Previously, we had blogged on the Supreme Court decision that set forth the major questions doctrine, here. In reviewing that blog entry, there really wasn’t much meat on the bone so to speak in terms of just when the major question doctrine would be employed. That decision suggested that it could be employed any time desired since just about everything is a major question. That said, on February 20, 2026, the Supreme Court decided Learning Resources, Inc. v. Trump, here. From that majority opinion as well with the concurrences, we now have some idea as to how the major question doctrine might work going forward. As usual, the blog entry is divided into categories and they are: facts; sections of Chief Justice Roberts majority opinion joined by Justice Sotomayor, Justice Kagan, Justice Gorsuch, Justice Barrett, and Justice Jackson; sections of Chief Justice Roberts majority opinion joined by Justice Gorsuch and Justice Barrett; Justice Kagan’s concurring opinion; Justice Gorsuch concurring opinion; Justice Barrett’s concurring opinion; Justice Jackson concurring opinion; and thoughts/takeaways. Since the blog entry is focused on what shape the major question doctrine might take going forward, the blog entry does not discuss Justice Kavanagh’s dissent (view that the statute allowed for the presidential powers), and it also does not discuss Justice Thomas’s dissent as well since his focus was also not on the major questions doctrine.

 

I

Facts

 

The facts are really simple. As we all know President Trump used the International Emergency Economic Powers Act to initiate a series of tariffs and to increase or reduce them at his will. Learning Resources Inc. challenged that authority as being unconstitutional.

 

II

Sections of Chief Justice Roberts Majority Opinion joined by Justice Sotomayor, Justice Kagan, Justice Gorsuch, Justice Barrett, and Justice Jackson

 

 

  1. Since imposing a set of tariffs, the President issued several increases, reduction, and other modifications.
  2. The first clause of Article I, §8 of the U.S. Constitution states Congress has the power to lay and collect taxes, duties, imposts and excises. It isn’t an accident that the power appears first because the power to tax is the most important of the authorities proposed to be conferred upon the union. It is also a power to destroy and a power necessary to the existence and prosperity of the nation.
  3. The power to impose tariffs very clearly is a branch of the taxing power as it is a tax levied on imported goods and services.
  4. The framers gave Congress alone access to the pockets of the people by requiring all bills for raising revenue to originate in the House of Representatives. As such, the framers did not vest any part of the taxing power in the executive branch. The whole power of taxation rests with Congress.
  5. Absent from the lengthy list of powers in the law that President Trump used for his authority is any mention of tariffs or duties even though Congress did name a bunch of other things that the President can do. Accordingly, it stands to reason that had Congress intended to convey the distinct and extraordinary power of imposing tariffs to the President, it would have done so expressly as it has done in other tariff
  6. The power to regulate is not a grant of such authority, as the power to regulate ordinarily means, “to fix, establish, or control; to adjust by rule, method, or establish mode; to direct by rule or restriction; is subject to governing principles or laws.” Such a definition captures much of what the government does on a day-to-day basis but to argue anything broader than that suggest that the other eight verbs are simply wasted ink.
  7. The plain meaning of the term “regulate,” places in stark relief what the term is not usually thought of as including, which is the power of taxation.
  8. The United States Code has all kinds of statutes granting the executive the authority to regulate someone or something, but it does not contain any statute where the power to regulate includes the power to tax.
  9. When Congress addresses both the power to regulate and the power to tax, it does so separately and expressly.
  10. Since the power to regulate commerce is entirely distinct from the right to levy taxes, that Congress did not grant both of those powers separately in this case is strong evidence that the power to regulate in the law President Trump exercised the authority over does not include the power of taxation.
  11. The neighboring words that regulate is associated within the statute at issue also suggests that Congress did not intend “to regulate,” to include the revenue raising power and past presidential action is consistent with that.
  12. None of the authority listed in the statute at issue in this case includes the distinct extraordinary power to raise revenue, and no President is ever found such power in this statute before. As such, that is strong evidence that the power does not exist.
  13. When Congress granted the power to impose tariffs, it does so clearly and with careful constraints.
  14. Everyone agrees that the President has no inherent peace time authority to impose tariffs.

