Should the Supreme Court Be “Pro-Congress”?

Nine justices, seven opinions: a tour through the SCOTUS tariff writings.

For a ruling that has already been called possibly “the most important Supreme Court decision this century,” Chief Justice John Roberts’ majority opinion striking down President Trump’s sweeping, worldwide tariffs was incredibly short and to the point.

As a point of comparison, if you look at other candidates for that title: the majority opinion in Trump v. United States, the presidential immunity case, was 43 pages long. The majority opinion in the Dobbs abortion case lasted 79 pages. The campaign finance ruling in Citizens United took 54 pages.

Roberts’ opinion in Learning Resources v. Trump, the tariffs case, lasted a mere 21 pages, and even fewer (around 12) if you count only the parts where he was actually speaking for a majority of the court. (Not everyone in the majority joined all of Roberts’ opinion, as we’ll discuss below.) The prose is not flowery, but blunt and workmanlike. You could read only these three paragraphs, from Roberts’ conclusion, and walk away with a pretty solid sense of the whole thing:

The President asserts the extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope. In light of the breadth, history, and constitutional context of that asserted authority, he must identify clear congressional authorization to exercise it.

[The] grant of authority [in the International Emergency Economic Powers Act, or IEEPA, which Trump used to justify the tariffs] to “regulate . . . importation” falls short. IEEPA contains no reference to tariffs or duties. The Government points to no statute in which Congress used the word “regulate” to authorize taxation. And until now no President has read IEEPA to confer such power.

We claim no special competence in matters of economics or foreign affairs. We claim only, as we must, the limited role assigned to us by Article III of the Constitution. Fulfilling that role, we hold that IEEPA does not authorize the President to impose tariffs.

Why, then, does the total amount of writing produced by the court in Learning Resources stretch out over 170 pages? Out of the nine justices, seven wrote opinions in the case: Roberts’ majority opinion, four concurrences, and two dissents.

This morning, we’ll try to tease out some of the nuances that emerge across these writings, especially on a central question that runs throughout all seven, about whether (or to what degree) the Supreme Court should be trying to elevate one of its two fellow branches of government over the other.

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Let’s start here: Just like how no easy decisions land on the president’s desk, no easy cases end up at the Supreme Court.

As Roberts noted above, in Learning Resources, President Trump took a vague portion of the International Emergency Economic Powers Act (IEEPA), allowing the president to “regulate…importation” during a national emergency, and said that those words gave him the power to impose tariffs.

That’s certainly not an obvious interpretation of IEEPA, but it’s not an insane one either. It’s not as if Trump took a statute that says, “The president can deport illegal immigrants,” and went, “Aha! I can impose tariffs!” That would be an easy case. This one is a much closer question. That’s what makes it a Supreme Court case.

The best parallels to Learning Resources, where Trump was trying to claim an expansive grant of executive power, are cases from the previous administration where then-President Joe Biden was trying to claim sweeping executive power, a set of disputes which hung over the tariffs case.

In Biden v. Nebraska, for example, the former president took a provision in the HEROES Act allowing the executive branch to “waive or modify any statutory or regulatory provision applying to [a federal] student-loan program” during a national emergency, and said that this allowed him to unilaterally cancel $430 billion in federal student loan debt. Like Trump with IEEPA, this wasn’t an insane interpretation of the HEROES Act, but it wasn’t an obvious one either.

What should the Supreme Court do when confronted with these not-obvious, not-insane statutory interpretations?

All nine justices would tell you that they start with the text of the statute (“We’re all textualists now,” Justice Elena Kagan famously said in 2015), but this will only take us so far.

Both Chief Justice John Roberts, in his majority opinion, and Justice Brett Kavanaugh, in the main dissent, use Black’s Law Dictionary to define “regulate” as meaning to “fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.”

Roberts then writes:

But the facial breadth of “regulate” places in stark relief what the term is not usually thought to include: taxation. The U.S. Code is replete with statutes granting the Executive the authority to “regulate” someone or something. Yet the Government cannot identify any statute in which the power to regulate includes the power to tax. The Government concedes, for example, that the Securities and Exchange Commission cannot tax the trading of securities, even though it is expressly authorized to “regulate the trading of . . . securities.”

Kavanaugh, meanwhile, offers this:

Imposing tariffs on imports is clearly a way of controlling imports (Black’s); governing or directing imports according to rule (Webster’s, American Heritage); adjusting imports by rule, method, or established mode (Black’s, American Heritage); or more generally subjecting imports to governing principles or laws (Black’s). So the dictionary definitions amply demonstrate that tariffs are a means to “regulate . . . importation” of foreign imports.

It appears we’ve reached an impasse; the bare text, it turns out, only takes us so far.

Enter the Major Questions Doctrine, which the court’s conservative majority has proposed to use for exactly these cases of non-obvious, non-insane interpretations.

Put most simply, the Major Questions Doctrine says that when a president is trying to do something of vast “economic and political significance” by executive action, he needs to be able to point to “clear congressional authorization” for the action. If a presidential interpretation is passable, but not overwhelmingly obvious, MQD says that the presumption should cut against the president. A tie should go to Congress.

