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Tariffs

Supreme Court's Major Questions Doctrine Under Scrutiny as President Trump's Tariffs Program Faces Constitutional Challenge

Strategic Insights

— 2 min read

The US Supreme Court's recent use of the "major questions doctrine" to thwart several major programs of the Biden administration, including efforts to address climate change, the Covid-19 pandemic and student debt, has put the doctrine under intense scrutiny. The doctrine, which requires Congress to use plain and direct language to authorize sweeping economic actions by the executive branch, is set to be tested in the upcoming case of President Trump's tariffs program.

Chief Justice John G. Roberts Jr. has previously used the doctrine to limit the executive branch's power, but Justice Elena Kagan has accused the majority of inconsistency and opportunism. However, Justice Brett M. Kavanaugh has proposed a distinction that could lay the groundwork for a decision in Mr. Trump's favor in the tariffs case, arguing that the doctrine may not apply in national security or foreign policy contexts.

The case is significant, as President Trump's tariffs program has been ruled against by the US Court of Appeals for the Federal Circuit, which relied on the major questions doctrine. However, the Supreme Court's commitment to the doctrine will be tested in the upcoming case.

Key Takeaways:

  • The Supreme Court's "major questions doctrine" has been used to thwart several major programs of the Biden administration, including efforts to address climate change, the Covid-19 pandemic and student debt.
  • The doctrine requires Congress to use plain and direct language to authorize sweeping economic actions by the executive branch.
  • Justice Brett M. Kavanaugh has proposed a distinction that could lay the groundwork for a decision in President Trump's favor in the tariffs case, arguing that the doctrine may not apply in national security or foreign policy contexts.
  • The US Court of Appeals for the Federal Circuit has ruled against President Trump's tariffs program, relying on the major questions doctrine.
  • Chief Justice John G. Roberts Jr. has previously used the doctrine to limit the executive branch's power, but Justice Elena Kagan has accused the majority of inconsistency and opportunism.
  • The upcoming case is significant, as it will test the Supreme Court's commitment to the doctrine in a high-stakes constitutional challenge.

Statistics:

  • The sums involved in President Trump's tariffs program are far larger than the roughly $500 billion at issue in President Joseph R. Biden Jr.'s student loan forgiveness program.
  • The major questions doctrine, a judicially created principle of statutory interpretation, was first mentioned in a majority opinion by Chief Justice Roberts in 2022.
  • Justice Antonin Scalia used the phrase "hide elephants in mouse holes" in a 2001 opinion, but the actual words "major questions doctrine" did not appear in a majority opinion until 2022.

Sources:

  • "This article appeared in print on page A6."
  • The New York Times
  • "Foreign Affairs, Nondelegation and the Major Questions Doctrine," Curtis A. Bradley and Jack Goldsmith, The University of Pennsylvania Law Review, 2024
  • "The right answer," Jack Goldsmith, blog post, last month

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