 

 

 

III

 

Chief Justice Roberts Majority Opinion Joined By Justice Gorsuch And Justice Barrett

 

  1. The Supreme Court has long expressed reluctance to read into ambiguous statutory text extraordinarily delegations of Congress’s powers.
  2. Separation of powers principles and a practical understanding of legislative intent suggest that Congress would not delegate highly consequential power through ambiguous language.
  3. Congress would likely intend for itself the basic and consequential trade-offs inherent in the use of imposing taxes.
  4. When Congress has delegated tariff powers it has done so in explicit terms and subject to strict time limits.
  5. To say that the President would have the extraordinary power simply by issuing a presidential declaration of emergency and then only by having it overwritten by a veto proof majority in Congress, would represent a transformative expansion of the President’s authority over tariff policy. It would also replace long-standing executive legislative collaboration over trade policy with unchecked presidential policymaking.
  6. In the half-century of the law that President Trump exercise the authority over, no President has ever invoked the statute to impose any tariffs, let alone tariffs of the magnitude and scope at issue here. Instead, Presidents have regularly invoked this law for other purposes. They have also invoked other statutes but never the one at issue here, in order to impose tariffs.
  7. The economic and political significance of the authority the President has asserted provides another reason to hesitate before concluding that Congress meant to confer such authority on the President.
  8. The President’s assertion of broad statutory power over the national economy is extravagant by any measure. Even the government admitted and boasted that the economic and political consequences of the tariffs are astonishing.
  9. The stakes involved here are much higher than those of other major question cases that have previously arisen before the court.
  10. A reasonable interpreter would not expect Congress to find such a big-time policy call off to another branch.
  11. The emergency argument as a justification for the authority doesn’t work because emergency powers tend to kindle emergencies and afford a ready pretext for the usurpation of congressional power.
  12. Where Congress has reason to be worried about its power slipping through its fingers, the Court has every reason to expect Congress to use clear language to effectuate unbounded delegations, particularly in the case of Congress’s one great power.
  13. The government admits that the President and Congress do not enjoy any concurrent constitutional authority to impose tariffs during peacetime. The framers gave the power to Congress alone notwithstanding any obvious foreign affairs implications of tariffs.
  14. There is no major questions exception to the major question doctrine.
  15. A president must point to clear congressional authorization in order to justify his extraordinary assertion of the power to impose tariffs and he cannot do so.
  16. When a president asserts the extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope, he must identify clear congressional authorization to exercise it.
  17. The government points to no statute in which Congress uses the word “regulate,” to authorize taxation, and no President before this one has ever read into this law the ability to have such power.

 

IV

Justice Gorsuch Concurring Opinion

 

  1. As a preliminary matter, it is an interesting read. Much of the opinion is spent trying to convince the reader why Justice Gorsuch’s analysis of the situation is correct and literally all of the other Justices are just not analyzing the situation properly.
  2. Under the major question doctrine, the President must identify clear statutory authority for the extraordinary delegated power he claims.
  3. The statute did not clearly surrender to the President the authority he seeks to utilize.
  4. The authority the President granted to himself is broad and extensive.
  5. The statute at issue is also major legislation designed to address big problems in crises.
  6. When an executive branch official claims Congress has granted them an extraordinary power, as the President did in this case, they must identify clear statutory authority for it.
  7. The major question doctrine teaches that to sustain a claim that Congress has granted them an extraordinary power, executive officials must identify clear authority for that power.
  8. The major question doctrine is really nothing more than a derivation on the traditional clear statement rule. That is, early corporations often functioned much in the way today’s executive branch does, and when interpreting the scope of that authority, the common law has a clear statement rule that looked very much like the major question doctrine. Same can be said for what state and federal courts did when modern administrative agencies started claiming extraordinary delegated powers
  9. When it comes to legislative power, Congress is principal and executive officials are the agents.
  10. The major question doctrine is pro-Congress by allowing for maximum flexibility when drafting statutes but yet limiting resourceful members of the executive branch to act on their strong incentives to exploit any doubt and Congress’s past work to assume new power for themselves.
  11. The founders understood that men are not angels and we disregard that insight when it is allowed for someone to expand their power based on loose or uncertain authority. It is also delusional to think that power will accumulate safely and only in the hands of dispassionate people found in agencies.
  12. Once the Supreme Court reads a doubtful statute to grant the executive branch a given power, it becomes almost impossible for Congress to retrieve it. Further, any President interested in his own authority, and all presidents are, has a strong incentive to veto legislation aimed at returning power to Congress. For example, no president ould willingly give up the power to not have his emergency declarations reviewed or to have his ability to impose tariffs on nearly any goods he wishes, in any amount he wishes, based on emergencies he himself has declared.
  13. All major question cases can be easily explained by reference to a rule requiring the executive branch to identify clear statutory authority when it claims Congress has granted an extraordinary power.
  14. Some clues to look at when deciding whether a major question is involved include: is the president seeking to exercise an unheralded or newfound power based upon a statute long in existence; how has the executive branch interpreted the statute at issue in the past; if there is a mismatch between the action the executive officials seek to take and his expertise; is the President relying on oblique, elliptical, or cryptic language. As helpful as the clues can be in helping court spot when a claimed power is not (emphasis in opinion), supported by clear statutory authority, they do not represent an exhaustive checklist, nor does satisfying one of the clues guarantee a claim will succeed. Additional clues in this case include the way is used elsewhere in federal statutes, neighboring language in the statute at issue itself, and how Congress has delegated tariff authority in the past.
  15. The central question in any major question case remains whether the executive branch’s claim to an extraordinary power is supported by clear statutory authority.
  16. The major question doctrine does not contain a foreign affairs exception as that would swallow the entire doctrine.
  17. Justice Gorsuch opinion ends with the following statement that will certainly be much quoted from here on out:

 

“All I can offer them is that most 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. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.”

