139. Tariffs, Non-Delegation, and the Major Questions Doctrine

President Trump's economic misadventure is already being challenged in court. The resulting cases will test the consistency of conservative judges' hostility to broad statutory delegations of power.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. We also just launched “First One,” the weekly bonus audio companion to the newsletter for paid subscribers, with the fourth episode dropping last night. If you’re enjoying the newsletter, I hope that you’ll consider sharing it (and subscribing if you don’t already):

Counting last night’s “First One,” today is the fifth straight day with a “One First” post. I fear that the volume is more than you signed up for, but one of the goals of this newsletter has always been to try to help raise the level of public understanding and debate about the most pressing Supreme Court-related issues of the day. Suffice it to say, there are more of those right now than is … normal.

Thus, Friday night’s post covered the Court’s 5-4 ruling in Department of Education v. California); and Saturday morning’s post covered the Abrego Garcia case—and federal courts’ power to use their authority over U.S. officials to remedy unlawful removals to foreign custody). Abrego Garcia may itself be heading to the Supreme Court sooner rather than later; the government is supposed to return Mr. Abrego Garcia to the United States by 11:59 EDT tonight—unless the Fourth Circuit or the Supreme Court blocks the district court’s order first.

I wanted to use today’s post to cover what is somehow an even bigger topic—President Trump’s new tariff … program (if we can call it that), which is already being challenged in court. I’m not an economist, and so wouldn’t presume to offer any expertise on the wisdom of the tariffs (or the lack thereof). But since they’re already being challenged in court, I thought I’d take the chance to flag two of the biggest arguments that we’re likely to see against them—that the statute on which they’re supposedly predicated, the International Economic Emergency Powers Act (IEEPA), is an unconstitutional delegation of power to the President; and that, at the very least, IEEPA is an insufficiently clear delegation of such power to overcome the so-called “major questions doctrine.”

Both of these legal arguments have come into vogue in recent years thanks largely to their embrace by conservative lawyers, litigants, and judges. The tariff cases will thus pose an interesting test for whether those same jurists are as invested in these doctrines when they’re being used to thwart a Republican President’s policy choices—whether or not those choices prove to be an economic disaster.

But first, the news.

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On the Docket

Obviously, the biggest headline out of the Court last week was Friday afternoon’s decision in Department of Education v. California, in which a 5-4 Court granted an emergency application from the Trump administration that will allow it to continue withholding roughly $65 million in committed teacher training grants (which the government claims it can withhold because the recipients have “DEI” policies) while the lawsuit challenging the withholding goes forward. My post on Friday covered why I think the decision, though definitely a “win” for the federal government, might not be as big a win as it seems. We may learn a lot more this week about whether that reading is correct.

In addition to holding the second week of the “March” oral argument session, the Court also handed down two decisions in argued cases on Wednesday:

1. Medical Marijuana, Inc. v. Horn: For a 5-4 majority, Justice Barrett, joined by Justices Sotomayor, Kagan, Gorsuch, and Jackson, held that, in civil suits under the Racketeer Influenced and Corrupt Organizations (RICO) statute, a plaintiff may seek treble damages for business or property loss even if the loss resulted from a personal injury, even though the statute doesn’t allow relief for personal injuries themselves. Justice Thomas and Justice Kavanaugh wrote separate dissents, the latter of which was also joined by Chief Justice Roberts and Justice Alito. Among other things, it’s the first time we’ve ever seen this particular 5-4 lineup.¹

2. FDA v. Wages and White Lion Investments, LLC: In a ruling that struck me as at least a bit of a surprise, the Court, in an opinion by Justice Alito, unanimously vacated a Fifth Circuit decision that had struck down FDA efforts to regulate flavored e-cigarettes. The Court didn’t reverse the Fifth Circuit (suggesting that the court reached the wrong result); rather, it sent the case back for further proceedings in light of Justice Alito’s analysis—albeit analysis that puts a pretty heavy thumb on the scale in favor of the FDA, as Justice Sotomayor’s solo separate concurrence suggests.

The only other formal action from the Court last week was Monday’s regular Order List. There were no grants of review, but Justice Sotomayor published a six-page dissent (which Justice Jackson joined) from the denial of certiorari in Shockley v. Vandergriff—about a circuit split over whether a prisoner can obtain a “certificate of appealability” so long as a single circuit judge assents, or whether he needs a majority of a panel to do so.

Turning to this week, we expect a regular Order List at 9:30 ET this morning. Beyond that, there’s no formal business on the Court’s agenda until next Thursday (April 17), when it is scheduled to hold a “non-argument” session and a Conference. Of course, all five of the pending Trump administration emergency applications are now ripe, so it’s likely we’ll still hear a fair amount from the justices this week; we just won’t know when/if anything is coming until it comes.

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The One First “Long Read”:
Tariffs and the Limits of Congressional Delegations

Without getting into the universe of policy questions and criticisms of President Trump’s tariff-palooza, there are also some fascinating legal questions about the scope of the President’s authority to unilaterally impose tariffs. During the first Trump administration, the President relied upon section 232 of the Trade Expansion Act of 1962 to impose steel tariffs against Canada. But these new tariffs, according to the White House, are predicated on IEEPA, enacted in 1977—not the TEA. That statute provides a remarkably broad but also un-specific delegation of power:

Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.

