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Just a year prior, the Republican-dominated Supreme Court exhibited a resolve to curb the reach of executive authority.
With Democrat Joe Biden occupying the Oval Office, Republican justices expressed considerable apprehension that the executive branch was asserting “exceptionally important authority beyond the reasonable scope of congressional authorization.” Aiming to restrain the executive, these justices formulated a legal principle, termed “major questions,” intended to bar the president or their staff from implementing novel policies of “significant ‘economic and political magnitude’” — at least absent explicit congressional endorsement beforehand.
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Now, these very same Republicans stand poised to demonstrate whether this major questions doctrine represents a genuine attempt to allocate authority among the U.S. government’s three branches, or if it merely served as a contrivance to impede a Democratic president from enacting their agenda.
On November 5, the Supreme Court is scheduled to conduct oral arguments in a pair of cases — Learning Resources v. Trump and Trump v. V.O.S. Selections — each contesting the fluctuating tariffs imposed by Trump on imports to the US.
In both instances, challengers contend that diverse elements within the International Emergency Economic Powers Act of 1977 (IEEPA), the legal foundation for Trump’s tariffs, do not authorize such tariffs. Several legal arguments, as validated by numerous federal judges, carry significant weight.
However, it’s the Republican justices’ major questions doctrine that should unequivocally establish the illegality of Trump’s tariffs. The center-right Tax Foundation indicates Trump’s tariffs “represent the biggest increase in US taxes as a portion of GDP (0.55 percent in 2025) since 1993.” They project these tariffs will “generate $2.9 trillion in revenue over the ensuing decade on a conventional basis and diminish US GDP by 0.7 percent,” excluding financial losses incurred as countries retaliate to US tariffs by enforcing analogous trade barriers on the United States.
Thus, the tariffs distinctly qualify as a matter of “substantial economic and political importance.”
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Trump’s tariffs seemingly create a divide between fiscally conservative Republicans of the traditional mold and the president’s devoted MAGA base.
Michael McConnell, formerly appointed to a federal appellate court by George W. Bush, is among the primary attorneys challenging the tariffs. During a Federalist Society forum on executive power during the past spring, numerous participants voiced criticism of the tariffs and questioned their lawfulness. Former Sen. John Danforth (R-MO), an early mentor of Justice Clarence Thomas, stands among many Republicans who co-signed briefs opposing the tariffs.
The major questions doctrine is the result of a decennial project by numerous Republican lawyers and judges to limit executive authority. Starting during the Obama administration, the Federalist Society’s annual lawyers conference served as a venue showcasing diverse proposals to restrict the president’s capacity to enact policy alterations absent fresh legislative action from Congress — even in scenarios where an existing statute appeared to permit the president’s action.
Although many Republican judges and advocates concurrently advocated other legal theories to broaden presidential authority — most notably the unitary executive theory, employed assertively by Trump to seize control of federal entities supposedly maintaining a degree of independence from the president. However, this endeavor to consolidate control over federal agencies within the White House transpired in concert with a more extensive push to curtail the executive’s power to dictate policy.
V.O.S. Selections and its companion case function as a loyalty test for the Republican justices. Should these justices uphold the legal perspectives voiced during the Biden administration, or if they continue to align with the Republican Party’s conventional stance on economic policy, they must nullify the tariffs.
Correspondingly, should they seek to affirm loyalty to their party’s present leader, Republican justices must craft an opinion irreconcilable with their actions under Biden.
The specific legal concerns presented before the Supreme Court
The IEEPA empowers the president to “regulate…transactions involving, any property in which any foreign country or a national thereof has any interest.” However, by law, the president can only exercise this authority to “address an unusual and extraordinary threat.”
The various plaintiffs challenging these tariffs assert multiple reasons why the statutory wording would not permit Trump to enact his tariffs. Firstly, they assert that the authority to “regulate” imports does not extend to the power to tax them, alluding to a renowned 1824 Supreme Court ruling asserting that “the power to regulate commerce” differs entirely from “the right to levy taxes and imposts.”
