Doctrine Used to Nix Biden Moves Threatens to Undo Trump Tariffs

Standing in the way of President Donald Trump’s new trade war is a hurdle of the US Supreme Court’s own making.

The 6-3 conservative majority reinvigorated the major questions doctrine to strike down a number of Biden administration policies. Now the legal principle could stop Trump’s tariff policy against China, Canada, and Mexico depending on how things play out.

The doctrine directs courts to reject an agency’s interpretation of a statute when it presents an issue of great political or economic significance, unless Congress has clearly authorized it. In targeting tariffs on imports across-the-board, Trump invoked the International Emergency Economic Powers Act but it’s not clear that the law grants him that authority.

The major questions doctrine is the best argument challengers would have against the tariffs, said Thomas Berry, a director of the Cato Institute’s Center for Constitutional Studies.

“When the Supreme Court evaluates a case under the major questions doctrine, the two main things they look at are is this an extremely significant policy choice that you would expect Congress to decide explicitly? And then second, is this a novel use of the statute that’s never been attempted before?” he said. “This checks both of those boxes.”

National Emergencies

The justices cited the doctrine in undoing Biden’s eviction moratorium and vaccine mandate for US workers during the Covid pandemic. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” the majority said of the eviction moratorium.

Berry sees a lot of parallels between Trump’s use of executive power and the Biden administration’s attempt to impose student loan forgiveness unilaterally through a statute that, he said, “had never been used for anything close to that before.”

Similar to the Covid policies, the justices invoked the doctrine in 2022 when it struck down Biden’s rules on greenhouse gases and again in throwing out his plan to cancel student loan debt for more than 40 million people in 2023. Writing for the majority in the student loan cases, Chief Justice John Roberts said Biden was “seizing the power of the Legislature.”

In all four cases, the justices split along ideological lines.

Given the hundreds of billions of dollars at stake, the tariffs “are very obviously major, as major as any of those other measures,” said George Mason University law professor Ilya Somin.

Somin said that while the major questions doctrine isn’t new, it’s taken on new significance lately. “Over the last several years, the Supreme Court has used it in several high profile cases,” he said.

It’s intended to suss out congressional intent using an ordinary meaning test. Usually when Congress delegates a really important, broad power, “we expect clear and stronger statements,” Somin said.

The Supreme Court struck down Biden policies adopted pursuant to vague statutory language, Somin said. And he thinks Trump’s tariffs are susceptible to the same arguments.

Trump on Saturday ordered a 10% additional tariff on imports from China and 25% additional tariff on imports from both Canada and Mexico. Those tariffs on Canada and Mexico are now on hold. Trump pointed to illegal immigration and the fentanyl crisis as the national emergencies that trigger the authority presidents have under IEEPA to regulate international commerce. The law says the authority may only be exercised to deal with an unusual and extraordinary threat.”

The tariffs are necessary to deal with “the grave threat to the United States posed by the influx of illegal aliens and illicit drugs” at the borders, the orders said.

Challenge Uncertain

Congress passed IEEPA to curb executive power after presidents were using the Trading with the Enemy Act of 1917 to regulate economic transactions outside the context of war. Presidents have since used it to implement embargoes and sanctions, but never to impose tariffs.

Though tariffs aren’t mentioned as a tool that can be used to deal with an “unusual and extraordinary threat,” the law does give the president broad power to ban commerce, which could be problematic for challengers trying to invoke the major questions doctrine.

“IEEPA allows a very broad power to ban commerce and so given that, why can’t the president do something less?” asked Saikrishna Prakash, a University of Virginia law professor who focuses on the separation of powers.

There’s an argument in law that the greater includes the lesser and one could argue that a tariff is included, he said.

IEEPA is also a national security statute and courts tend to be quite deferential when the president is invoking his powers for national security reasons, said Emily Berman, a constitutional law professor at the University of Houston Law Center.

A big question is whether the major questions doctrine applies to Republican policies as well as Democratic policies or not, she said. But since each major question is dealing with the language of a particular statute, Berman said the justices can say the law they’re considering is different.

Any future legal challenge will depend on whether the tariffs take effect and if so, how long they remain in place. Because Trump changes his position so quickly there’s a possibility these are more threats than planned action, Berry, of the Cato Institute, said.

The tariffs against Mexico and Canada were postponed for a month after both countries agreed to take measures to combat migration and drug trafficking at the border. China on Monday announced retaliatory tariffs against the US, which are set to take effect on Feb. 10.

“I wouldn’t be shocked if in the next week we hear that he’s reached agreements with Canada and China as well, and all the tariffs are off and then there’s no legal challenge,” Berry said.