposition of tariffs, Trump did not properly invoke it: i.e., he did not comply with the prerequisites of IEEPA that are legally required to access that statutory power. IEEPA mandates that to invoke emergency powers, the president must declare an emergency with respect to an “unusual and extraordinary” threat and can take emergency action only to “deal with” that specific threat. But here, the challengers argue, the U.S. trade deficit — the claimed emergency that the president invokes to impose the global reciprocal tariffs — is neither unusual nor extraordinary, but instead, a long-standing and persistent condition. Additionally, tariffs do not “deal with” opioid trafficking and thus fall beyond the statute’s scope.

The Government’s Response  

With respect to each claim, the government asserts the opposite:

• Text: IEEPA’s language, according to the government — specifically the power to “regulate…importation”— authorizes Trump’s tariffs. The government argues that “regulate” has a broad meaning and, when paired with “importation,” encompasses the authority to impose tariffs. The government concedes that the tariffs do not directly combat drug trafficking, but it contends that the tariffs do “deal with” the declared emergencies as intended by the broad language in the statute, because they provide the president “leverage” against other countries.

• Legislative History and Precedent: To support its claim, the government points to U.S. v. Yoshida Int’l, where the Court of Customs and Patent Appeals interpreted language permitting the president to “regulate importation” in IEEPA’s predecessor statute, the Trading With the Enemies Act (TWEA), to authorize tariffs imposed by then-President Nixon. Additionally, the government argues that the other delegated powers in IEEPA suggest a broad grant of authority, rather than one that excludes the power to tariff.

• Nondelegation and Major Questions Doctrines Inapplicable: The government dismisses any concerns under either the major questions doctrine or the nondelegation doctrine. As to the major questions doctrine, the government points to factors such as what it describes as the unambiguous nature of IEEPA’s language, as well as the fact that the statute delegates the authority at issue to the president directly in order to address emergencies (thus arguing that Congress intentionally used broad language to delegate broad powers). The government also asserts that IEEPA incorporates sufficiently clear policy articulations as well as limits to avoid nondelegation doctrine concerns. In any event, the government also claims that neither doctrine applies in the foreign affairs context, and that tariffs are a foreign affairs issue.

• Legislative Context: Responding to the challengers’ other arguments, the government asserts that other trade statutes that more explicitly delegate the power to impose tariffs should not cabin the Court’s interpretation of IEEPA. The Court should treat IEEPA as a separate source of authority that allows tariffs in different contexts.

• Against Judicial Review of IEEPA Triggering: The government argues against judicial review, especially of the question whether the emergencies constitute unusual and extraordinary threats. It alleges that allowing courts to review presidential determinations of emergencies amounts to second-guessing the president’s foreign policy judgments. The government asserts that IEEPA does not require the president to justify his determinations and only mandates reporting to Congress, and thus only the legislative, and not the judicial, branch can check presidential emergency powers.

Arguments of Amici Supporting the Government or Not Taking a Position

Seven groups of amici — consisting of two U.S. Representatives and several advocacy organizations and legal scholars and professors — filed briefs in support of the administration or neither party. Because these amici’s arguments largely track the government’s arguments urging the Supreme Court to uphold the levied tariffs, it is primarily new arguments that are described here.

• Political Question Doctrine: Amici Representatives Darrell Issa and Brian Mast contend that both the Constitution and historical precedent appoint the president as the “sole organ” of the federal government in foreign affairs. Amici American Center for Law and Justice argues that presidential emergency determinations constitute nonjusticiable political questions: “quintessentially executive judgment[s]” committed entirely to the political branches. Determining whether an unusual and extraordinary threat exists to trigger IEEPA requires, they assert, assessments of complex geopolitical considerations, classified intelligence, and predictive decision-making that courts lack the expertise and institutional capacity competently to review. These amici further argue that any judicial review of presidential emergency declarations would violate separation of powers by second-guessing the president’s foreign affairs decisions. The statutory design of IEEPA and the National Emergencies Act (NEA) support this notion, S. Reps. Issa and Mast assert, because those statutes establish processes for presidential or congressional termination of, not judicial oversight of, national emergencies.

• IEEPA Authorizes Presidential Tariffs: Amici supporting the government offer varied claims to support the interpretation that IEEPA’s delegation to the president of the power to “regulate…importation” includes the power to impose tariffs. Amici Jill Homan and the nonprofit America’s Future argue that the Court should construe the terms to authorize tariffs because tariffs have been used throughout U.S. history to regulate commerce. Representatives Issa and Mast, like Professor Aditya Bamzai (who supports neither party), point to previous instances where the Court interpreted “regulate” in other statutes to include a power to tax. Additionally, amici suggest that because the other delegated powers in IEEPA are broad, “regulate…importation” should be read broadly to include the power to impose tariffs. The American Center for Law and Justice suggests that congressional acquiescence confirms this broad reading (Authors’ Note: since these amicus briefs were filed, the Senate has voted to end the emergencies the president declared to impose global tariffs and country-specific tariffs on Canada).