Secondly, the plaintiffs claim that Trump has failed to identify an “unusual and extraordinary threat” warranting his tariffs. Trump argues that the majority of his tariffs are required to address the US trade deficit: the circumstance where the United States procures more goods from foreign nations than it vends to them. However, the United States has sustained a trade deficit since the mid-1970s, and Trump’s executive directive, announcing many of his tariffs, acknowledges that these are “persistent” and “a feature of the global trading system.”
Hence, it becomes challenging to classify trade deficits as unusual or extraordinary.
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Furthermore, plaintiffs highlight the existence of a separate federal statute governing instances where the president can enact tariffs to address trade deficits. This statute exclusively sanctions tariffs up to 15 percent, stipulating their expiry after 150 days. This narrow grant of authority, they argue, supersedes any power to enforce tariffs targeting trade deficits otherwise available to the president under IEEPA.
For their part, Trump’s legal representatives offer plausible rebuttals to certain arguments. They emphasize, for instance, that when Congress passed IEEPA, the solitary federal appellate decision pertaining to whether “regulate” encompasses the authority to impose tariffs concluded that it does. At times, courts assume that Congress intends to retain the established legal interpretation of a term when using it.
However, any ambiguity concerning the interpretation of IEEPA should find resolution in the major questions doctrine, which advises courts to refrain from construing federal laws in ways that grant the executive powers of “significant ‘economic and political magnitude’” whenever possible.
The major questions doctrine remains relatively nascent and has been exclusively wielded against one president: Biden. Nevertheless, in 2014, Republican justices implemented an initial iteration in Utility Air Regulatory Group v. EPA regarding a speculative EPA regulation. That case presents a succinct, one-sentence summation of this legal principle: “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
Under Biden, the doctrine’s scope broadened. In Biden v. Nebraska (2023), Republican justices nullified a student loan forgiveness initiative unambiguously authorized by congressional legislation. The Heroes Act, central to Nebraska, granted the education secretary comprehensive authority to “waive or modify” student loan obligations during national emergencies, such as the Covid-19 pandemic, “as the Secretary deems necessary.”
In fact, the Heroes Act authorized the education secretary to act “notwithstanding any other provision of law, unless enacted with specific reference to” that Act. Consequently, Congress could hardly have been more explicit about their intent to vest final authority over student loans with the secretary — not the Supreme Court.
Regardless, the Republican justices decided that the Biden administration’s student loans plan — which they projected would amount to “between $469 billion and $519 billion” — was too ambitious. They concluded that the “economic and political significance” of such a plan “is staggering by any measure.”
Yet, if the standard is that a presidential administration cannot institute a policy encompassing hundreds of billions of dollars, then Trump’s tariffs demonstrably must fail. Trump’s legal team asserts that his new import taxes will “reduce federal deficits by $4 trillion in the coming years.” Respected sources, such as the Budget Lab at Yale, estimate that Trump’s import taxes will “raise about $2.5 trillion over 2026-35,” quintupling the monetary value at stake in Nebraska.
Trump’s legal representatives respond that the Supreme Court should devise novel exceptions to their newly established major questions doctrine, assuring its inapplicability to Trump. They argue, for instance, the doctrine should not pertain to policies enacted via presidential order, rather than by a Cabinet secretary or subordinate official. Citing Justice Brett Kavanaugh, they also claim “the major questions canon has not been applied by this Court in the national security or foreign policy contexts.”
These arguments prove challenging to refute, as the major questions doctrine lacks statutory or constitutional foundation. It exists merely as a construct of Republican justices. Hence, no legal provision exists to dictate the doctrine’s application in the national security context. Thomas notes in a recent concurring opinion that “judge-made doctrines can be difficult for courts to apply,” owing to their “lack [of] an underlying legal authority on which to ground their analysis.”
Such doctrines frequently culminate in what Justice Ketanji Brown Jackson has termed “Calvinball jurisprudence,” in which rules fluctuate according to personal preferences or extraneous factors.
Ultimately, if the Republican justices legitimately fashioned a new legal standard to undermine Biden, they possess equal legitimacy in arbitrarily circumscribing this standard, conveniently enabling a Republican president to act without constraint.
Were this to transpire, it would suggest a prioritization of partisanship above legal principles. A cornerstone of any rule-based system — tracing back to Aristotle — mandates uniform treatment of analogous cases. Presidential authority cannot fluctuate with shifts in White House party control. “`
Source: vox.com
