The tariffs ruling is the right result from a terrible process
The conservative justices — even the ones who ruled against Trump — are making it up as they go.
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If you’re trying to make sense of the Supreme Court’s decision last Friday in Learning Resources v. Trump, well, good luck. It’s a fractured mess, and what you’re reading is much more a fight between nine very powerful people about the scope of their power than a legal opinion that can give meaningful guidance going forward.
Out of the 170 pages that are here, very few represent the actual holding of the Court, or what the “majority decision” is. That’s because while there were six justices who agreed that President Donald Trump does not have the authority under the International Emergency Economic Powers Act (IEEPA) to simply yell “emergency!” and impose any tariffs he wants, any time he wants, in any amount he wants, those six couldn’t agree on how to get there.
The three conservative justices in the majority, Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett, wanted to get there by saying that there are some things so important that only the Supreme Court can determine what Congress meant, big “major questions” that require ethereal divination from the folks in robes.
The three liberal justices, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, wanted to get there by saying that this isn’t some big special question, but rather a run-of-the-mill — albeit still very high stakes — job for the Court: a close reading of the actual statute. And of course, the three dissenters — Justices Brett Kavanaugh, Samuel Alito, and Clarence Thomas — see their job as making sure that nothing gets in the way of the executive branch. (That worldview applies only as long as a Republican is president, of course.)
A lot of this can feel somewhat beside the point, angels dancing on the heads of pins sort of stuff, lawyers arguing for nearly 200 pages over what a handful of words and laws mean in a way completely divorced from the real world. But at root, these three views are locked in an existential struggle about checks and balances and the separation of powers. And unfortunately for all of us, even though this particular case turned out correctly, it highlights that the six conservative justices have extremely radical anti-constitutional ideas about how American democracy works.
Big special questions for a big special court
The conservative justices in the majority wanted this case to be decided under the major questions doctrine, and that’s no real surprise. It’s a new fave of theirs, a “doctrine” they invented out of whole cloth a couple of years ago.
Essentially, it says that there are some issues that are just so gosh-darn big that Congress is required to include some sort of extra super-duper-special language when it delegates certain authority. If that magic language isn’t there, then the Court gets to decide that Congress didn’t really mean what it said.
As Madiba K. Dennie, author of The Originalism Trap, explained at Balls and Strikes, the major questions doctrine had previously been invoked only when the Court’s conservatives wanted to block progressive efforts. It therefore has only been trotted out previously in cases where a government agency was relying upon statutory language from Congress as authority to enact regulations.
Basically, the conservatives decided that when there are issues of “vast economic and political significance,” Congress must clearly empower the agency with authority to enact regulations in a direct, detailed manner within the statute itself. If that magic language isn’t there and there is instead a more general grant of authority — a far more usual occurrence — then the Supreme Court gets to throw out the regulations.
So, it has served as a handy way for the Court to throw out covid-era testing requirements issued by the Occupational Safety and Health Administration, Environmental Protection Agency regulations capping certain carbon emissions, and, of course, President Joe Biden’s student loan relief efforts.
Dennie highlights how disingenuous Roberts’s invocation of the doctrine is in the tariffs case. Here, Roberts wrote that the Supreme Court had “long expressed reluctance to read into ambiguous statutory text extraordinary delegations of Congress’s powers.” The authority for that “long expressed reluctance”? Three cases from 2022 and 2023.
Well, that is shortly after the Supreme Court got stuffed with enough conservatives that they could successfully impose the newly-invented major questions doctrine, so it isn’t as if Roberts was going to be able to cite to anything older. However, it is only with supreme (er, pun intended) arrogance, a certitude that there is no higher power to call you out on your lies, that Roberts can smugly burble about a “long expressed reluctance” that is literally the same age as a toddler.
Under this interpretation, Trump can’t use IEEPA to impose tariffs because Congress didn’t say the magic words in IEEPA that would have successfully delegated its normal taxation and tariff power to the president. Of course, since the major questions doctrine didn’t exist at all back in 1977 when IEEPA was passed, Congress would never have known it was required to include some sort of special language to delegate its tariff powers to the president. Since that’s not there, per Roberts, Gorsuch, and Barrett, then Trump loses.
This is, of course, the right result, but a terrible, unconstitutional way to get there.
The humble, normal work of the courts
It’s undisputed that the federal courts have the job of statutory interpretation — determining what an unclear law means or how a law applies by looking at the language of the statute itself. There are specific tools courts use for this, such as examining how a disputed term is used elsewhere in the statute or examining the legislative history, which is material created during the statute’s debate and passage, such as a committee report.
Courts have to do this because it isn’t actually possible to just go back to Congress every time there’s a fight about a law’s language or scope and ask them what they really meant to say. Congress isn’t a body that can just answer that off the cuff — as in, it would actually need to pass a law to clarify or overrule another one — and Congress is not a body that can move swiftly.
However, the nature of statutory interpretation is much narrower than the major questions doctrine. It’s about grappling with the language of the statute itself, word by word, to determine what Congress meant. It requires being as faithful as possible to the actual text of the statute. It’s a relatively humble endeavor, one where a court tries to honor what Congress said.