• Legislative History and Context: Supporting neither party, Professor Aditya Bamzai points to IEEPA’s legislative history and its relationship to TWEA, because in the Yoshida case, a lower court interpreted TWEA to delegate to the president the power to impose tariffs. Thus, notwithstanding Congress’s intent by adopting IEEPA to cabin TWEA’s emergency powers, Bamzai claims, because Congress copied TWEA’s previously interpreted language into IEEPA and did not formally deny the power to tariff, Congress implicitly delegated the power to tariff. Amicus Bamzai expressly acknowledges, however, that the power to tariff implicates the power to tax. In the alternative, America First Policy Institute argues that even if the Court finds IEEPA does not authorize Trump’s tariffs, it could nevertheless uphold them under Section 338 of the Trade Act of 1930 — even though the president has not invoked this provision. Amici  Jill Homan and Representatives Issa and Mast add that because tariffs are not necessarily taxes, construing IEEPA to authorize tariffs does not necessarily intrude upon Congress’s exclusive constitutional authority to impose taxes (see further related arguments from amicus Chad Squitieri here).

• Inapplicability of Nondelegation and Major Questions Doctrine:The American Center for Law and Justice contends that the concerns raised by the nondelegation and major questions doctrines should not apply here because foreign affairs and national security are at issue. Alternatively, Representatives Issa and Mast contend the statute would satisfy existing nondelegation requirements since IEEPA incorporates specific preconditions for presidential action.

Arguments of Amici Supporting the Challengers

The overwhelming majority of the amicus briefs filed — thirty-seven groups of amici ranging from bipartisan coalitions of Members of Congress to economists and national security officials to former federal judges to farmers and businesses — support the challengers in  urging the Supreme Court to invalidate Trump’s IEEPA tariffs.

IEEPA Does Not Authorize Tariffs: In support of the challengers, most amici assert that, based on its statutory text and background, IEEPA does not authorize the president to impose tariffs. These arguments are based on:

• Text: The statute lacks terms Congress typically uses to permit tariffs (“duties,” “imposts,” “tariffs”), and its authorization to “regulate” “importation” does not include revenue-raising authority. The Washington Legal Foundation says it “strains credulity” to read “regulate … importation” as conferring the power to tariff when the two words are far apart in the statute and surrounded by other non-tariff delegated powers.

• Original Meaning of the Constitution: Amici George Allen et al. (including Koh, one of the co-authors of this blogpost) reject the government’s contention that foreign affairs and national security considerations create an “escape hatch” or carveout that permits otherwise impermissible delegations. Any such non-rigorous nondelegation standard for national security or foreign affairs should not, in any event, apply here because, from the founding, Article I vests Congress with the exclusive power to levy taxes and duties and the power to tariff. Under the original meaning of the Constitution, the president, by contrast, had no tariff or commerce authority.

• Legislative Intent: Amici Vikram Amar and Mickey Edwards contend that Congress intended IEEPA to constrain, not expand, presidential emergency economic powers. Congress enacted IEEPA and the NEA, which gives the president the power to declare national emergencies subject to specific oversight requirements—to rein in, not expand, presidential powers. After decades of presidential overreach during continuous states of emergency, the NEA restored congressional control over the irresponsible declaration of national emergencies, while IEEPA restricted the President’s use of emergency powers to situations that meet a narrow statutory threshold. Thus, as amici former national security officials argue, the NEA and IEEPA exude distrust of, not deference to, presidential invocations of emergencies.

• Past Legislative Practice: Where Congress has intended to authorize tariffs, it has enacted detailed trade statutes with express language imposing carefully calibrated limits on presidential tariff authority. The absence of such clear statutory language permitting tariffs in IEEPA means it cannot be read to override decades of trade legislation. In addition, amici California, Constitutional Accountability Center and Professors of Foreign Relations Law dismiss the assertion based on the Yoshida case that IEEPA’s incorporation of language from a predecessor statute, TWEA, indicates that IEEPA permits tariffs, since the Yoshida court had ruled that TWEA conferred tariff authority. The CATO Institute notes that for nearly 50 years until now, no president ever interpreted IEEPA to authorize tariffs—a “telling signal” that Congress never intended to delegate that power to the Executive

• Disruption of the Legislative Landscape: Amici George Allen et al. contend that the president’s IEEPA tariffs ignore and override Congress’s statutory schemes for trade and tariffs. The political branches have established a U.S. trade and tariff policy centered on principles of equal treatment and most-favored-nation status through statutes and treaties. By attempting to use IEEPA, they argue, the president seeks to sidestep Congress’s carefully created statutory limits and procedures, undermining longstanding U.S. trade policy.

