The Supreme Court’s recent decision in Learning Resources v. Trump demonstrates the Supreme Court’s continued interest in policing the separation of powers, a theme which has been consistently applied to executive actions across both sides of the political spectrum.
In 1977, Congress enacted the International Emergency Economic Powers Act, which gives the president of the United States the power to “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest” when the president identifies an “unusual and extraordinary threat” to American national security, foreign policy, or the economy, originating primarily “outside the United States.”
Under Article I, Section 8 of the Constitution, Congress has the “power to lay and collect taxes, duties, imposts and excises” and “regulate commerce with foreign nations.”
Two legal questions were presented to the Supreme Court: First, did the International Emergency Economic Powers Act give President Donald Trump the power to impose his system of tariffs; and, secondly, if IEEPA did allow the president to impose tariffs, was it constitutionally permissible for Congress to delegate some of its taxing power to the executive branch? The Supreme Court concluded on the first question of statutory interpretation that Congress did not authorize the president to impose tariffs when it enacted IEEPA. Therefore, the Supreme Court did not have to answer the second constitutional question.
In deciding that IEEPA did not authorize the president to impose tariffs, Chief Justice John Roberts, Justice Neil Gorsuch, and Justice Amy Coney Barrett applied the “major questions doctrine.”
Under the major questions doctrine, when the executive branch seeks to take an action of “vast political and economic significance,” it must be able to show that it has “clear congressional authorization for the power it claims.” As the Supreme Court explained in the important major questions doctrine case West Virginia v. EPA, “both separation of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text the delegation claimed to be lurking there.” Rather, “something more than a merely plausible textual basis for the agency action is necessary.”
When the Supreme Court has applied the major questions doctrine in recent years, those on the left criticized it as a judicial technique for striking down progressive policies, but the decision in Learning Resources v. Trump demonstrates the court’s concern with policing the limits of executive power regardless of who occupies the Oval Office.
In West Virginia v. EPA, the Supreme Court held that the Environmental Protection Agency exceeded its statutory authority in requiring power plants to switch from coal-based energy production to wind and solar. Applying the major questions doctrine a few years later in Biden v. Nebraska, the Supreme Court also held that a federal law authorizing the Secretary of Education to “waive or modify” student loan payments during a national emergency did not allow the Biden Administration to completely cancel more than $400 billion in student debt because a “decision of such magnitude and consequence on a matter of earnest and profound debate across the country must rest with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
In NFIB v. OSHA, the Supreme Court held that the Occupational Safety and Health Administration exceeded its statutory authority when it used a federal law allowing it to set “occupational safety standards” to instead impose a nationwide vaccine mandate. Similarly, in Alabama Association of Realtors v. HHS, the Centers for Disease Control tried to use a statute mainly pertaining to sanitation to impose a nationwide eviction moratorium after the height of the COVID-19 pandemic was over. The Supreme Court again held that the executive branch exceeded its statutory authority.
In Learning Resources v. Trump, the court applied the doctrine to the actions of a Republican president, explaining that the separation of powers concerns behind the major questions doctrine apply most strongly when “the purported delegation involves the core congressional power of the purse.”
But Learning Resources v. Trump was by no means an easy case. Trump and Justices Brett Kavanaugh, Samuel Alito and Clarence Thomas argued that if Congress gave the president the power to do things as broad as “direct and compel” and “prevent and prohibit,” the lesser power of imposing tariffs would also be included. But as Roberts noted, tariffs are “very clearly a branch of the taxing power,” which belongs to Congress, and is thus a different kind of power than that conferred in the IEEPA.
The different opinions issued by Roberts, Gorsuch and Barrett on one hand and Thomas, Alito and Gorsuch on the other, demonstrate that the Supreme Court’s originalist justices do not always agree on results of particular cases even though they share an underlying legal philosophy. It also demonstrates that they have no issue without following their legal theories where they lead, even if it imposes limits on Republican presidents.