And one of the authorities provided “by section 1702” is 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 by any person, or with respect to any property, subject to the jurisdiction of the United States;

In other words, IEEPA doesn’t specifically mention tariffs, but you could at least construct an argument that a tariff could be shoehorned into the text of section 1702. And as the Congressional Research Service noted last week, although President Nixon had once used IEEPA’s predecessor, the Trading With the Enemy Act, to impose a tariff, “no President has previously used IEEPA to impose tariffs.”

We’ve already seen a number of lawsuits filed challenging the lawfulness of the President’s actions. And although they allege a veritable Smorgasbord of theories, the two biggest thematic challenges are that Congress hasn’t authorized these tariffs with the precision and specificity required by the “major questions doctrine,” and that, even if it has, the authorizations represent an unconstitutional delegation of legislative power—in violation of the “non-delegation doctrine.” If nothing else, then, the tariffs provide a good excuse to introduce folks to these two related (but very distinct) legal concepts—and how they might apply in the Trump tariff cases. And although it’s easier to analyze the “major questions” issue first and “non-delegation” second, I’m going to introduce them in reverse order—for reasons that should hopefully become obvious.

The Non-Delegation Doctrine

At its core, the non-delegation doctrine is the idea that the Constitution bars any of the three branches of the federal government from delegating their powers to one of the others, although the focus is almost always on delegations by Congress. The doctrine reached its apex in 1935 (what Cass Sunstein has called the doctrine’s “one good year”), when the Court relied upon it to strike down two delegations at the heart of the New Deal in Schechter Poultry and Panama Refining. But as part of the post-1937 shift in the Court’s approach to economic legislation, it took a far more deferential view of delegations—requiring only that Congress impose an “intelligible principle” to limit the authority it delegates to executive branch agencies. That test is … easy to satisfy.

The Supreme Court in recent years, alongside a handful of lower-court judges, has dabbled with reinvigorating the non-delegation doctrine—most notably in Gundy v. United States in 2019. Indeed, I wrote last fall about FCC v. Consumers’ Research, in which the Supreme Court is reviewing an en banc Fifth Circuit decision that had struck down the Universal Service Fund on non-delegation grounds. But even if the Court puts more teeth into non-delegation (which, as I suggested last fall, seems unlikely for a host of reasons), it’s unlikely that it would start with IEEPA. After all, even some of the more zealous advocates of a robust non-delegation doctrine have suggested that it should have less force in the context of national security and foreign relations—areas in which (1) the President already has more of a claim to inherent power; and (2) broad delegations of power have been the norm going all the way back to the Founding.

That may help to explain why, when tariffs on Canadian steel imposed by President Trump during his first term were challenged on non-delegation grounds, the Federal Circuit rejected the challenge. And although relying upon IEEPA instead of the Trade Expansion Act may raise statutory questions, the constitutional one shouldn’t depend upon the specific statute. Thus, barring a real (and, in my view, unlikely) shift from the Court, it’s hard to see a non-delegation challenge to the tariffs succeeding.

The Major Questions Doctrine

As I noted in November, part of why a more robust reinvigoration of the non-delegation doctrine seems unlikely to me is because the Supreme Court has seized upon a doctrine that does at least some of the same work—the so-called “major questions doctrine” (MQD). Although the non-delegation doctrine is an argument that Congress can’t constitutionally delegate the power at issue to the President, the major questions doctrine is better understood as a principle of statutory interpretation—that, where the President is embarking upon new programs with “vast economic or political significance,” Congress must specifically authorize the program.

Even if a statute can plausibly be read to support the program—indeed, even if the better reading of the statute supports the program—that’s not enough. Absent clear statutory support, the program is unlawful. Of course, one big difference between the major questions doctrine and the non-delegation doctrine is that Congress can always respond to an MQD holding by providing the authority the courts held to be missing. But our political reality today is that Congress doesn’t do that—which ties the doctrines together much more closely, at least with respect to their practical effects (and perhaps creates an incentive for judges to rely upon the MQD instead of non-delegation, since they produce the same short-term result while preserving a future Congress’s power).

Like a lot of others, I’ve been pretty critical of the major questions doctrine—which seems especially difficult to justify as applied to statutes that were enacted by Congress before the Supreme Court articulated such an understanding. It also seems poorly designed for cases just like the tariff cases—in which Congress has, deliberately, delegated broad and open-ended authority to the President to deal with a national security emergency, and has left the details to be filled in by the President depending upon the specific context of the emergency. (After all, Congress can’t always predict in advance which specific powers will be needed during specific emergencies, and there are examples of statutory delegations for emergencies dating all the way back to 1792.)