• Major Questions and Nondelegation Doctrine: Amicus NYU Law Institute for Policy Integrity asserts that there is no foreign affairs or national security exception that negates the requirement that Congress must clearly authorize such a significant delegated power. Interpreting IEEPA to allow tariffs would transfer Congress’s taxing power to the Executive when Congress made no express authorization. Professors of Administrative Law argue that even if IEEPA expressly authorized the president to impose tariffs, such an open-ended delegation of legislative authority to the executive branch would violate the separation of powers. Consumer Watchdog adds that IEEPA provides no guiding “intelligible principle” defining the duration, rate, amount, or scope of any such tariffs, nor does it establish substantive guardrails to constrain the president’s discretion. Construing IEEPA broadly would thus grant the president unbounded tariff power that would swallow Congress’s exclusive authority.

Arguments of Pro-Challenger Amici regarding “Pretextual Emergencies”

The Claimed “Emergencies” Are Reviewable

Rejecting the government’s and a few pro-government amici’s arguments that various justiciability doctrines bar the Court from inquiring into the validity of emergencies, several amici—including a group of 31 former federal judges—assert that the Court can and must review whether the president has met the statutory requirements imposed by the NEA and IEEPA to invoke emergency powers.

The President Did Not Meet IEEPA’s Statutory Requirements

Several amici argue that the president did not meet IEEPA’s statutory requirements.

• No Unusual or Extraordinary Threat: First, amici argue that the president’s declared emergencies are not unusual or extraordinary threats. For instance, economists and former government officials assert that trade deficits do not qualify as unusual and extraordinary threats under IEEPA because they are long-standing and persistent, and in any event do not pose a “threat” within the meaning of IEEPA. In fact, Congress gave the president the power to address trade deficits through a separate, non-emergency statute: the Trade Act of 1974. Second, former national security officials contend that, as a similarly long-standing problem, fentanyl trafficking is not an unusual and extraordinary threat under IEEPA. The government’s own data show the tariffed countries were already addressing these issues, and Congress spoke to the narcotics problem through other statutes. Third, even if the threats were legitimate, amici Scott Lincicome et al. assert that tariffs “deal with” neither the trade deficit nor fentanyl trafficking, as IEEPA requires.

The President Has a Constitutional Duty to Make Bona Fide, Non-Pretextual Emergency Declarations

Two briefs — one filed on behalf of Peter Sage and one filed on behalf of former senior U.S. government officials John Bellinger et al. by Susman Godfrey and the Peter Gruber Rule of Law Clinic at Yale Law School (including some of the authors of this Reader’s Guide) — argue that both the trade deficit and fentanyl trafficking emergencies are pretextual, and hence illegal.

• The President Has an Affirmative, Constitutional Duty to Faithfully Execute the Laws: This responsibility requires the president “to be honest and engage in reasonable inquiry in finding facts that serve as predicates for exercises of power.” When a statute requires executive fact-finding to access its authorities, the president must execute fact-finding faithfully, not pretextually. As Justice Cardozo warned, in “default of such fulfilment, there is in truth no delegation, and hence no official action.” Accordingly, the president cannot use pretextual bases to exercise executive authority.

• No Presumption of Regularity: While the Courts generally presume that the Executive acts with procedural regularity and for bona fide, non-pretextual reasons, this presumption is not iron-clad. Where there is “clear evidence” that officials have not properly discharged their duties, such as by acting pretextually, courts may inquire into the Executive’s stated rationale.

• The President’s Invocations of IEEPA Are Pretextual: When adopting the NEA and IEEPA, Congress intended the statutes to impose “carefully constructed legal safeguards” that would ensure the president exercises emergency economic powers “only when emergencies actually exist.” Accordingly, to wield IEEPA’s emergency economic powers, the president must declare a national emergency under the NEA with respect to a genuine threat that is unusual and extraordinary. In this case, however, amici argue, the president’s invocation of IEEPA “cannot be adequately explained in terms of” the president’s declared threats: trade deficits and fentanyl trafficking. Rather, amici contend the president’s stated rationales are pretextual for the following reasons:

• Trade Deficit Tariffs: Objective facts and the Administration’s own actions, amici assert, suggest the president imposed “reciprocal” tariffs for a purpose other than responding to the alleged trade deficit “emergency.” First, the tariffs were not “reciprocal.” In fact, the president’s actions under IEEPA generally set tariffs at rates much higher than those imposed on U.S. goods. Second, the Executive provided shifting justifications for the “reciprocal” tariffs, including raising revenue. Third, the president almost immediately suspended, except as to China, imposition of these tariffs following a negative stock market reaction and emphasized the necessity of “flexibility,” which belies any argument that the trade deficit is truly an “emergency” requiring immediate action. Finally, after an additional extension, the president stated that he subjected some trading partners to tariffs even if they proposed terms that addressed trade imbalances but still “failed to align sufficiently with the United States on economic and national-security matters.”

