In Learning Resources, Inc. v. Trump, decided Friday, the Supreme Court held that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs. Chief Justice Robert’s lead opinion (joined by Justices Gorsuch and Barrett) expressly invoked the major questions doctrine in finding that the statute did not clearly convey tariff authority and so should not be read to do so. (Three other Justices concurred without joining this part of the opinion, finding that even under an ordinary interpretive approach the statute did not convey tariff authority). The three dissenters (Justices Kavanaugh, Thomas and Alito) found that the major questions doctrine did not apply, or in the alternative that the statute was sufficiently clear.
The Justices debated at least two aspects of the major questions doctrine with significance far beyond this case. The most important is whether the doctrine applies in matters (such as tariffs) that implicate foreign affairs. Roberts’ opinion squarely said that it did:
The Government’s and the principal dissent’s proposed foreign affairs exception fares no better. … As a general matter, the President of course enjoys some “independent constitutional power[s]” over foreign affairs “even without congressional authorization.” FCC v. Consumers’ Research, 606 U. S. 656, 707 (2025) (KAVANAUGH, J., concurring). And Congress certainly may intend to “give the President substantial authority and flexibility” in many foreign affairs or national security contexts. Post, at 48 (opinion of KAVANAUGH, J.) (quoting Consumers’ Research, 606 U. S., at 706 (KAVANAUGH, J., concurring)). But “flip[ping]” the “presumption” under the major questions doctrine … makes little sense when it comes to tariffs. As the Government admits, the President and Congress do not “enjoy concurrent constitutional authority” to impose tariffs during peacetime. … The Framers gave that power to “Congress alone”—notwithstanding the obvious foreign affairs implications of tariffs. Merritt v. Welsh, 104 U. S. 694, 700 (1882). And whatever may be said of other powers that implicate foreign affairs, we would not expect Congress to relinquish its tariff power through vague language, or without careful limits.
This passage has at least two implications: (1) that other exclusive foreign affairs powers of Congress might similarly be covered by the major questions doctrine, and (2) the doctrine might not apply in areas where Congress and the President have shared powers.
In a wide ranging concurrence, Justice Gorsuch makes these points directly:
I share a limited point of agreement with the dissent. Like the nondelegation doctrine, the major questions doctrine protects Article I’s Vesting Clause and, for that reason, the doctrine does not apply where the President is exercising only his own inherent Article II powers. Like the nondelegation doctrine, too, the major questions doctrine may speak with less force where the President and Congress enjoy “overlap[ping] . . . authority.” See Gundy v. United States, 588 U. S. 128, 159 (2019) (GORSUCH, J., dissenting); see also C. Bradley & J. Goldsmith, Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1743, 1747 (2004) (Bradley & Goldsmith) (explaining the “supposed foreign affairs exception” to the nondelegation doctrine “is better understood as a qualification that concerns situations in which a statutory authorization relates to an independent presidential power”).
Doubtless, cases implicating overlapping powers can arise in the field of foreign affairs. The Constitution, for example, vests in Congress the power to raise and regulate armies, but it also vests in the President the commander-in-chief power. … Similarly, Congress enjoys the power to regulate foreign commerce, but the President has power to negotiate treaties and nominate ambassadors. … The President may even enjoy some “residual” powers pertaining to foreign affairs under Article II’s Vesting Clause endowing him with the “executive Power.” … Given all this, it is easy enough to imagine statutes and disputes under them that implicate both congressional and presidential powers where we might have reason to question whether the major questions doctrine applies with its usual force.
The problem for the dissent is that none of this is relevant here. Before us, the President concedes that he does not enjoy independent Article II authority to impose tariffs in peacetime. … Nor does the President claim “‘concurrent’” constitutional authority to issue his tariffs. … Instead, and to his credit, the President admits the power to authorize tariffs in peacetime is constitutionally vested in “Congress alone.” … Therefore, the President relies entirely on power derived from Congress, and that means the major questions doctrine applies in the normal way.
In the lead dissent, Justice Kavanaugh endorses the major questions doctrine but, as indicated, argues for a foreign affairs exception to both it and the nondelegation doctrine:
[T]he major questions doctrine does not apply in the foreign affairs context. In the foreign affairs realm, courts recognize that Congress often deliberately grants flexibility and discretion to the President to pursue America’s interests. In that context, courts therefore engage in “routine” textualist statutory interpretation—reading the text as written—and do not employ the major questions doctrine as a thumb on the scale against the President. …
Recall that the major questions doctrine is based on two overlapping foundations: “separation of powers principles and a practical understanding of legislative intent.” West Virginia, 597 U. S., at 723. With respect to separation of powers, the major questions doctrine serves to reinforce the nondelegation doctrine. But in the foreign affairs realm, the Court has recognized that Congress often broadly delegates authority to the Executive. From the Founding, numerous foreign affairs statutes “authorizing action by the President in respect of subjects affecting foreign relations” either “leave the exercise of the power to his unrestricted judgment, or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs.” United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 324 (1936); … The reason for those broad delegations is simple and obvious: If “success” for America’s foreign affairs “aims” is to be “achieved, congressional legislation . . . must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” Curtiss-Wright, 299 U. S., at 320. Stated otherwise, “Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than that it customarily wields in domestic areas.” Zemel v. Rusk, 381 U. S. 1, 17 (1965).
