Tariffs Ruling Splits Court’s Conservatives Over Major Questions (1)

The US Supreme Court decision rejecting the Trump administration’s sweeping tariffs divided its six conservative justices over a doctrine that they’ve used to rein in the administrative state.

Writing for the 6-3 majority on Friday, Chief Justice John Roberts said an emergency economic powers law lacked a clear statement giving President Donald Trump authority to impose the tariffs. Roberts dismissed the notion that the major questions doctrine, which calls for an explicit grant of legal power, doesn’t apply to foreign affairs, emergency statutes, or tariffs.

“There is no major questions exception to the major questions doctrine,” Roberts wrote.

In dissenting opinions, three conservative justices argued for the exceptions—marking one of several disagreements about the doctrine that could influence how the Supreme Court applies it in future cases.

“The administration justifies a lot of frankly unprecedented actions the president takes on emergency bases or foreign implications or trade implications,” said Ashley Akers, a Holland & Knight partner who focuses on international trade litigation. “So, this is at least a signal in the major questions realm that the court’s not going to be so broad in its interpretation of executive authority.”

The court’s decision also spotlighted friction on more fundamental aspects of the major questions doctrine, including continued debate over whether it’s simply a tool to interpret the law or a more binding rule about the delegation of power.

“These disagreements suggest continued uncertainty over how the court applies the doctrine,” said Seth Davis, an administrative law professor at the University of California, Berkeley.

The major questions doctrine bars agencies from taking unprecedented actions that could have transformative economic and political impacts without clear congressional authorization.

While the court has rarely used the doctrine—first called that by the court in its decision in West Virginia v. EPA—the current conservative majority has increasingly employed it in recent years when considering cases challenging the authority of administrative agencies.

The justices in 2021 and 2022 developed a strengthened version in opinions striking down environmental regulations, employer vaccine mandates, and the pandemic-era eviction moratorium.

Fault Lines

The conservative split on exceptions to the doctrine put Roberts and Justices Neil Gorsuch and Amy Coney Barrett on one side of the divide, and Justices Brett Kavanaugh, Samuel Alito, and Clarence Thomas on the other. The division also pitted two Trump appointees—Gorsuch and Barrett—against a third, Kavanaugh. Trump singled out Kavanaugh for praise in remarks afterward while criticizing the majority as “unpatriotic and disloyal to the Constitution.”

Prior to the ruling, it was unclear whether the court’s conservative majority—often deferential to executive authority—would embrace Solicitor General John Sauer’s proposed foreign affairs exception to the major questions doctrine. But Sauer was unable to persuade three of the Republican-appointees to go along.

“Only three justices are on record supporting a foreign affairs exception, and my guess is that’s all there is,” said Richard Revesz, an administrative law professor at New York University who served as a top regulatory official in the Biden administration.

Still, Gorsuch said in his concurring opinion that he shared a “limited point of agreement with the dissent” about such an exception. Disputes that implicate both congressional power and the president’s independent constitutional authority could mean the major questions doctrine doesn’t apply as it normally would, he said.

A dispute over an emergency wartime measure could involve the type of presidential power that might get Gorsuch to rethink the foreign affairs exception, said Daniel Deacon, a University of Michigan administrative law professor.

Agree to Disagree

Even the justices in the majority found room for argument over the nature and scope of the doctrine.

Gorsuch spent a significant portion of his 46-page concurrence revisiting an ongoing debate with Barrett over where the grounding for the doctrine should be found. Gorsuch criticized Barrett’s “commonsense” approach as waffling between a “clear-statement rule and nothing at all.” Barrett, in her own concurrence, accused him of mischaracterizing her position.

Georgetown Law Professor Stephanie Barclay, who clerked for Gorsuch on the Supreme Court, said their argument hinges on the character of the doctrine.

“Gorsuch treats the major questions doctrine as a substantive canon—a clear-statement rule rooted in the Constitution’s structural commitments,” Barclay said. “Barrett treats the doctrine as an application of ordinary textualism—what she calls a ‘commonsense principle of communication.’”

Gorsuch also took aim at his liberal colleagues in the majority who, he said, signed on to a majority opinion applying the doctrine despite past criticism. In a concurrence, Justice Elena Kagan said she didn’t think the doctrine was necessary to decide the case, despite Gorsuch’s apparent desire for “converts.”

The atypical majority spoke to the unique facts of the case and not to an adoption, acknowledged or not, of the doctrine by the court’s liberals, according to University of Dayton School of Law Professor Kevin Leske.

“We have a 3-3-3,” he said. “Back to the neutral case, I think you’d be back to the 6-3 with the liberals being the three.”

Still, Barclay said, the tariffs decision signals that all nine justices are now engaging with the foundations and scope of the major questions doctrine–even as the court’s liberal wing maintained it wasn’t applying it.

“That kind of sustained, serious engagement is the sign of a doctrine that is maturing and deepening,” Barclay said.

Leske, who has written critically about the doctrine in the past, said he thought the tariffs decision helped bolster the court against criticism that the doctrine was applied unevenly by the court’s conservatives during the Biden administration.

“It’s kind of good, I think, for the court—for its own image—that we have this decision saying major questions applies under this administration as well,” Leske said.

The case is Learning Resources, Inc. v. Donald J. Trump, U.S., No. 24-1287, decided on 2/20/26.