• Trafficking Tariffs: The trafficking tariffs are similarly pretextual, amici argue. The Administration’s own assessments contradict the suggestion that the opioid threat is increasing, and that the three countries targeted—Canada, China, and Mexico—are not taking steps to address this issue. Earlier this year, the Drug Enforcement Administration reported that it has found numerous indicators that “the Government of China is controlling more fentanyl precursors to comply with recent updates to the United Nations counternarcotics treaty”—so much so that Mexican cartels are experiencing difficulties in sourcing fentanyl precursors from China. Likewise, U.S. Customs and Border Protection statistics show that 80 percent of all individuals arrested bringing fentanyl into the United States across the southwest border are not Canadian, Chinese, or Mexican nationals, but rather U.S. citizens. The claim that Canada is a major source of fentanyl is particularly disingenuous, amici note: the U.S. government’s own statistics show only 0.2 percent of the fentanyl arriving at the U.S. border came from Canada in 2024.

• True Motivation is Trade Policy: Moreover, amici assert that the public record demonstrates that other priorities—especially trade policy—motivated the president’s fentanyl tariffs. In describing why these countries’ supposed “failure to act” regarding fentanyl had become a national emergency under IEEPA, the president cited not the unusual threat of fentanyl, but his own announced “America First Trade Policy.” Just weeks after imposing these tariffs, the president declared, “Tariffs are about making America rich again.” He also used the tariffs to remove congressionally created de minimis exemptions for Chinese goods, a longstanding trade priority for the Administration. The president similarly emphasized that the main reason for the tariffs is not Canada or Mexico’s alleged role in the fentanyl trade but rather trade deficits and barriers, as well as the countries’ overall relationships with the United States.

• Separation of Powers: Amici argue that accepting the president’s invocation of IEEPA based on trade deficit and opioid threats that are usual and ordinary, or that are pretextual, would dangerously disrupt the constitutional balance between the legislative and executive branches by removing meaningful congressional restraints on delegated powers.

• Government by Emergency Will Breed More Emergencies: Finally, amici recall Justice Robert Jackson’s warning in Youngstown that accepting pretextual emergencies would provide a ready tool to usurp the constitutional balance of powers: “We may also suspect that [the Framers] suspected that emergency powers would tend to kindle emergencies.” Or as Justice Neil Gorsuch recently warned in Arizona v. Mayorkas, “one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting . . . rule by indefinite emergency edict[,] [which] risks leaving all of us with a shell of a democracy.”

The post A SCOTUS Bench Memo for the Trump Tariff Case: Separation of Powers, Delegation, Emergencies, and Pretext appeared first on Just Security.

But as much as the Trump administration might like to bury the FCPA, doing so is not easy. When the statute was enacted in 1977, the United States stood virtually alone in criminalizing foreign bribery. Today, nearly five decades later, outlawing foreign corrupt payments has become a universal obligation set out in binding multilateral treaties—and, in some U.S. jurisdictions, also a matter of state law. What began as a lonely American experiment has evolved into a web of transnational legal obligations that cannot be easily unbound. Earlier administrations’ efforts as “transnational norm entrepreneurs” to create a “race to the top” in building global anti-corruption norms triggered what one commentator has called “transnational legal process.” Through this intertwined domestic and international legal process, new norms are created that prove to be “sticky” and resistant to reversal once uploaded onto international law platforms.

The enduring transnational nature of the fight against foreign corruption has real-world consequences for U.S. companies that might now consider bribing foreign officials: if they do so, they may subject themselves to investigation and prosecution by foreign authorities, by state prosecutors, by a future Department of Justice—or even by this administration, should a company later fall out of favor.

The Trump Administration Has Sought to Put the FCPA to Rest – At Least for U.S. Companies.

President Trump has long expressed his disdain for the FCPA, which for nearly half a century has criminalized bribery of foreign officials. In a 2012 CNBC interview, Mr. Trump said that “every other country goes into these places, and they do what they have to do. It’s a horrible law and it should be changed . . . It’s ridiculous.” In 2017, during his first term, President Trump reportedly made a similar statement, asserting: “[i]t’s just so unfair that American companies aren’t allowed to pay bribes to get business overseas. We’re going to change that.” In 2020, Larry Kudlow, then-Director of the National Economic Council, confirmed that the Trump administration was “looking at” making changes to the FCPA.

Ultimately, the first Trump administration did not ask Congress to amend the FCPA—and neither has the second. In an increasingly familiar pattern, instead of seeking amendment or repeal of the FCPA, the administration has sought, as it has done with respect to TikTok and other recent controversies, to implement its policies by declining to enforce standing law. In the case of the FCPA, the administration has taken three executive actions to advance President Trump’s stated goal of permitting foreign corrupt payments by U.S. companies.

First, immediately upon taking office, Attorney General Pam Bondi issued a memorandum instructing the DOJ’s FCPA Unit to “shift focus away” from its traditional anti-corruption work —ostensibly so that the Unit could instead concentrate on investigations that involve bribery by cartels and transnational criminal organizations. But this explanation is plainly pretextual, as there are numerous other federal criminal laws that effectively address narcotics-related corruption, whereas “the FCPA’s design – considering its jurisdictional reach and entity-focus – may limit its effectiveness as a tool against organized crime.” In addition to this “shift” in focus, “retirements and reassignments of long-standing career enforcement personnel [have] substantially reduc[ed] the staff and prosecutors assigned to investigate and prosecute FCPA cases.” In other words, as part of a wide-ranging effort to hollow out DOJ’s anti-corruption enforcement capacity, the administration has systematically reduced both prosecutorial ranks and institutional expertise.