What Justice Kagan’s concurrence points out is that the use of the major questions doctrine here is entirely unnecessary because those normal, humble tools of statutory interpretation get the job done just fine. IEEPA, she notes, just doesn’t authorize the president to impose tariffs.
One of the big tells? It never mentions tariffs, but rather only that the president can “regulate” the “importation” of goods after finding there is a foreign threat and declaring an emergency. Kagan noted that a review of hundreds of other provisions in the US Code that use the term “regulate” like this does not turn up any situation where “regulate” could mean Congress giving away some part of its taxation power to the president. When Congress actually wants to delegate that sort of power, it uses different words, like “tariff” or “duty.” Indeed, says Kagan, elsewhere in the US Code, when Congress does want to give the president the power to impose tariffs, it says so by using “duty” or “surcharge” and strictly limits the president’s authority.
With that, even if the major questions doctrine was a real thing rather than a vehicle for the Supreme Court’s conservatives to make sure no pesky progressive laws or regulations ever take hold, it’s entirely unnecessary to invoke it here. If the normal course of statutory interpretation takes care of this, the only reason to invoke the major questions doctrine is to try to aggregate more power to the Supreme Court.
Kagan’s careful analysis also lays bare the opportunistic and hollow nature of the major questions doctrine. By its very nature, it doesn’t focus on what appears in a statute, but rather castigates Congress for what isn’t there. In doing so, it strips Congress of power in any case where the Supreme Court decides things are a big enough deal. Since it’s a brand new invention, Congress can’t possibly have adhered to it decades ago when it passed sweeping laws. Since it has no real boundaries, Congress can never know what the Supreme Court will next decide should get the major questions doctrine treatment.
What if we just let Trump do whatever he wants?
And then, of course, there are the dissenters. It’s not surprising that the Court’s strongest soldiers for Trump’s maximalist vision of executive power — Justices Brett Kavanaugh, Samuel Alito, and Clarence Thomas — would have handed Congress’s powers over to Trump wholesale. All three of them read the assignment, and they know their job is to ensure that Trump can do whatever Trump wants.
In fact, Justice Kavanaugh, in his 62-page dissent — come on, man — made sure to give Trump a roadmap for how he can keep doing tariffs singlehandedly, saying that “numerous other federal statutes authorize the President to impose tariffs and might justify most (if not all) of the tariffs at issue in this case — albeit perhaps with a few additional procedural steps that IEEPA.”
So helpful, Kav! If you can’t get enough judges for the majority, you might as well tell Trump how he can keep on keeping on regardless.
To get here, Kavanaugh — and Thomas and Alito — have to twist themselves in knots to say that no no no, now the major questions doctrine, which they used to love, is not applicable because it doesn’t apply to foreign affairs or national security cases. But, as Steve Vladeck points out, those three were more than happy to toss Biden’s student loan relief measures despite those being explicitly based on the national emergency declared in response to covid: “One must do more than just wave their hands to explain why the major questions doctrine applied to (and invalidated) that ‘national security’ measure, but not this one.”
Kavanaugh’s dissent also relies on the notion that since IEEPA can allow the president to shut off imports, it must surely allow the lesser remedy of tariffs. Much like the major questions doctrine nonsense from the conservatives in the majority, this departs from the text of what Congress says, instead hoping to wave some magic wand that will let Trump do whatever he wants. But there’s no logical reason at all to believe that a grant of authority to stop imports from coming into the country necessarily includes allowing them to come in, but slapping tariffs on them.
The former is based on the notion that there is some emergency that warrants the complete cessation of some imports — that the goods coming into the country must be stopped. The latter is based on the notion that there is some emergency that allows all those imports to keep coming in, as long as they cost more. There’s no reason the latter follows from the former, and it isn’t like Kavanaugh makes much effort to make that argument stick.
But Kavanaugh doesn’t need rigid legal reasoning here. His 62-page wallop is not for you or Congress or the companies that sued the administration or anyone else. It’s for Trump, so that Trump can see just how far Kavanaugh will go in order to ensure that his power swallows that of Congress and the courts.
That’s a shameful abdication of the Court’s role in checking and balancing the executive branch. And the major questions doctrine is equally shameful, expanding the Court’s authority over Congress in a way never contemplated before.
Only the liberal justices here understood how to carve a middle path that was faithful to Congress and the Constitution, because they are the only ones left on this Court who understand why they are there. They’re not there to get more power for the Supreme Court. They’re not there to give more power to Trump. They are there to do the hard work of balancing it all.
That’s it for today
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Outstanding piece: thorough, clear -- esp. last 3 para. Thank you.
When Democrats control the House and the Senate they may want to consider modifying statutes, and creating new statutes that follow the example of the Internal Revenue Code (IRC). For example, IRC §1502 authorizes the Treasury Secretary to prescribe regulations for the filing of consolidated corporate tax returns. All of the rules to do this are pretty much in the regulations, not in the couple of statutes governing these returns. Taxpayers can contest the specifics in a regulation, but they have an uphill battle in the courts.