In Learning Resources, the court split 3-3-3 on the Major Questions Doctrine and its application to the case.

• Conservative justices John Roberts, Neil Gorsuch, and Amy Coney Barrett believe in the Major Questions Doctrine and believe that it applies here (i.e., that Trump lacked “clear congressional authorization” for the tariffs), and thus ruled against Trump.

• Liberal justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson don’t believe in the Major Questions Doctrine but believe that Trump lacks authorization for the tariffs as a simple matter of textual analysis, without any need for a tie-breaker, and thus ruled against Trump (but didn’t join the parts of Roberts’ opinion that used MQD analysis).

• Conservative justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh believe in the Major Questions Doctrine but don’t believe it applies here (i.e., that IEEPA passes the test of having given Trump “clear congressional authorization” for the tariffs, and also that MQD shouldn’t be used in foreign affairs cases), and thus ruled in Trump’s favor.

This yields some interesting alliances. Six justices believe in MQD, and six struck down the tariffs, but they are two different groups, because three of the pro-MQD justices thought that the tariffs pass the MQD test, while three of the anti-MQD justices thought the tariffs should be struck down even without the doctrine.

To make things even more confusing, Barrett wrote a separate concurrence basically saying that she supports MQD, but that it shouldn’t hold so much weight; that it should be less of a hard-and-fast rule of thumb (when it’s unclear from a statute whether a certain power has been delegated to the president or been reserved by Congress, always err on the side of Congress) and more of a general guide.

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Of the seven opinions produced by the court in Learning Resources, the most strident is easily Gorsuch’s.

Over the course of a 45-page concurrence (more than double the length of the Roberts opinion he was concurring with), Gorsuch takes just about everyone on the court to task.

Addressing the liberals, he suggests that Sotomayor, Kagan, and Jackson are hypocrites for upholding Biden-era executive actions but striking down Trump’s. Thanks for agreeing with me about Trump! But then why didn’t you agree with me on Biden?

Addressing the dissenting conservatives, he suggests that Thomas, Alito, and Kavanaugh are hypocrites for striking down Biden-era executive actions but upholding Trump’s. Thanks for agreeing with me about Biden! But then why don’t you agree with me on Trump?

And he even devotes several pages to yelling at Barrett — one of his two colleagues who actually did agree with him on both Biden and Trump — for believing in MQD but not using it as the hard-and-fast rule he wants it to be.

In Gorsuch’s words, the Major Questions Doctrine is an explicitly “pro-Congress” philosophy, actively putting its thumb on the scales for Congress’s ability to decide major political and economic questions, unless it has clearly delegated otherwise.

The court’s foremost congressionalist, Gorsuch concludes his concurrence with a paean to the legislative process. It is worth reading in full:

For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be disappointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason.

Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man.

There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day.

In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.

Congress is the Article I branch, for a reason, Gorsuch seems to say. It is the most deliberative and representative branch, and therefore deserves extra deference, while a branch that reports to one man should receive extra scrutiny.

Kagan, writing a concurrence for herself and the other liberals, agreed that Trump’s tariffs should be struck down, but declined to adopt such a reflexively pro-Congress stance.

She referred to MQD as “the so-called major-questions doctrine,” refusing to recognize the legitimacy of the rule, much less that it should apply here. Describing her process of interpreting statutes that delegate contested amounts of power from Congress to the president, Kagan wrote: “I consider a delegation provision’s language, broaden the scope to take in the statutory setting, and apply some common sense about how Congress normally delegates.”

But no thumb on the scale to help settle a tie. Rebutting Gorsuch’s contention that her method was not sufficiently deferential to the legislature, Kagan insisted that it would instead lend to the role of a neutral arbiter, and would “not always favor (or always disfavor) executive officials, given the variety of delegation schemes Congress adopts.”

Left unexplained was exactly how that method had led Kagan to rule, for example, that “waive or modify” gave Biden the extraordinary power he sought in a declared emergency but “regulate…importation” failed to do the same for Trump. Gorsuch pointed this out, but Kagan declined to respond. “I’ll let Justice Gorsuch relitigate on his own our old debates about other statutes, unrelated to the one before us,” she wrote.

The point is a fair one, though. Kagan is clearly hesitant to adopt MQD as a hard-and-fast rule, possibly for the principled reason that she believes that it tips the scales too far towards Congress (in the past, she has called the doctrine “anti-administrative state”) and possibly for the more partisan reason that she doesn’t want to take her ability to rule in favor of future Democratic presidents off the table.

It makes sense to be hesitant about a rule, which can too inflexibly lock a justice in. But without a pre-declared rule guiding your thinking, Gorsuch suggested, a justice can run the risk of appearing to play favorites, if you claim to simply be going off the text of the statute, but are seemingly always breaking your ties based on a partisan, not institutional, preference.