Second, shortly after the Attorney General’s memorandum, President Trump issued Executive Order 14209, which directed the Attorney General to: (a) “cease” new FCPA investigations and enforcement actions for at least 180 days (except where the Attorney General made an individual exception); (b) “review” all existing FCPA investigations and prosecutions and take “appropriate action with respect to such matters”; and (c) “issue updated guidelines or policies” with respect to the FCPA to “prioritize American interests.” This presidential directive effectively paused FCPA enforcement across the board, halting new cases while placing existing investigations under threat of termination.

Third, pursuant to that order, DOJ dismissed nearly half of its pending FCPA investigations. Then, on June 9, 2025 DOJ issued new FCPA Guidelines designed to ensure that the FCPA would not be “enforced in a manner that ‘harms American economic competitiveness and, therefore, national security.’” As commentators at major U.S. law firms have noted, the new guidelines “emphasize a prosecutorial focus on protecting US interests,” and “suggest that the DOJ may show less interest in prosecuting bribery schemes involving US companies.” Instead, the new guidelines demonstrate the DOJ’s “increased focus on non-U.S. companies whose alleged corrupt conduct harms American competitiveness in international markets” — even though of the nine FCPA corporate resolutions reached in 2024, more than half already involved foreign-based companies.

The Trump administration has thus effectively rewritten a law that has been on the books for nearly fifty years. It has sought to unilaterally convert the Foreign Corrupt Practices Act into a Foreigners Corrupt Practices Act, without explaining why that narrowing is consistent with Congress’ clear legislative intent.

But while the Trump Administration has taken steps to hobble FCPA investigations of U.S. companies by the DOJ — and to entirely prevent any such prosecutions the administration disfavors — the President cannot lawfully authorize such corrupt payments. Congress, not the President, has the constitutional authority “[t]o make all Laws which shall be necessary and proper,” and to define the national interest such laws should serve. It is then the President’s constitutional duty to “take Care that the Laws be faithfully executed.” Thus, the FCPA remains the law of the land, notwithstanding any executive orders to the contrary. Moreover, as discussed below, the principles enshrined in the FCPA are no longer simply the law of the United States — through persistent American norm-promotion, they have become universal legal principles that can be enforced wherever jurisdiction exists.

Foreign Corrupt Payments Are Now Universally Forbidden–and May Trigger Foreign Prosecutions

President Trump’s position that the FCPA is “unfair” to U.S. businesses rests on several fallacies.

First, it is incorrect to claim that U.S. businesses do not benefit from the FCPA. In fact, the opposite is true: anticorruption measures are essential to the prosperity of both U.S. and global businesses. The suspension of such measures does grave damage to international commerce. As the winners of last year’s Nobel Prize in Economics illustrated “[s]ocieties with a poor rule of law and institutions that exploit the population do not generate growth or change for the better.” In addition, companies themselves, like Ulysses tied to the mast to avoid siren calls, can benefit in being able to tell would-be bribe solicitors that U.S. law forbids payment. In this regard, it is worth noting an exchange that reportedly took place in the first Trump administration: then-Secretary of State Tillerson is said to have pushed back on President Trump’s complaints about the FCPA by stating that when he was CEO of Exxon, he had refused to pay a $5 million bribe that had been demanded by foreign officials, and that Exxon nonetheless got the contract. As Tillerson explained, “America didn’t need to pay bribes—[the U.S.] could bring the world up to our own standards.”

Second, President Trump’s view that the FCPA is “unfair” to U.S. businesses crumbles under even casual scrutiny. The Act extends equally to foreign companies listed on U.S. stock exchanges and to foreign firms and persons that use U.S. territory to facilitate corrupt payments. Indeed, of the top ten fines imposed under the FCPA, foreign companies have paid nine. The new DOJ Guidelines acknowledge this reality in a footnote, arguing that DOJ’s FCPA actions show that “[t]he most blatant bribery schemes have historically been committed by foreign companies.” But even if foreign actors commit the vast majority of a particular federal crime, federal prosecutors would never argue for a “race to the bottom,” freeing Americans to commit such crimes as well. Rather than drawing the obvious conclusion—that vigorous enforcement of the FCPA has been critical in deterring U.S. businesses from corruption—the DOJ reaches the perverse opposite conclusion: that U.S. companies should now somehow be made exempt from the same scrutiny applied to foreign companies. This twisted logic treats past compliance as grounds for future immunity.

Third, and perhaps most important, it is wrong to argue that corrupt payments are a well-accepted norm in international business, and that thus the FCPA creates an “uneven playing field” for U.S. businesses. While that may have been the case when the FCPA was first enacted in 1977, the United States is no longer alone in criminalizing foreign corrupt payment.

