ANALYSIS: SCOTUS Tariff Opinion Muddies Nondelegation Doctrine

The US Supreme Court’s tariff opinion last month showcases a court that agrees 6-3 that President Donald Trump can’t impose unlimited global tariffs through the International Emergency Economic Powers Act, yet not on why.

The ruling leaves the law more unsettled than it was before: No rationale gained more than three votes. The justices sharply disagreed not only about statutory interpretation, but also about the nature and role of the major questions doctrine—a creature of the Roberts court itself.

The result muddies the waters on an old doctrine that has been making a comeback in legal opinions after almost a century: the nondelegation doctrine. Because the court entangles nondelegation in its major questions debate, lower courts may know less about permissible congressional delegation after Learning Resources v. Trump than they did before it.

Old Doctrine, New Importance

Nondelegation is the concept that Congress can delegate its core powers to another branch. In practice, however, the US legal system has long permitted broad delegations of legislative power.

When Congress delegates, it must only provide an “intelligible principle” to guide the exercise of the delegated power. In essence, Congress can’t permit unfettered discretion in the exercise of legislative power delegated to another branch. That test comes from a 1928 Supreme Court case, J.W. Hampton & Co. v. US, and a statute hasn’t been struck down by the Supreme Court under it since 1935.

The US Court of Appeals for the Fifth Circuit, however, has held several delegations unconstitutional in recent years under the intelligible principle test, including parts of the securities law, communications law, horse-racing regulation, and consumer financial regulation. The doctrine keeps coming up, and because the Trump administration is flexing the boundaries of statutory frameworks, it likely will continue to come up.

Tariffs on Everything

In Learning Resources, a group of small businesses challenged Trump’s sweeping, and highly volatile, worldwide tariff regime. Two rulings—one an appeal to the Federal Circuit from the US Court of International Trade and the other in federal district court—held that IEEPA doesn’t authorize tariffs.

The Supreme Court granted certiorari and agreed that Trump overstepped IEEPA. The court further held that the specialized trade court is the right jurisdiction to hear this type of dispute.

A Sharply Divided Court

That summary makes the question sound easier than the court found it. The Learning Resources decision comprises a total of seven opinions: five different opinions in support of the outcome and two dissents. Only 12.5 pages out of 164 are the “opinion of the court,” meaning the text backed by a majority of the justices.

The result is a mess. In the portion of the opinion joined by six justices, Chief Justice John Roberts said that the US Constitution allocates the power to tax to Congress alone and that no part of the taxing power resides in the executive branch. Because a tariff is a tax on imports, Roberts said, the president enjoys no inherent authority to impose tariffs during peacetime. Accordingly, any power of the president to impose peacetime tariffs must come from a statute. And that statute isn’t IEEPA, Roberts said.

First, IEEPA explicitly authorizes the president to do a number of things—none of which mentions tariffs or duties, Roberts said. Congress consistently lists tariff power when it intends to convey that power, and it didn’t here, he said, adding that the court was “skeptical” that Congress “hid a delegation of its birth-right power to tax within the quotidian power to ‘regulate.’”

Second, reading “regulate” in that fashion would render IEEPA partly unconstitutional, Roberts said, because the statute would convey the power to tax exports, which is expressly forbidden by the US Constitution.

Intelligible Principles?

What’s confusing about the decision is that it leans on statutory interpretation and nondelegation—then intertwines the more modern major questions doctrine with those concepts.

Under the doctrine, as articulated in 2022 in West Virginia v. EPA, courts require Congress to speak clearly if it wishes to assign to an agency decisions of “vast economic and political significance.” What constitutes a “major” question, how clearly Congress must speak, and exactly what type of doctrine this is, are still open questions.

Justice Neil Gorsuch’s concurrence and Justice Brett Kavanaugh’s dissent both talk about whether Congress can delegate to the president the power to tax through a tariff. Both cite J.W. Hampton — which annunciates the “intelligible principle” standard, but is factually about tariffs. As a result, it’s difficult discern if the justices mean to write about nondelegation or just the tariff power.

Yet Gorsuch’s concurrence is is nominally about the major questions doctrine. He says it’s a “clear statement rule,” which requires statutes to grant power explicitly in matters of vast economic and political significance, and exists to protect the separation of powers—traditionally, nondelegation’s concern. Justice Amy Coney Barrett also concurred, but disagreed with Gorsuch, saying that the major questions doctrine is just an aid to statutory interpretation. Roberts’ opinion on the issue straddles those positions, talking at length about a delegation of taxation as “extraordinary,” couching the problem in nondelegation terms, and then invoking the major questions doctrine.

Combined, the opinions result in more questions than answers. Are there some delegations that require clearer wording than others? What’s the critical point for analysis of a statute: when it was drafted, or when it was challenged because the statute or its use has suddenly become more important or controversial? Should courts first determine if a delegation is properly cabined, or whether the delegation is clear enough? Do we care less about an unconstitutional delegation if fewer people are impacted?

Confusing the two doctrines has consequences. Nondelegation has traditionally been a binary question: does the statute provide adequate guardrails on delegated power or not? The major questions doctrine, in contrast, reads circumstances into the words of a statute to determine whether a delegation is clear enough. That can can change the outcome, but also impacts the remedy available.Deciding what type of analysis to undertake and in what order can mean the difference between striking down a statute’s use for a specific purpose, and striking down a statute altogether.

This underlines the difficulty for lower courts in managing the wave of challenges to agency actions undertaken by the Trump administration. Courts don’t have a lot to go on, and the existing precedent is getting crowded with interpretive approaches. With the Supreme Court taking fewer merits cases, distortions in the development of the nondelegation doctrine and its place in modern statutory interpretation will linger longer and cause more uncertainty.

Learning Resources highlights how few justices agree on these approaches and how and whether they should be applied. Lower court judges are left with few intelligible principles to work.

Bloomberg Law subscribers can find related content on our Litigation Intelligence Center, our In Focus: Executive Orders & Actions page, and our Practical Guidance: Judicial Review of Executive Branch Action resources.

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