Constitutional Duels in the Court’s Rejection of Trump’s Tariffs

The Supreme Court’s groundbreaking decision in Learning Resources, Inc. v. Trump had the immediate effect of removing tariffs under the International Emergency Economic Powers Act (IEEPA) as a means for President Trump to impose his will on the world. Now, new tariffing frameworks threaten to roil trade further as Trump turns to alternative legal tools in his bid to exert control over global affairs. The economic aftershocks will be felt for many months. But the time frame for understanding the jurisprudential implications of the Supreme Court’s fractured decision will likely be measured in years. This is a preliminary effort to unravel some of the deeper themes and fault lines that the Court will grapple with in the future.

Disagreements in Learning Resources That Will Set the Stage for Future Debate

The Supreme Court’s six-three decision served as an unmistakable reminder that, as Chief Justice John Marshall wrote in Marbury v. Madison, and as Chief Justice John Roberts and other justices have often restated, it is emphatically the province and the duty of the judiciary to say what the law is. The challenge in Learning Resources lies in discerning exactly what the justices intended to say. The Court split three ways over how the “major questions doctrine” applied to IEEPA. Under that doctrine of statutory interpretation, the government’s claim that Congress has delegated power to the executive branch to take actions of broad “economic and political significance” requires a heightened degree of statutory clarity. The justices who previously agreed on that doctrine divided here. That raises the question of what is the “major questions” debate really about? Do the justices disagree about deep matters of constitutional principle or only semantics over how to interpret particular laws? And, of equal practical importance in projecting the Court’s next steps, do the analytical differences really matter? Or are other forces driving their votes?

A preliminary take is that the debate goes to fundamental separation-of-powers questions about the respective roles of the political branches—and the Supreme Court’s own role in maintaining the balance. Despite surface agreement on many relevant considerations about how to interpret laws that delegate Congress’s power to the executive, the Court remains profoundly divided about how and when to vindicate Congress’s role in setting national policy. The impact of this division, however, may turn not on what the Court says, but on how or whether Congress reacts.

Congressional Supremacy

The debate about the major questions doctrine goes to the heart of how to protect Congress’s constitutional role. 

The Original Design of the Constitution

The framers designed the separation of powers as a means of checking arbitrary power. The Constitution divided sovereign authority among three branches—the legislative, executive, and judicial—on the premise that each would check the others and restrain excessive concentrations of authority. James Madison thought that Congress was the branch of government most in need of restraint. In Federalist No. 51, he argued that “[i]n republican government, the legislative authority necessarily predominates,” and therefore must be checked by dividing it into the bicameral House of Representatives and Senate, while “the weakness of the executive may require, on the other hand, that it should be fortified.”

Madison’s suspicion of legislative power drew on his experience with state governments after the American Revolution. He observed that in the states, “[t]he legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex,” while “the executive magistracy is carefully limited; both in the extent and the duration of its power.” Madison concluded that guardrails to prevent legislative expansions of power should have the highest priority in republican government, because “the executive power being restrained within a narrower compass, and being more simple in its nature … projects of usurpation … would immediately betray and defeat themselves.”

Whatever the merit of Madison’s analysis then, presidents have proved quite capable of usurping power, with presidential authority predominating in the constitutional balance today. And when the president’s party controls majorities in Congress, his political power amplifies the presidency’s structural advantages to take swift, decisive, and sweeping action. 

The Judicial Conundrum of How to Enforce Congress’s Role

Given the expanding scope of presidential authority, the Supreme Court has long grappled with the complicated task of enforcing Congress’s intended primary role in setting national policy. As the multiple opinions in the tariffs case illustrate, the Court is torn over how to accomplish that task. In the face of growing assertions of presidential power, the Court has found itself drawing constitutional boundaries between the branches and limiting raw assertions of presidential power to make domestic law. The major questions doctrine reflects a similar impulse in the interpretation of congressional acts. But the split over its source and legitimacy reveals the complexity of the Court’s task.

Justice Elena Kagan’s view, expressed in her 2023 dissent in Biden v. Nebraska, is that the major questions doctrine thwarts congressional will. From her perspective, Congress often and for good reason gives the executive branch flexibility to respond to evolving and unforeseeable circumstances. Justice Kagan has argued that when a statute’s text authorizes such action, and context confirms the breadth of power delegated, the major questions doctrine tilts the analysis away from the “normal” best reading, that is to say, the interpretation produced by ordinary tools of statutory interpretation—and thus gives the Court itself power to frustrate congressional will. The major questions doctrine does this by insisting on a greater degree of clarity than would otherwise be required to express the legislative will—effectively forcing Congress to say, “We really mean it.”

Justice Amy Coney Barrett is sensitive to that concern, expressing doubt that the Supreme Court has the authority to block the best reading of a statute by creating new policy-driven rules for how clear its text needs to be. In Learning Resources, she asks: “[I]f the Constitution permits Congress to give the Executive a particular power, who are we to get in the way? Does the Judiciary really protect the Constitution by impeding the constitutional action of another branch?” Her version of the major questions doctrine thus treats it as a branch of textualism, rather than a normative requirement of clarity to support delegations of extraordinary scope.