In fact, it has not been alone for more than two decades, following the 1997 entry into force of the OECD Anti-Bribery Convention. Largely because of sustained engagement by the United States and other public and nongovernmental actors, criminalization of foreign corrupt payments is now an international legal requirement. Most significantly, the U.N. Convention Against Corruption has 191 parties, including the United States. The Convention requires all member states to criminalize “offering or giving to a foreign public official . . . directly or indirectly, of an undue advantage . . . in order that the official act or refrain from acting in the exercise of his or her official duties, in order to obtain or retain business . . . .” Member states have broadly enacted domestic laws doing just that.

The international criminalization of bribery, and the “stickiness” of that norm, present risks for U.S. businesses considering bribe payments. While some might consider the Trump administration’s position a license to make foreign corrupt payments, the administration’s inaction alone cannot insulate U.S. businesses from foreign investigations and prosecutions. The risk of prosecution is not just hypothetical. From the 1997 entry into force of the OECD Anti-Bribery Convention until 2018, the 44 countries that were members of the OECD Working Group on Bribery secured more than 600 convictions of individuals and more than 200 convictions of entities for making foreign corrupt payments. In the same twenty-year period, there were more than 500 ongoing investigations across 28 Member States.

Moreover, while the United States may have abandoned its leadership position on fighting corruption, other countries are taking steps to fill the void. Prosecution authorities in the U.K., France, and Switzerland recently announced a new anti-corruption alliance and task force. As Nick Ephgrave, Director of the UK’s Serious Fraud Office, explained: “[t]he commitment we have made today reaffirms our individual and collective commitment to tackling the pernicious threat of international bribery and corruption, wherever it occurs.”

Finally, this effort to “weaponize” the FCPA is unlikely to go unnoticed or unanswered by foreign authorities. The Trump Administration’s new FCPA Guidance can and likely will be read as an effort to give U.S. companies an unfair and illegal competitive advantage, particularly with regard to strategic industries or assets, by directing the DOJ to focus its investigations and prosecutions on foreign companies rather than U.S. businesses. Ironically, this asymmetric interpretation of the Guidelines may make U.S. companies and individuals greater targets both for demands for bribes by foreign officials and for investigations by foreign prosecutors.

Foreign Corrupt Payments May Expose U.S. Companies to Prosecution by State Authorities

In “transnational legal process” parlance, the norm against foreign corrupt payments has not only been uploaded to international law, but also downloaded (i.e. internalized) into the laws of leading U.S. states. U.S. companies contemplating foreign corrupt payments thus risk not only foreign investigations and prosecutions, they must also be concerned about prosecutions by states or other non-federal units of the United States. For example, following President Trump’s Executive Order, California Attorney General Rob Bonta issued an advisory to:

“remind businesses operating in California that it is illegal to make payments to foreign-government officials to obtain or retain business— regardless of the Trump Administration’s order temporarily suspending federal enforcement of the Foreign Corrupt Practices Act (FCPA). Violations of the FCPA remain actionable under California’s Unfair Competition Law (UCL), and businesses are expected to follow the law.”

The New York Attorney General’s Office, the Manhattan District Attorney’s Office, and the New York Department of Financial Services are likewise all “well-positioned to fill gaps left by the DOJ and none has shied from taking action even against large, multinational corporations implicated in complex, far-reaching crimes.” Thus, as a number of commentators have noted, we may expect the states to fill a federal vacuum. State Attorneys General may take action in response to the lack of federal enforcement of the FCPA or other federal white collar crime statutes. Oregon Attorney General Rayburn already has done so in pursuing state charges against Coinbase following the SEC’s dismissal of its own case against that company; Attorney General Rayburn said that “states must fill the enforcement vacuum being left by federal regulators who are giving up under the new administration and abandoning these important cases.”

Foreign Corrupt Payments May Expose U.S. Companies to Future Prosecution by Federal Authorities That Return to FCPA Enforcement:

Under Trump’s nonenforcement actions, companies are being given a reprieve, but not immunity. Thus, companies should also bear in mind the possibility of future federal prosecutions. Notwithstanding the disdain of the current Trump administration, enforcement of the FCPA has been a bedrock principle of the Department of Justice across all prior administrations, including the first Trump administration. The statute of limitations for FCPA offenses is five years, which can be extended by three years if mutual legal assistance is required from another country to obtain foreign evidence. This means that corrupt acts taken now may become the subject of investigation by a future administration, before the statute of limitations has run out.

There is indeed good reason to believe that future administrations will return to faithful enforcement of the FCPA, since—until now—there has been bipartisan consensus that the FCPA is critical not only to U.S. business but to U.S. national security. The Biden administration deemed the fight against corruption to be a “core national security interest.” Likewise, the National Security Strategy of the first Trump administration stated that “[t]errorists and criminals thrive where governments are weak, corruption is rampant, and faith in government institutions is low” and accordingly established a priority to counter foreign corruption by “[u]sing our economic and diplomatic tools . . . to target corrupt foreign officials and work with countries to improve their ability to fight corruption so U.S. companies can compete fairly in transparent business climates.”