 

V

Justice Barrett’s Concurring Opinion

 

  1. Justice Barrett’s opinion specifically goes out of the way to take on Justice Gorsuch claims that she is not analyzing the major question doctrine properly and that he is the better textualist.
  2. The major question doctrine situates text in context. As such, it is perfectly permissible to use background legal conventions, common sense, and constitutional structure to ascertain a text’s most natural meaning
  3. Since Article I grants all legislative power to Congress, the reasonable interpreter would expect Congress to make the big time policy calls itself rather than pawn them off to another branch.
  4. When it comes to a power that Congress gives away, it is not necessary for Congress to always speak precisely to that major power when it does so. Less obvious clues can do the trick, but no such clues are present here.
  5. The major question doctrine does not impose a clarity tax on Congress.

 

VI

Justice Kagan Concurring Opinion

 

  1. The opinion also takes on Justice Gorsuch with respect to his view that Justice Kagan not analyzing the matter correctly.
  2. The statute is so clear as to where the authority lies and the scope of that authority, it is unnecessary to invoke the major question doctrine at all.
  3. The government not only fails to satisfy a strict test, they also failed to satisfy the normal one.
  4. Statutory construction makes clear that the President has the ability to regulate but not to impose taxes, in this case on imports.
  5. When Congress has given presidential authority to levy tariffs in the past they have used a combination of specific language and imposed tight restraints on the power given.
  6. No President in the past has ever understood this particular statute to authorize imposing tariffs.

 

VII

Justice Jackson’s Concurring Opinion

 

  1. It is perfectly sensible that when assessing a case involving the major question doctrine, legislative intent be factored in to any decision-making on the case.

 

VIII

Thoughts/Takeaways

 

  1. For those having read the actual opinion, the layout of this blog entry may be confusing as my layout doesn’t match the way the Court laid it out in terms of who joined what section of Chief Justice Roberts opinion. My layout tries to simplify the opinion’s format so that it is easy to keep track of what Justices are saying what in the majority opinion.
  2. The major questions doctrine involves extraordinary delegations of power.
  3. In many ways, the various opinions remind me of the debate over equal protection tiers. Chief Justice Roberts and Justice Gorsuch seem to suggest that when major questions are involved something akin to strict scrutiny must be satisfied before the delegation of power will be sustained. On the other hand, Justice Barrett seems to suggest something you can use intermediate scrutiny before the delegation of power will be sustained. The analogy is imperfect, but it is there nevertheless. That is, you could analogize the “clear precise,” language to strict scrutiny and the implicit language found in Justice Barrett’s concurring opinion to intermediate scrutiny.
  4. How a statute has been applied over the years matters a great deal in major question cases.
  5. The clues listed by Justice Gorsuch in his concurring opinion affords some guidance in how to go about and trying to figure out how a major question case might pan out. Those clues are not an exhaustive list nor does one clue predominate over the others.
  6. The very end of Justice Gorsuch opinion will be quoted and cited for a long time.
  7. Justice Kavanagh, Justice Thomas, and even Justice Kagan while disagreeing on the result all agree that the statute should drive interpretation in this case.
  8. This is not the first time that Justice Jackson had talked about legislative history being important. The Supreme Court until her arrival has clearly moved away from using legislative intent. My career has actually given me quite a bit of experience with the legislative intent concept, and so I find the various thoughts on how legislative intent might matter when deciding cases interesting to follow.
  9. When the major question doctrine first hit the scenes, I had concerns about how sparse the doctrine was with respect to what it might cover. It seemed that it could cover almost anything, including laws affecting those with disabilities. After reading this decision, I am much less concerned. It is clear that a majority of this court believes the major question doctrine only applies in cases of extraordinary delegation of powers. It will be interesting to see if the “intermediate scrutiny,” approach of Justice Barrett for the “strict scrutiny,” approach of Justice Roberts and Justice Gorsuch prevails in major question cases. Since the major questions doctrine is essentially a nuclear one, I can see the argument for any delegation of power in a major question situation must be authorized by clear precise language, but this debate is definitely worth following going forward.
  10. It will be interesting to see how this case affects other cases going forward. There are several cases pending before the Supreme Court reaching the issue of President Trump’s use of presidential powers. The language in the various opinions of this case strongly suggests, but you never know, that this will not be the last case where the Supreme Court limits the authority of the President.