But the Court has run roughshod over those criticisms—applying the major questions doctrine not just to “ordinary” statutes, but to ones specifically intended to delegate power to respond to emergencies, as well. Thus, in Biden v. Nebraska (the 2023 student loan case), the Court rejected the Biden administration’s argument that the student loan debt forgiveness program was authorized by the HEROES Act of 2003—a statute that authorized the Secretary of Education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the Act as the Secretary deems necessary in connection with a war or other military operation or national emergency.” The fact that the Biden administration had pegged the student loan debt forgiveness program to the COVID national emergency was … insufficient, in the majority’s view.

One of the most common criticisms of the major questions doctrine has been its subjectivity. Whether a specific program involves a matter of “vast economic or political significance” will often be in the eye of the beholder. And even when it’s clear that it is, the threshold the doctrine requires for statutory clarity is, at best, a matter of debate. That said, if the broad but open-ended delegation of power in the HEROES Act was insufficient, it sure seems like IEEPA isn’t any clearer. And it also seems like President Trump’s tariffs ought to meet any judge’s test for a matter of “vast economic or political significance”; one need look no further than the stock markets for proof of that. Thus, if judges (and justices) are going to be consistent about the major questions doctrine, there seems to be plenty of support for the conclusion that IEEPA is insufficiently clear to support Trump’s tariffs.

There are still two more points worth making, though. First, it’s not obvious that the tariffs can be challenged on their face, since the Trump administration has imposed different tariffs on different countries. Thus, even if the cases challenging the tariffs succeed, there’s a messy question about whether we’ll have to see one-country-at-a-time litigation, or whether there’s a universe in which a court would be in a position to hold that the entire scheme (or, at least, the preposterous “equation” undergirding it) is unauthorized by IEEPA. The answer to that question could, quite obviously, have a lot to say about how effective the litigation challenging the tariffs will be at undoing them—and how quickly, as well.

Second, and related, even if the litigation struggles in this respect, there’s an obvious way for the tariffs to be repudiated on a universal basis—and that’s for Congress (remember them?) to do so. Yes, President Trump would surely veto a bill that attempts to rescind these tariffs, but (1) it’s possible, if the economic consequences continue to accelerate, that there would be enough votes in both chambers to override a veto (it would take a two-thirds majority in each); and (2) if there aren’t enough votes to override, that would be quite a message, too. Of course, this would require Republican leadership in both chambers to agree to bring a bill to a vote. I’m not holding my breath, but it’s worth reminding folks that this is supposed to be an option, too.

In contrast, the worst-case scenario, it seems to me, would be for courts to reject a major questions-based challenge to the tariffs—not just because such an outcome would be suggesting that Congress sanctioned this nonsense when it enacted IEEPA in 1977, but because it would also validate some of the sharpest criticisms of the major questions doctrine, i.e., that it’s a tool for federal judges to use to push back against policies they don’t like on partisan and/or ideological grounds, not a neutral restraint on Congress in all cases. Indeed, if these tariffs aren’t a paradigmatic case for the MQD, what is?

I know I’m becoming a broken record on this, but as with so many of the other novel legal questions we’re currently encountering, we may find out the answer to that question very soon.

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SCOTUS Trivia: The Court’s Private Reporters

Today’s trivia is wholly unrelated to the rest of the post, and was prompted by a short review I was writing (for JOTWELL: The “Journal of Things We Like Lots”), which should drop later this month. Today, and since 1875, the Supreme Court’s formal decisions appear in a volume known as the United States Reports—an official government publication supervised by the Court’s “Reporter of Decisions,” who is currently Rebecca A. Womeldorf.

But it wasn’t until 1874 that Congress appropriated funds for the Court to publish its own decisions (something it began doing in 1875). Prior to 1875, the Court’s rulings were published by private individuals—who used sales of the reporters (and, starting in 1815, a too-modest stipend from Congress) to finance their efforts. Some of the reporters were more diligent than others; there remains to this day debate over whether the volumes published by William Cranch (John Adams’ nephew, and long-time D.C. Circuit judge) even captured all of the Court’s rulings during the relevant time period.

There’s quite a lot to say about the Court’s seven private reporters—including the dispute between two of them, Henry Wheaton and Richard Peters, that helped to provoke one of the Court’s most significant early rulings in a copyright case (known, shockingly enough, as Wheaton v. Peters). But for now, I’ll just note the most trivial feature of all of this—the way that Supreme Court decisions are cited. According to the Bluebook, the official citation for a case includes the volume number, the abbreviation “U.S.” (for U.S. Reports), the first page on which that particular ruling appears, and the year. Thus, you might see “Bouarfa v. Mayorkas, 604 U.S. 6 (2024).” But for the 90 volumes of reports that were published before the Court took ownership, the Bluebook says to include the private reporter’s name as well—since the “U.S.” volume number was retrofitted onto it after the fact. Thus, Marbury v. Madison is cited as 5 U.S. (1 Cranch) 137 (1803). And the Supreme Court itself, which has a style all its own, continues to use only the private reporters’ names when citing pre-1875 decisions—so when Marbury is cited by the justices, it appears as 1 Cranch 137 (1803).

Now that’s trivia.

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1. The last time Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh were in dissent together was in the Court’s June 2022 ruling in Ysleta del Sur Pueblo v. Texas—before Justice Jackson had joined the Court.