Similarly, the U.S. Congress, across party lines, has strongly supported the FCPA’s anticorruption provisions. In December 2023, Congress passed the Foreign Extortion Prevention Act (FEPA), making it unlawful for a foreign official to corruptly demand such payments. FEPA, a law hailed by leading Republican legislators, strengthened the FCPA’s existing statutory framework by criminalizing the “demand side” of foreign bribery. Representative Joe Wilson (R-SC) stated in December 2023 that “[t]he enactment of the Foreign Extortion Prevention Act is a landmark victory in the fight against corruption and protects American businesses from mafia-like extortion by corrupt foreign officials.” Similarly, Senator Tillis (R-NC) said that “I’m proud that the Foreign Extortion Prevention Act was included in the NDAA that President Biden recently signed into law. Our commonsense legislation will help promote free enterprise and protect American businesses from corrupt foreign officials who try to extort them.”

Thus, nonenforcement is not amendment. Neither party in Congress has expressed an interest in backing FCPA repeal or formal amendment. The second Trump administration may seek to stop enforcement of the FCPA against U.S. businesses. But, at best, this is likely to be a pause in what has been almost fifty years of vigorous enforcement of that law, across every administration since 1977.

Foreign Corrupt Payments Pose Selective Prosecution Risks Under the Current DOJ Guidelines

Finally, U.S. companies that engage in foreign corrupt payments may face prosecution by the Trump administration itself. The new DOJ FCPA Guidelines suggest that at least some investigations and prosecutions will continue pursuant to the new priorities set out therein. In this regard, it is significant that the Guidelines are vague in key respects. In particular, the Guidelines direct that prosecutors “shall not focus on alleged misconduct involving routine business practices,” but rather should focus on “substantial bribe payments” — without defining what DOJ considers “routine” or “substantial” in this context. Plainly, this leaves room for expansive prosecutorial discretion and glaring double standards.

There is, moreover, the danger of selective investigation and prosecution of disfavored targets—even of those who might think they could gain the protection of the Guidelines by arguing that the corrupt payments were made to advance American competitiveness and U.S. national security. As is common in DOJ guidelines, the FCPA guidance states that it “is not intended to, and does not . . . create, any [enforceable] right or benefit.” That standard warning takes on new meaning, moreover, when it is read in light of President Trump’s first term push for prosecution of those he considered his enemies, his repeated threats of investigations and prosecutions in the lead-up to his second term, and his recent issuance of executive orders calling for the investigation of Miles Taylor and Chris Krebs, former DHS officials who served in President Trump’s first term.

In this regard, it is instructive to look to the experience of other countries, where government leaders have permitted — or even encouraged — corruption, only to then pivot to “anti-corruption campaigns” designed to selectively punish those who have shown disloyalty or have otherwise displeased the leadership. Those U.S. companies who rely on President Trump’s nonenforcement today may find themselves targets of his prosecutorial wrath tomorrow. This approach is aptly summed up in the aphorism attributed to former Peruvian President Oscar Benavides:

For my friends everything – for my enemies the law.

***

In sum, the domestic decline of FCPA enforcement is mirrored by a robust international after-life. The Trump Administration may intend to subvert the FCPA as it applies to American companies or citizens by signaling that the Administration believes bribery to be an acceptable part of doing international business. However, no one should conclude that the administration can by executive order make lawful conduct that is prohibited under congressional legislation, as well as under multiple international treaties that the United States promoted and to which it remains a party. Nor should anyone rest easy believing that they are now free to engage in such corruption with impunity. The global anti-corruption regime that the United States pioneered over many decades is bigger than any one country or regime. However much the Trump Administration may favor the demise of the FCPA, its principles are “sticky” and thus will live on, both internationally and domestically.

The post Hard to Kill: The Transnational Survival of the Foreign Corrupt Practices Act appeared first on Just Security.

That is the saga of Harvard today – but also that of Dartmouth College more than 200 years ago, in 1816. (The latter is captured in an 1969 essay titled “Will to Resist,” by Dartmouth’s Librarian of the College, Richard W. Morin.)

One of the most consequential Supreme Court decisions arose from the courageous resolve of the Dartmouth College trustees to resist the unlawful encroachments of the New Hampshire governor and legislature. Harvard’s resistance to the similarly unlawful attacks of the Trump Administration – or, alternatively, its ultimate submission to those attacks – will have no less consequence not only for academic freedom, but freedom in this country as a whole.

The Dartmouth College case arose out of the actions of New Hampshire’s newly elected Jeffersonian Republican governor and legislature. Seizing on a struggle for control between the then-president of Dartmouth College and the College’s trustees – a struggle in which the president accused the trustees of, among other things, promoting religious intolerance – the legislature enacted, and the governor acted upon, legislation that annulled the College’s original charter and created a new “Dartmouth University.”  That legislation also usurped core functions of the College: in particular, it gave the governor the power to appoint a controlling number of new trustees, as well as a board of overseers with the power to override the actions of those trustees.

