The Supreme Court used the "major questions doctrine" to reject much of the Biden administration's agenda, including its efforts to address climate change, the COVID-19 pandemic and student debt. The court's commitment to the doctrine will be tested next week when it hears arguments about President Donald Trump's tariffs program.
The doctrine requires Congress to use plain and direct language to authorize sweeping economic actions by the executive branch. The 1977 law that Trump is relying on, the International Emergency Economic Powers Act, might seem to fail that test, as it does not feature the word "tariffs" or similar terms like "duties," "customs," "taxes" or "imposts."
Nor is there any question that the tariffs will have vast economic consequences, measured in the trillions of dollars. The sums involved are far larger than the roughly $500 billion at issue in President Joe Biden's student loan forgiveness program, which Chief Justice John Roberts, writing for the majority, called "staggering by any measure."
The major questions doctrine, a judicially created principle of statutory interpretation, follows the premise that Congress does not "hide elephants in mouse holes," as Justice Antonin Scalia put it in a 2001 opinion.
But the actual words "major questions doctrine" did not appear in a majority opinion until 2022, when Roberts curtailed the EPA's power to address climate change. Without "clear congressional authorization," he wrote, the agency could not act.
In dissent, Justice Elena Kagan accused the majority of inconsistency and opportunism. When ordinary legal principles fail to thwart disfavored programs, she wrote, "special canons like the 'major questions doctrine' magically appear."
There is some reason to think the doctrine may disappear in the tariffs case.
In a concurring opinion in June in an unrelated case, Justice Brett Kavanaugh proposed a distinction that could lay the groundwork for a decision in Trump's favor in the tariffs case.
"The major questions canon has not been applied by this court in the national security or foreign policy contexts," he wrote, adding: "The usual understanding is that Congress intends to give the president substantial authority and flexibility to protect America and the American people."
The opinion was particularly significant because Kavanaugh has helped shape the doctrine over the years. He used the phrase in a 2017 dissent when he was a judge on the U.S. Court of Appeals for the District of Columbia Circuit, prompting an exchange with Sen. Amy Klobuchar at his Supreme Court confirmation hearings the next year.
Klobuchar, D-Minn., asked him about the doctrine, calling it "something else that you came up with." He responded that the "major questions doctrine is rooted in Supreme Court precedent."
Still, in his 2017 dissent, Kavanaugh conceded that "determining whether a rule constitutes a major rule sometimes has a bit of a 'know it when you see it' quality." In a 7-4 decision in August, the U.S. Court of Appeals for the Federal Circuit relied on the major questions doctrine to rule against Trump's tariffs program.
"The executive's use of tariffs qualifies as a decision of vast economic and political significance, so the government must 'point to clear congressional authorization,' " the majority said in an unsigned opinion, adding that the administration had failed to do so.
In dissent, Judge Richard G. Taranto, who was appointed by President Barack Obama, adopted Kavanaugh's recent concurring opinion and said that the major questions doctrine did not apply to foreign affairs.
Taranto cited, as Kavanaugh had, a 2024 article published in The University of Pennsylvania Law Review called "Foreign Affairs, Nondelegation and the Major Questions Doctrine." It was written by two experts on executive power, Curtis A. Bradley of the University of Chicago and Jack Goldsmith of Harvard University.
In a blog post last month, Goldsmith said Taranto's dissent had the better argument. "The right answer," he wrote, "is that the major questions doctrine does not apply here."
But he added that the Supreme Court "will feel pressure to apply the doctrine since it will look to many very political to let the tariffs slide past the major questions doctrine after the court invoked the doctrine to deny aggressive regulatory initiatives by the Biden administration."
The doctrine requires Congress to use plain and direct language to authorize sweeping economic actions by the executive branch. The 1977 law that Trump is relying on, the International Emergency Economic Powers Act, might seem to fail that test, as it does not feature the word "tariffs" or similar terms like "duties," "customs," "taxes" or "imposts."
Nor is there any question that the tariffs will have vast economic consequences, measured in the trillions of dollars. The sums involved are far larger than the roughly $500 billion at issue in President Joe Biden's student loan forgiveness program, which Chief Justice John Roberts, writing for the majority, called "staggering by any measure."
The major questions doctrine, a judicially created principle of statutory interpretation, follows the premise that Congress does not "hide elephants in mouse holes," as Justice Antonin Scalia put it in a 2001 opinion.
But the actual words "major questions doctrine" did not appear in a majority opinion until 2022, when Roberts curtailed the EPA's power to address climate change. Without "clear congressional authorization," he wrote, the agency could not act.
In dissent, Justice Elena Kagan accused the majority of inconsistency and opportunism. When ordinary legal principles fail to thwart disfavored programs, she wrote, "special canons like the 'major questions doctrine' magically appear."
There is some reason to think the doctrine may disappear in the tariffs case.
In a concurring opinion in June in an unrelated case, Justice Brett Kavanaugh proposed a distinction that could lay the groundwork for a decision in Trump's favor in the tariffs case.
"The major questions canon has not been applied by this court in the national security or foreign policy contexts," he wrote, adding: "The usual understanding is that Congress intends to give the president substantial authority and flexibility to protect America and the American people."
The opinion was particularly significant because Kavanaugh has helped shape the doctrine over the years. He used the phrase in a 2017 dissent when he was a judge on the U.S. Court of Appeals for the District of Columbia Circuit, prompting an exchange with Sen. Amy Klobuchar at his Supreme Court confirmation hearings the next year.
Klobuchar, D-Minn., asked him about the doctrine, calling it "something else that you came up with." He responded that the "major questions doctrine is rooted in Supreme Court precedent."
Still, in his 2017 dissent, Kavanaugh conceded that "determining whether a rule constitutes a major rule sometimes has a bit of a 'know it when you see it' quality." In a 7-4 decision in August, the U.S. Court of Appeals for the Federal Circuit relied on the major questions doctrine to rule against Trump's tariffs program.
"The executive's use of tariffs qualifies as a decision of vast economic and political significance, so the government must 'point to clear congressional authorization,' " the majority said in an unsigned opinion, adding that the administration had failed to do so.
In dissent, Judge Richard G. Taranto, who was appointed by President Barack Obama, adopted Kavanaugh's recent concurring opinion and said that the major questions doctrine did not apply to foreign affairs.
Taranto cited, as Kavanaugh had, a 2024 article published in The University of Pennsylvania Law Review called "Foreign Affairs, Nondelegation and the Major Questions Doctrine." It was written by two experts on executive power, Curtis A. Bradley of the University of Chicago and Jack Goldsmith of Harvard University.
In a blog post last month, Goldsmith said Taranto's dissent had the better argument. "The right answer," he wrote, "is that the major questions doctrine does not apply here."
But he added that the Supreme Court "will feel pressure to apply the doctrine since it will look to many very political to let the tariffs slide past the major questions doctrine after the court invoked the doctrine to deny aggressive regulatory initiatives by the Biden administration."
