The Tariff Case and the Major Questions Doctrine
Trump has strong legal arguments but more than law is at stake
The Supreme Court on Tuesday granted certiorari in two cases raising the question of the legality of President Trump’s tariffs under the International Emergency Economic Powers Act (IEEPA). One of the decisions it will review, from the United States Court of Appeals for the Federal Circuit (CAFC), clarifies how I think the Supreme Court should and will think about these issues. The CAFC ruled the tariffs unlawful under IEEPA. But the dissenting opinion of Judge Richard Taranto is to my mind a better guidepost to how a majority of the Supreme Court will view the legal issues in the case.
I found Judge Taranto more persuasive than the majority on the proper interpretation of IEEPA and on why Section 122 of the Trade Act of 1974 does not preclude the president’s assertion of tariff authority under IEEPA. But here I want to focus in more detail an issue I have previously discussed: the proper application of the major questions doctrine (MQD). I think Judge Taranto had the better of this argument as well.
The CAFC Majority and the Major Questions Doctrine
IEEPA authorizes the President to “regulate . . . importation . . . of . . . any property in which any foreign country or a national thereof has any interest by any person” in order “to deal with any unusual and extraordinary threat” to U.S. national security, foreign policy, or the U.S. economy from outside the United States. President Trump has imposed a number of duties on imports under IEEPA and determined that these duties dealt with “unusual and extraordinary threat[s]” to the national security and economy of the United States that had sources “outside the United States.”
The central question in the case is whether the president’s IEEPA authority to “regulate . . . importation . . . of . . . any [foreign] property” justifies the tariffs. I believe, for reasons stated by Judge Taranto but not canvassed here, that it does. But that conclusion leads to another important question: whether that reading survives the MQD.
The CAFC majority thought not. It described the MQD serviceably enough as follows (citations simplified):
The Supreme Court has explained that the doctrine applies in “cases in which the ‘history and the breadth of the authority . . . asserted’” by the Government entails vast “economic and political significance.” West Virginia v. EPA, 597 U.S. 697, 721 (2022). In such cases, there may be a “‘reason to hesitate before concluding that Congress’ meant to confer such authority.” Id. When the major questions doctrine is implicated, the Government must point to “clear congressional authorization” for that asserted power. Id. at 732.
Courts sometimes tie the clear congressional authorization requirement, as here, simply to whether the asserted authority has vast economic consequences. But that factor alone does not a MQD case make. As Curt Bradley and I explained, the Court “in practice looks to a variety of factors—including the breadth of the claimed authority, the history and novelty of the agency action, persistent congressional inaction, and other contextual clues about congressional intent—to determine whether agency action is ‘major’ and thus demands clear congressional authorization.”
The majority acknowledged this point when it reasoned:
The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both “unheralded” and “transformative.” [West Virginia, 597 U.S.] at 722, 724. The Supreme Court has explained that where the Government has “never previously claimed powers of this magnitude,” the major questions doctrine may be implicated. Biden v. Nebraska, 600 U.S. 477, 501–03 (2023).
Since IEEPA was promulgated almost fifty years ago, past presidents have invoked IEEPA frequently. But not once before has a President asserted his authority under IEEPA to impose tariffs on imports or adjust the rates thereof.
This analysis, I think, is inadequate.
The main reason is that we do not have congressional inaction and silence, or “unheralded” action, in the tariff case as in the other MQD cases. To the contrary, the Nixon administration invoked the phrase “regulate . . . importation” in IEEPA’s predecessor, the Trading with the Enemy Act, to justify a global 10% duty. And the CAFC’s predecessor, the Court of Customs and Patent Appeals (CCPA), upheld the validity of that action in Yoshida. Congress then enacted IEEPA against the background of this decision and kept the identical language.
There are differences between the Nixon duties and the Trump duties, and it is probably too strong to say that Congress ratified the CCPA interpretation of “regulate . . . importation” in IEEPA. But it is also too strong—indeed, in my view, wrong—to say that the Trump tariff was unheralded, or novel, for MQD purposes. The Nixon administration had invoked identical language to Trump’s in a related way, and that invocation was upheld by a court, and the language was then reenacted in IEEPA. Even given the differences between the Nixon and Trump administration actions, Trump following in the Nixon administration footsteps based on identical statutory language reenacted by Congress was not unheralded action, and certainly falls far outside the novelty/unheralded action rubric of prior MQD cases.
And there is another reason not to read the MQD to apply to the IEEPA tariff case.
The MQD and Foreign Affairs Statutes
I believe the best understanding of the MQD is that it aims to capture, as the Chief Justice put it in West Virginia v. EPA, the “practical understanding of legislative intent” and rests on “common sense as to the manner in which Congress [would have been] likely to delegate.” Or as Justice Barrett put it in her concurrence in Biden v. Nebraska, the MQD is “an interpretive tool reflecting ‘common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.’”
As Bradley and I explained, there are reasons why, under this understanding of the MQD, the “doctrine will often not be triggered when Congress authorizes executive branch action related to foreign affairs.” The reason most salient in the tariff case is as follows:
[The] Court has frequently observed that, given the different competencies of the two branches, Congress has good reason to—and intends to—authorize many executive branch actions related to foreign affairs in broad or general terms. As it said in Zemel, “Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than that it customarily wields in domestic areas.” Several other decisions make similar points. The fact that many of the broadest congressional authorizations to the executive branch in the eighteenth and nineteenth centuries involved military affairs, trade, and related foreign affairs matters confirms the Court’s insight about congressional expectations in these decisions.