The existing trustees of the College initially sought to reach an accommodation with the governor and legislature. But when the settlement talks broke down, they undertook a legal challenge to this law that they brought to the U.S. Supreme Court, despite accompanying “penal” legislation that exposed them to fines for continuing to act under the College’s original charter. (Morin’s recounting of the internal deliberations of the trustees is a reminder of the indelible nature of such historic decisions.)

Chief Justice John Marshall held in the landmark decision Trustees of Dartmouth College v. Woodward that the action of the New Hampshire legislature violated Article 1 section 10 of the Constitution, which provides that no State shall “pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.”

Having concluded that the College’s original charter was a “contract” within the meaning of the Constitution, Marshall then found that New Hampshire’s actions clearly impaired that contract. In particular, the Chief Justice noted, “[t]he whole power of governing the college is transferred from trustees … to the executive of New-Hampshire.” As a result, Dartmouth College was unconstitutionally changed “into a machine entirely subservient to the will of government.”

This is the same fate that Harvard resists today.

To be sure, Harvard is under attack from the federal, not state government, but the broader lessons of the Dartmouth College case are surely applicable here: the government, whether federal or state, cannot constitutionally undertake a campaign that seeks to intimidate an independent university and seize control of its operations and assets.  While Dartmouth College’s federal claim sounded in contract law, the theme that repeats and resonates throughout the case is freedom from tyranny. Marshall’s choice of words is telling: what was at stake was not simply a dry issue of contracts, but the vital question whether an independent institution would be rendered “subservient” to the government, be made a “machine” – that is, a thing lacking a will of its own.

This theme was first raised by the College’s lawyers in the New Hampshire courts. The College’s counsel, Jeremiah Mason, quoted Thomas Jefferson’s assertion in Notes on the State of Virginia that “[a]n elective despotism was not the government we fought for.” Mason further argued that “[i]f our seminaries of learning … are to be new modelled, to answer the occasional purposes of prevailing political parties, all hopes of their future usefulness must be abandoned.”

Daniel Webster carried forward this theme in his argument on behalf of Dartmouth College to the Supreme Court. Webster pointed out that Chief Justice Marshall himself, in Fletcher v. Peck, had stated that the Article I, section 10’s collective prohibition of bills of attainder, ex post facto laws, and impairment of contracts constituted a “‘bill of rights, for the people of each state.’” Quoting Madison in the Federalist Papers, Webster noted that bills of attainder, ex post facto laws, and laws impairing the obligation of contracts each in their own way were “contrary to the first principles of the social compact.”  Thus, the actions of the New Hampshire legislature and executive would have been unlawful even if there were “no special restriction” in the constitutions of the United States or New Hampshire. In essence, New Hampshire had engaged in “[a]ttainder and confiscation” – that is, it usurped “the proper province of the judiciary” by taking away and transferring the rights of the College.

The equivalent constitutional rights exist at the federal level and similarly protect Harvard from the successive assaults undertaken by the Trump Administration. Our Constitution empowers no branch of the government to unilaterally target ideological or political opponents for retribution and retaliation. Such actions violate the Constitution’s separation of powers and prohibition against extrajudicial punishment, which is reinforced in the specific and absolute ban against bills of attainder  applicable to both political branches of the federal government. This is one of the fundamental rights that forms our social compact and that is enshrined in our Constitution. The Framers took pains not to “concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch.” SEC v. Jarkesy, 603 U.S. 109, 140 (2024). Yet the Executive’s retributive campaign of attainder against Harvard unconstitutionally seizes for the President the roles of legislator, prosecutor, judge, and jury.

As the Dartmouth College case recognized more than 200 years ago, the stakes here could not be higher, for universities and for our country as a whole. Students of history justly celebrate Webster’s famous peroration that Dartmouth was a small college, “and yet there are those that love it.”  But no less telling was his point that what was at stake was not simply Dartmouth College’s independence, but that of:

every college in our land …. It is more. It is, in some sense, the case of every man who has property of which he may be stripped, for the question is simply this: Shall our [government] be allowed to take that which is not their own, to turn it from its original use, and apply it to such ends or purposes as they, in their discretion, shall see fit? Sir, you may destroy this little institution:… but if you do, you must … extinguish, one after another all those great lights of science, which, for more than a century, have thrown their radiance over the land!

As Webster presciently told the Court:

Nor has Harvard College any surer title than Dartmouth College. It may, to-day, have more friends; but to-morrow it may have more enemies. Its legal rights are the same. So also of Yale College; and indeed of all the others.

In short, if the lights of our universities are not to be extinguished seriatim, Harvard must continue to show the same courage and will to resist that the trustees of Dartmouth exhibited two centuries before. And in turn the courts, as the Supreme Court did in the Dartmouth College case, must enforce our Constitution’s fundamental safeguards, which forbid a retributive government from seeking to control and destroy the independence of an academic institution.

The post Will to Resist: What <i>Dartmouth</i> Teaches Harvard About Protecting American Freedom appeared first on Just Security.