ANALYSIS: History Drives Major Questions Query in Tariff Case

Lower courts will have a harder time applying the major questions doctrine after the US Supreme Court’s fractured decision striking down President Donald Trump’s recent tariffs.

While the doctrine wasn’t part of the main holding in Learning Resources v. Trump, the justices who wrote about it shifted from the typical focus of whether the executive took an action of vast economic and political significance to whether actions were “unheralded” and “transformative” from a historical perspective. And they didn’t agree on where these factors fit in a major questions analysis.

Tariffs and Major Questions: It’s Complicated

The six-justice majority agreed that the president’s tariffs weren’t authorized under the statute he claimed as authority, the International Emergency Economic Powers Act. Only three of those six, however, used the major questions doctrine to get there.

Chief Justice John Roberts, joined by Justices Amy Coney Barrett and Neil Gorsuch, agreed that tariffs constituted a “major question” and that the president hadn’t demonstrated “clear congressional approval” in IEEPA.

Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor agreed that IEEPA didn’t authorize the tariffs under ordinary statutory analysis. In keeping with past opinions, they rejected the doctrine in a concurrence.

The dissenters, Justices Brett Kavanaugh, Samuel Alito, and Clarence Thomas, said that the tariffs passed the test, either through exceptions to major questions or by clear authorization.

So Learning Resources doesn’t create any binding precedent for major questions. But the justices frequently display doctrinal overlaps and shape future rulings in non-precedential statements. So what can be gleaned from the way the justices described the doctrine here?

To determine whether a question is “major,” courts look to its scope and impact. Specifically, they examine whether the executive is acting on a question of vast economic and political significance. If so, the reasoning goes, courts should expect Congress to have been particularly clear when delegating authority to the executive branch.

However in Learning Resources, two lesser-cited parts of the doctrine took center stage, both looking to the history of the relevant statute and its interpretation over time by the executive.

Past Practice: New Presidency, Who’s This?

This court’s textual approach has always relied heavily on history, and Learning Resources was no exception. Roberts’ opinion examined whether Trump was announcing “unheralded” authority in IEEPA—one that the statute’s drafters didn’t envision.

This concept comes from an oft-cited case among major questions proponents on the court: Utility Air v. EPA. That case held that when an executive finds new meaning in “long-extant” statutes, the court should “hesitate” before concluding that Congress gave the claimed powers to the agency.

The major questions doctrine also asks whether the executive’s action interprets the statute in a way that no administration has done before and is thus a “transformative expansion” of power. This concept also comes from Utility Air, which relied for its reasoning on FDA v. Brown & Williamson, a case holding that the Food and Drug Act didn’t allow the FDA to regulate tobacco.

“Unheralded” and “transformative” have some overlap with one another, and both prongs of the analysis in Learning Resources examined whether and how past presidents had used IEEPA and its predecessor statute to enable tariffs.

In the three-justice portions of Roberts’ opinion, he twice pointed out that no president has used IEEPA to impose tariffs.

Gorsuch’s concurrence and Kavanaugh’s dissent (joined by Alito and Thomas) also weighed in on this point, examining uses of previous tariff statutes by Presidents Richard Nixon and Gerald Ford to see if they provided any interpretation that might match Trump’s.

The justices applying the major questions doctrine to strike down the tariffs found that the previous interpretations didn’t match the current administration’s view, while the dissenting justices found that they laid tracks for Trump’s tariffs.

There’s No PEMDAS for MQD

The six justices who looked to past practice in the course of “unheralded” and “transformative” statutory interpretations didn’t agree, though, on where these factors fit in a major questions analysis. Roberts—in an opinion joined by Barrett, and Gorsuch—wrote that it should be the first step to help determine whether the issue is the type of “extraordinary” question that requires elevated Congressional clarity under the major questions doctrine.

But Gorsuch’s concurrence writing for only himself put the two factors later in the analysis. Agreeing with the dissent, he wrote that “unheralded” and “transformative” should come later to help determine whether there was “clear congressional authorization” for the tariffs. The factors are ways to measure the distance between the claimed executive power and the authority delegated in the statute.

The disagreement on when to apply these factors could be the result of the lack of clarity surrounding the major questions doctrine itself, and divisions in the Court about how it should operate.

It could also be structure. Roberts’ opinion blended the six-justice majority with a three-justice opinion on the major questions doctrine. Both opinions were woven together in alternating sections, and that organizational structure made the analysis unwieldy. Filling in the contours of the doctrine will now be even tougher for the lower courts.

Less Focus on Past Practice in Lower Courts

Another reason the lower courts may find it challenging to write about the major questions doctrine moving forward is that they haven’t systematically focused on the “unheralded” and “transformative” parts of the analysis.

A Bloomberg Law search of federal decisions mentioning major questions at least twice (indicating some level of depth to the doctrine’s analysis) reveals that only 17% have mentioned one of those terms at least twice.

Just under 40% of the major questions decisions contain at least one of the terms.

In the wake of Learning Resources, it will be interesting to see how (and whether, given the non-precedential major questions threads in this opinion) the lower courts try to make sense of the opinion’s impact on the major questions doctrine.

Future decisions are likely to take an increased interest in a historical understanding of a statute’s meaning and authority and in whether the presiding administration’s view of statutory power via its executive actions is a departure from previous practice.

Bloomberg Law subscribers can find related content on our In Focus: Loper Bright & Standards for Agency Review, Practical Guidance: Judicial Review of Executive Branch Action, In Focus: Executive Orders & Actions, and In Focus: Tariffs resources.

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