Our article applied this logic in a general way to IEEPA and Section 232 of the Trade Expansion Act of 1962, which gives the president very broad discretion over imports. We explained (with emphasis added):
Both IEEPA and Section 232 are authorizations that directly and expressly relate to foreign affairs. As such, this is an area where Congress can be expected to perceive comparative competence in the executive branch and provide broad authorization for major presidential action. Importantly, one can reach this conclusion without having to revert to a foreign-versus-domestic affairs distinction, even though in these contexts the statutes’ foreign affairs and national security focus is evident. The reason has to do with historical practice. There is a settled practice of about a century of the executive branch exercising emergency powers in many important contexts pursuant to the broadly worded IEEPA and its predecessor, the Trading with the Enemy Act. And there is an even longer practice, dating to the Founding, of presidents exercising trade-related sanctions authority pursuant to broadly worded statutes.
Bradley and I added that “the Court has already suggested in both of these contexts that one should expect Congress to, in effect, paint with a broad brush.” The most important such suggestion came in Dames & Moore, an IEEPA case, where the Court interpreting IEEPA stated that “Congress can hardly have been expected to anticipate in any detail” how the President should “respon[d] to international crises.” That sentence, and the logic on which it is built, temper the relevance of the MQD in interpreting IEEPA—especially when combined with the point above that the “novelty” criterion should have little to no weight here.
The CAFC Dissent and the Major Questions Doctrine
Justice Kavanaugh made these points about congressional expectations in his concurrence a few months ago in FCC v. Consumers’ Research:
[T]he major questions canon has not been applied by this Court in the national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas. On the contrary, the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people—and that Congress specifies limits on the President when it wants to restrict Presidential power in those national security and foreign policy domains. See Youngstown, 343 U.S., at 635–638 (Jackson, J., concurring); see also Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality opinion); Dames & Moore v. Regan, 453 U.S. 654, 678–679 (1981); Zemel, 381 U.S., at 8–9; Al–Bihani v. Obama, 619 F.3d 1, 38–41, 48–52 (CADC 2010) (Kavanaugh, J., concurring in denial of rehearing en banc); C. Bradley & J. Goldsmith, Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1743, 1789–1801 (2024).
And Judge Taranto in dissent picked up on the Kavanaugh concurrence and tied it to the “novelty” point (with citations trimmed):
The language of IEEPA is undeniably broad on its face. It lists a host of powers—some (such as prohibition and prevention) even more restrictive than tariffing. There is no suggestion that the IEEPA-specified authority must be exercised only for specified types of products or only for a narrow set of countries. The facially evident intent is to provide flexibility in the tools available to the President to address the unusual and extraordinary threats specified in a declared national emergency. This is not an “ancillary,” “little used backwater” provision, West Virginia, 597 U.S. at 710, 730, or a delegation outside the recipient’s wheelhouse.
The breadth is anything but surprising in the context here. As Justice Kavanaugh recently reiterated in explaining why the canon has not been applied “in the national security or foreign policy contexts,” “the canon does not reflect ordinary congressional intent” in these contexts because “the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people.” Consumers’ Research, 145 S. Ct. at 2516 (Kavanaugh, J., concurring). There is simply no “common sense” expectation in the present context, involving emergencies touching foreign affairs, that Congress was unlikely to be granting the authority at issue. The facial breadth in an emergency context makes the straightforward application of the statute’s words hardly “unheralded,” West Virginia, 597 U.S. at 722, and if a more specific herald is needed, see Biden, 600 U.S. at 506, it is present in the 1971 proclamation, Yoshida CCPA, and subsequent congressional adoption of the relevant language in 1977.
Acknowledging that the tariff case implicates uncertainties in the proper application of MQD, this is basically my best understanding of how the MQD should operate in this case.
But I Make No Prediction
I lack space and time to justify my belief that Judge Taranto got the basic statutory interpretation questions right. I have focused instead on explaining why I think he got the MQD issue basically right and why I think the majority got it wrong.
These are some of the reasons why I think the best purely legal answer in the case is to uphold the tariffs. But I make no predictions. The consequences of this case are too big in too many directions—a win or a loss for Trump has massive economic and political consequences, not to mention important legal implications for future presidencies. I do not know how the Court will process these factors; but it will surely not ignore them.
Moreover, although I think the right answer is that the MQD does not apply here, I believe the Court will feel pressure to apply the doctrine since it will look to many very political to let the tariffs slide past the MQD after the Court invoked the doctrine to deny aggressive regulatory initiatives by the Biden administration. It will especially be pressured by the fact that it applied the MQD to Biden invocations of emergency powers, even if the Biden cases are (as I believe) legally distinguishable from the emergency invocation in the tariff case given the long history and expectation of broad construction of IEEPA and related statutes.
And on top of all this, the Court will likely have other major presidential power cases on its docket next term—the Alien Enemies Act matter from the Fifth Circuit; at least one major removal case; a birthright citizenship case; possibly the National Guard issues from the Ninth Circuit; and more. Surely some of the Justices will think about these decisions as a group. But who knows how.
All I can say with confidence is that the Trump administration has very powerful legal arguments for its IEEPA tariffs—mainly reflected in Judge Taranto’s dissent.