Justice Neil Gorsuch has no such reluctance. He views the normative constitutional value of channeling major policy decisions through Congress as both a virtue and a key underpinning of the major questions doctrine. He described his position as “pro Congress,” writing in a striking passage in Learning Resources:

[M]ost major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man.

No member of the Supreme Court wrote to disagree with this principle. Instead, the Court’s divide is over whether the major questions doctrine frustrates congressional action (by denying delegations that Congress intended to and did make) or enhances it (by protecting against delegations of powers that Congress either likely did not make—or perhaps should reserve to itself). That is a fundamental disagreement not over the ends but over the means of vindicating Congress in a world in which presidential administrations of both parties press the limits.

But Is the Debate Over Semantics or Substance?

As Justice Gorsuch pointed out, members of the Supreme Court across the various positions all seem to agree on some basic points: Context matters in the interpretation of statutes, as do the extraordinary nature of a claimed delegated power and the constitutional values underlying the asserted delegation. Gorsuch went so far as to suggest that Justice Kagan and the members joining her separate opinion, Justices Sonia Sotomayor and Ketanji Brown Jackson, “all but apply the major questions doctrine,” prompting Kagan to retort that “[g]iven how strong [Gorsuch’s] apparent desire for converts, I almost regret to inform him that I am not one.”

But despite the seeming agreement on the breadth of statutory factors, the tariffs case marks a rare alliance between the more liberal justices and three of the more conservative ones. In past disputes, including cases over vaccines, environmental regulation, and student loan forgiveness, the major questions adherents and detractors split. Factors unique to the tariff context may explain Justice Kagan’s willingness to strike down Trump’s claim under IEEPA while voting for other broad exercises of executive power that the major questions adherents on the Court voted to invalidate. It is far from clear that Kagan will retreat in future cases, involving more routine regulatory issues, from her generally favorable disposition to administrative agency action.

It is also uncertain whether the divides among the conservative justices will persist. In construing IEEPA, the disagreements mattered. Chief Justice Roberts, joined by Justices Gorsuch and Barrett, relied on the doctrine to find that IEEPA did not authorize tariffs. In contrast, Justice Brett Kavanaugh, joined by Justices Clarence Thomas and Samuel Alito, wrote a dissent to endorse the major questions doctrine, but argued that it was both satisfied in IEEPA and, alternatively, inapplicable to tariffs.

Kavanaugh’s dissent portrayed the president’s action under IEEPA as a tool primarily to manage foreign affairs rather than to impose a domestic tax—and therefore exempt from major questions analysis, as he had suggested in a separate opinion last year. Chief Justice Roberts did not dispute the president’s vast role in foreign affairs, but emphasized—as the government conceded at oral argument—that the president has no inherent tariffing authority in peacetime, regardless of how much tariffs serve foreign-relations goals.

The disagreement among the conservative justices reflects that tariffs are Janus faced. They look outward to affect other nations’ practices but inward to collect revenue from the domestic populace. Chief Justice Roberts, however, had the better of this argument, basing his analysis on Chief Justice Marshall’s statement in the seminal case Gibbons v. Ogden that “[t]he power to impose tariffs is ‘very clear[ly] … a branch of the taxing power.’” Roberts also explained that the framers were well aware that tariffs had “obvious foreign affairs implications” but still viewed them as taxes. And he emphasized that the Constitution not only gives taxing power to Congress alone, but gives it pride of place, listing it first in Congress’s enumerated authorities.

Delegating to the president the authority to tax is constitutionally permissible, but the Court appropriately hesitated before finding such a delegation in IEEPA’s oblique authority to “regulate … importation.” Giving the president a free hand to set tariffs—unlimited in scope, amount, and duration—not only deprives the people of broad-based input into revenue raising, but also provides incentives for the president to exploit that power to fund preferred programs without congressional approval. As with civil forfeiture, some might also be skeptical about executive officials’ vast assertions of power when they have a strong financial incentive to exercise it.

It remains to be seen whether, outside of tariffs, the major questions doctrine will attract a majority to support a foreign affairs exception. Chief Justice Roberts acknowledged that Congress may wish to delegate significant authority to the president in the “foreign affairs or national security contexts.” This leaves room for the major questions adherents to coalesce in other cases that arise from those contexts.

Issues Not Addressed in Learning Resources May Resurface

The headline-capturing rebuff of the Trump administration’s reading of IEEPA overshadows several issues that the Supreme Court did not tackle. Those issues, however, may resurface in future cases.

War Powers 

All of the justices proceeded in this case with an understanding that the tariffs at issue—ostensibly designed to address emergencies created by the fentanyl crisis and trade imbalances—were imposed during peacetime. As Chief Justice Roberts noted, “the United States … is not at war with every nation in the world.” But unlike in this case, where the majority and dissent both agreed that the president lacks an inherent power to impose tariffs, wartime would present a different issue. The president’s vast powers as commander in chief and the U.S.’s representative in foreign affairs give him inherent, if far from exclusive, authority in war. And as Justice Kavanaugh pointed out in Learning Resources, history may support an independent tariffing authority in that context.

