The Tariff Case and the Major Questions Doctrine

After Learning Resources, the major questions doctrine appears more tenuous.

In Learning Resources, Inc. v. Trump, the U.S. Supreme Court held, by a 6-3 vote, that the enormous tariff program imposed by President Donald J. Trump was unlawful. This was one of the most consequential decisions of the Court’s latest term. Over the months in which the tariffs had been in effect, the government collected more than $200 billion in tariffs from importers.

The case grew out of executive orders that President Trump had imposed under the International Emergency Economic Powers Act (IEEPA). That statute authorizes the President to “regulate … importation” in emergency situations. President Trump claimed that drug trafficking and trade deficits constituted the requisite emergencies. In practice, he used the program as a tool for pressuring other nations to achieve his foreign policy objectives.

Affected small businesses and certain states brought suit to challenge the tariffs. Two lower courts held that the President had acted beyond his authority under IEEPA. The Supreme Court agreed but was split into three camps. Chief Justice John G. Roberts, Jr., wrote the opinion for the Court. His opinion relied in part on the major questions doctrine (MQD), but only Justices Neil Gorsuch and Amy Coney Barrett joined the MQD sections of his opinion. Justice Elena Kagan, writing for herself and Justices Sonia Sotomayor and Ketanji Brown Jackson, joined only the portions of Roberts’s opinion that did not rely on the MQD. Meanwhile, Justices Brett Kavanaugh, Samuel A. Alito, and Clarence Thomas dissented and would have upheld the tariffs.

The dissenters argued that the tariffs fell squarely within the Act’s authorization for the President to “regulate … importation” and were consistent with the President’s broad authority in the foreign policy area. Chief Justice Roberts, however, concluded that the context of IEEPA indicated otherwise. He said that tariffs are in essence taxes, which are not usually described as a form of “regulation.” Moreover, when Congress “grants the power to impose tariffs, it does so clearly and with careful controls.” Thus, it was unlikely that the legislature would have granted the kind of power that President Trump claimed to have—the power “to unilaterally impose tariffs of unlimited amount, duration, and scope.” Indeed, no prior President had read the Act as authorizing presidentially prescribed tariffs.

On a practical and political level, the Learning Resources decision was important because it nullified a program that the President considered central to his foreign policy agenda. The Court has generally upheld President Trump’s actions, even with respect to bold initiatives, but this case showed that the Court’s cooperation had limits. The Court’s decision has resulted in an extensive refund program, with complications that are still being worked out. Meanwhile, the President has reimposed some tariffs, using statutes other than IEEPA, but those actions are also being challenged in court.

Learning Resources is also important from an administrative law standpoint. In particular, the Justices in the majority engaged in an interesting dialogue concerning the MQD. Under that doctrine, which the Court formally adopted in 2023 in West Virginia v. Environmental Protection Agency, a court has “reason to hesitate” before upholding a rule that would have vast economic and political consequences, at least if—or perhaps especially if—it would extend the agency’s reach in a novel or previously “unheralded” direction. In West Virginia, the Court characterized the doctrine as meaning that a major rule must rest on “clear congressional authorization,” which evidently meant stronger statutory support than a court would ordinarily require in order to uphold an agency rule. In the tariffs case, Chief Justice Roberts invoked the MQD, declaring that the IEEPA did not “clearly” authorize presidential tariffs.

However, Justice Kagan, who has consistently been critical of the MQD, maintained that she did not need to rely on the doctrine, because the tariff program failed to satisfy ordinary judicial review standards in the Administrative Procedure Act. Her reasons were essentially the same as those articulated in the Roberts opinion. Chief Justice Roberts did not directly disagree. Nothing in his opinion indicates that he would have reached a different conclusion on any IEEPA issue if there had been no MQD.

In a concurring opinion, however, Justice Gorsuch did challenge the Kagan opinion more frontally. He chided her and the other liberal justices for inconsistency. If they were willing to read substantive statutes broadly in past MQD cases, such as those involving pollution control and student loans, how could they justify a more restrictive approach in Learning Resources?

This was an odd criticism. It is self-evident that judges can and regularly do interpret one broad statute more expansively than another broad statute, if the two are construed in different contexts. That is especially true when the subject matter of the respective statutes is so different. Moreover, Justice Gorsuch did not suggest that he himself would have voted differently on any IEEPA issue if there had been no MQD. Since he did not seem to disagree with the substance of Justice Kagan’s views about the IEEPA, his charge of inconsistency came across as gratuitous.

Meanwhile, Justice Barrett seemed to be having second thoughts about having previously endorsed the MQD at all. In her concurring opinion in Biden v. Nebraska, she had appeared to endorse contradictory positions. She had expressed serious reservations about substantive canons, but also appeared to endorse an argumentative concept of “common sense” that would have validated all of the Court’s prior MQD holdings—all of which had been controversial when decided. Whether or not she had intended the latter message at the time, she disavowed it in Learning Resources. She now declared that the version of the MQD that she supports is simply an application of ordinary statutory interpretation methods. If so, her support for the doctrine appears to have become nominal at best.

In sum, although the MQD is unlikely to be overtly abandoned any time soon, Learning Resources suggests that it may prove less significant for judicial review than it has previously seemed to be.