…
If the major questions doctrine is designed in part to protect nondelegation principles, but the nondelegation doctrine does not play a substantial role in foreign affairs cases (as the Court has held), then it follows that courts should not employ the major questions doctrine to put a thumb on the scale against the President when interpreting foreign affairs statutes. …
Relatedly, to the extent that the major questions doctrine is designed to reflect a “practical understanding of legislative intent,” West Virginia, 597 U. S., at 723, the doctrine appropriately plays no role in “national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas.” FCC v. Consumers’ Research, 606 U. S. 656, 706 (2025) (KAVANAUGH, J., concurring). In the foreign affairs realm, Congress “has good reason to—and intends to—authorize many executive branch actions related to foreign affairs in broad or general terms.” Bradley & Goldsmith, 172 U. Pa. L. Rev., at 1793.
Justice Thomas adds a solo dissent taking an even narrower view of the nondelegation doctrine (and, one assumes, the major questions doctrine):
I write separately to explain why the statute at issue here is consistent with the separation of powers as an original matter. The Constitution’s separation of powers forbids Congress from delegating core legislative power to the President. This principle, known as the nondelegation doctrine, is rooted in the Constitution’s Legislative Vesting Clause and Due Process Clause. … Both Clauses forbid Congress from delegating core legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty, or property. Neither Clause prohibits Congress from delegating other kinds of power. Because the Constitution assigns Congress many powers that do not implicate the nondelegation doctrine, Congress may delegate the exercise of many powers to the President. Congress has done so repeatedly.
In sum, it’s a 3-3 tie on the application of the major questions doctrine — and presumably the nondelegation doctrine — to foreign affairs (with three additional Justices declining to apply the major questions doctrine at all).
Briefly, I don’t see why the separation of powers concerns underlying the two doctrines would not apply to foreign affairs powers the Constitution vests exclusively in Congress. The Constitution made the determination that they are legislative powers properly exercised by a deliberative body (whatever their earlier status may have been). And as my article on delegating war powers indicates, Congress had serious concerns in the post-ratification period about war-declaration delegations. As that article also indicates, delegations in areas of concurrent power, such as the power to conduct war, were routinely accepted. As a result, the approach suggested by the Chief Justice and made more explicit by Justice Gorsuch seems on the right track from an originalist perspective.
The second issue involving the major questions doctrine is whether it is only a tool of textual interpretation (a “linguistic canon”) or whether it implements external values, in this case protection of separation of powers (a “substantive canon”). Justice Barrett, concurring here and echoing her concurrence in Biden v. Nebraska, says it is only a way of understanding textual meaning. Justice Gorsuch disagrees:
Though joining today’s principal opinion holding that “clear” statutory authority is required to sustain the exercise of an “extraordinary” power, ante, at 13, 20, JUSTICE BARRETT has suggested that the major questions doctrine might be reconceived. On her view, the doctrine need not be understood as a “substantive canon designed to enforce Article I’s Vesting Clause”—a “valu[e] external to a statute.” Nebraska, 600 U. S., at 508, 510 (concurring opinion). Instead, the doctrine might be thought of as a “commonsense principl[e] of communication” that counsels “skepticism” when executive officials claim extraordinary powers derived from Congress. …
It is a thoughtful effort, but I harbor doubts. … [T]his gloss on our major questions doctrine presents problems. Commonsense principles of communication do not explain many of our major questions cases—this one included. And if common sense really does go so far as to embrace a rule counseling “skepticism” of claims by executive officials that Congress has granted them extraordinary powers, that is common sense in name only. The reason for such skepticism must be Article I, a “substantive” source “external” to any statute.
…
Today’s decision illustrates the point. The principal opinion gestures at “common sense.” Ante, at 8. But throughout, this “common sense” is linked to “‘constitutional structure’” and “‘separation of powers principles.’” Ibid. The principal opinion begins with the Constitution, observing that Article I vests the tariff power in Congress, not the executive branch. … The principal opinion recounts the President’s claim that Congress has “delegated” an “extraordinary” amount of its tariff power to him in IEEPA. … And from there, the principal opinion proceeds to apply a clear-statement rule. It acknowledges that the ordinary meaning of the key statutory term in IEEPA—the word “regulate”—is capacious, so much so that it could be understood to “captur[e] much of what a government does.” … Still, the principal opinion reasons, that is not enough to sustain the President’s claim because the statute does not “clear[ly]” grant him the “extraordinary” delegated power he seeks. … When it comes down to it, common sense serves as little more than a segue to Article I’s Vesting Clause.
The dissent seems on board with this view as well — as quoted above, Justice Kavanaugh seems to understand the major questions doctrine as an implementation of separation of powers and in particular of the nondelegation principle. That seems to take the major questions doctrine as implementing a “substantive value” in the sense Justice Gorsuch describes.
Again a brief comment: I think the major questions doctrine is hard to justify as founded on Congress’ likely intent, because Congress (at least in modern times) seems happy to make broad delegations to the President. It makes more sense as a substantive canon, but that raises the serious question whether substantive canons are permissible under originalism — a point that worried Justice Scalia and continues to worry Justice Barrett. (I attempt an answer here.)
Posted at 6:02 AM