Given the malleability of the concept of “wartime,” this could create an enormous loophole. And given the Trump administration’s willingness to take military action and declare that the nation is facing other types of conflicts in diverse and debatable (but potentially unreviewable) settings, the administration may be tempted to act unilaterally to impose wartime tariffs. The recent action in Iran and the administration’s reaction to Spain’s denial of the use of bases have already prompted threats to use trade policy as leverage.

Retrieval

One argument advanced by an amici brief in Learning Resources was that the Supreme Court should factor into its statutory analysis whether a ruling in favor of a delegation by Congress effectively entrenches that power permanently in the presidency. The difficulty of overcoming a presidential veto, the argument goes, would prove a formidable obstacle if Congress sought to claw back delegated power from the president. Perhaps that difficulty should influence the judicial assessment of a delegation’s scope.

Whether retrieval obstacles should factor into the Court’s interpretation of statutes remains uncertain. The Learning Resources majority did not explicitly embrace or reject that argument. Justice Gorsuch, for his part, was receptive to it. In contrast, Justice Kavanaugh pushed back in his dissent, noting that Congress has a wealth of powers to deploy besides direct efforts to reclaim tariffing authority, such as appropriations, the House’s sole authority to initiate revenue-raising measures, the Senate’s power of advice and consent over nominations, and political horse trading.

Resolving the debate over retrieval might start with asking whether and how Congress has retrieved delegations in the past. That is an empirical question, and the answer may shift over time. Whether concerns about the difficulty of retrieving legislative power can legitimately influence the Court’s interpretation of statutes remains unresolved.

Delegation

A tantalizing question in Learning Resources was whether the Supreme Court would tackle the constitutional issue that lies behind the major questions doctrine: When has Congress gone too far in handing off authority to the executive branch? The challengers raised a nondelegation argument against the use of IEEPA to impose tariffs without limits. During its past term, the Supreme Court had seemingly resolved the broader question about delegation principles, settling on the delegation-friendly “intelligible principle” standard. While most of the Court bypassed that issue here, Justice Kavanaugh’s dissent rejected any delegation problem (largely because of his view that tariffing under IEEPA implicates foreign affairs). Justice Gorsuch—the strongest holdout on the nondelegation doctrine—responded with skepticism about the unbounded claim of delegated tariffing power here. Justice Thomas’s solo dissent advocates restricting the type of legislation that can justify nondelegation challenges only to rules governing deprivations of life, liberty, or property.

Perhaps this debate over nondelegation doctrine is a closed chapter. But litigants can be expected to seize on these opinions as inspiration to revive it, particularly as a backstop to arguments over the major questions doctrine.

Emergencies

One glaring component of the Trump administration’s reliance on IEEPA was Trump’s finding that the nation faced emergencies in the flow of fentanyl to the United States and in the balance of trade with other nations. Trump’s claims of emergencies here followed many other presidential claims of emergencies as a springboard to action under emergency legislation. Can courts review such claims? Chief Justice Roberts laconically noted that the government’s argument that the president’s finding of an emergency was not judicially reviewable and then moved on.

But whether reviewable or not, judicial skepticism over claimed emergencies surfaced in Learning Resources. Roberts quoted Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer that “emergencies can ‘afford a ready pretext for usurpation of congressional power.’” Roberts translated that observation into a legal argument: There can be no “emergency exception” to the major questions doctrine. While the Court may find it difficult to second-guess even outlandish presidential claims of an emergency, at least some of the justices may still harbor skepticism. As in Learning Resources, the skepticism may find expression in legal doctrines such as the major questions doctrine—and thus provide ways to limit presidential action without requiring the justices to say overtly that the president’s claim of an emergency is a fiction 

Conclusion 

Learning Resources is an emphatic ruling in favor of congressional power over unilateral presidential action. It is a first step toward stemming the aggrandizement of presidential power and the subordination of Congress in this administration. It may not be the last.

But Chief Justice Roberts implicitly recognized that the Supreme Court can do only so much; Congress must step up if it wishes to preserve its power. Quoting again from Justice Jackson’s Youngstown concurrence, Roberts noted that the Supreme Court had reason to expect Congress to speak clearly “[w]here Congress has reason to be worried about its powers ‘slipping through its fingers.’” A clear statement principle can help arrest the slippage, but judicial tools cannot ultimately prevent it.

The full quote from the Youngstown concurrence makes that point directly. Jackson wrote in 1952 to explain his vote against President Truman’s unilateral seizure of the nation’s steel mills to keep a strike from hindering the production of steel needed for the Korean War. Youngstown placed such a seizure firmly in Congress’s domain once the legislature had spoken, not the president’s, and thus enforced separation-of-powers principles. Learning Resources may be viewed through the same lens. But Jackson had “no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems.” The Court, he recognized, “may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”

Learning Resources is a welcome sign that the Court can play its part in preserving the separation of powers. But while the Court may put up guardrails giving space for Congress to act, unless it asserts that power, the executive may again seize it.