In her concurrence, Barrett also writes about the follies of using MQD as a reflexively pro-Congress rule, or anything more than an interpretive guide to “ascertain the most natural reading of a statute.” It is not the court’s job to always lean in favor of Congress, she argues:

…[I]f the Constitution permits Congress to give the Executive a particular power, who are we to get in the way? Does the Judiciary really protect the Constitution by impeding the constitutional action of another branch? If Justice Gorsuch thinks that we should forgo the most natural reading of a statute because it is preferable for Congress, rather than the President, to make big decisions, that way lies “a lot of trouble” for the textualist.

Finally, Kavanaugh — writing for himself, Thomas, and Alito — embraces MQD but argues that it should be more deferential to the president in foreign affairs cases (and also that “regulate…importation” encompasses tariff power either way).

“[I]n the foreign affairs context, this Court has interpreted statutes as written,” Kavanaugh wrote, “with respect for the primacy of Congress’s and the President’s roles in foreign affairs and without using the major questions doctrine as a thumb on the scale against the President.”

Again, this could be read as partisan or principled. On one hand, it is true that we prize Congress for being deliberative — but we also want the executive to be energetic (or, at least, so said Hamilton), and nowhere more than in the arena of foreign affairs. The president is the nation’s commander-in-chief, and chief diplomat as well. No one disputes that Congress couldn’t exactly negotiate trade deals with other countries. Perhaps, here, we should give the president a wider berth.

But there’s Gorsuch again, reminding his colleagues of their own past rulings. If vague statutes should be construed in a president’s favor when it comes to foreign affairs, then why did Thomas, Alito, and Kavanaugh rule against Biden in West Virginia v. EPA, when the court struck down a presidential claim of authority on climate change:

In West Virginia, the Court applied the major questions doctrine over a dissent expressing concern that doing so would deny the EPA (and therefore the President) the power to respond to “the most pressing environmental challenge of our time”—“[c]limate chang[e].” A challenge, the dissent continued, that threatened consequences global in scope, including “mass migration events[,] political crises, civil unrest, and even state failure.” Was West Virginia a “foreign affairs” case? How about our major questions cases addressing efforts to combat the global pandemic that was COVID–19 [when the court also ruled against Biden]?

Perhaps, Gorsuch suggests, no exception is better than an exception inconsistently applied.

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The issues raised by Gorsuch’s concurrence may be secondary to the headline news about the tariffs, but they set the table for the coming years of Supreme Court separations-of-powers jurisprudence in an important way.

Will the Supreme Court continue to read executive power cases statute by statute, with justices on the wings ruling for or against a president seemingly based on party — and then aligning with justices in the middle who consistently take a skeptical-of-executive-power view — so that the presidents are normally constrained, but almost by accident?

Or will the court, confronted with enough abuses of executive power, decide to put a “thumb on the scale” for Congress, engaging in a broader attempt to reorient the U.S. government in favor of legislative power?

Gorsuch obviously wants to take the latter path, but neither his conservative nor liberal colleagues are not on board. Barrett, for example, described Gorsuch’s pro-Congress push as a “project” that “may be desirable or even constitutionally inspired,” but is in “significant tension with textualism.” Gorsuch’s approach might be the right one, in line with the court’s role as a constitutional protector (which may mean being most protective of Congress, whose laws are the ones the president’s executive power is supposed to be executing in the first place).

Or it might be an inappropriate project for a justice to take on from the Supreme Court bench. Ultimately, perhaps, the branch to protect Congress has to be Congress itself.

“Congress possesses a variety of tools to limit the President’s tariffs—directly via new legislation or, perhaps more readily, by not approving annual appropriations necessary for the Executive Branch to continue to implement the tariffs,” Kavanaugh wrote in his dissent.

Of course, it’s not that simple, both because a president might cow a Congress of his party into supporting his agenda (imagine that!) and because, even a Congress where a majority opposes certain tariff actions — like, well, this one — might not be able to force its will without a two-thirds, veto-proof majority, as Gorsuch pointed out. Although, of course, that still doesn’t mean it’s necessarily the Supreme Court’s place to pick a favored branch.

The ultimate answer in this dispute matters because presidents will keep building sandcastles. Presidents will keep trying to expand executive power; to ensure they’re stopped consistently when they go too far, either the Supreme Court will have to adopt a pro-Congress view … or Congress will.

The court will have many opportunities to think through these issues, as they have many more cases on Trump’s executive actions still to hear, and then surely there will be cases from the next president as well, and the next one and the next one — right up until Congress takes the hints Gorsuch was giving it, and tries to do some legislating itself, if they ever will.

There may even be more tariff sandcastles to come. In response to the “supreme court” ruling — Trump announced this morning that he will only be using lower-case letters to refer to the court from now on, a blow the justices will surely have difficulty recovering from — the president excoriated the court, and also announced that he would be imposing new 10%, then 15%, global tariffs.

I have seen some people suggesting that this should be understood as Trump defying the Supreme Court, but presidents responding to legal losses by looking for new statutory means to achieve a similar task is very normal. After the court ruled against Biden’s student loans plan, he did the same.

The court ruled that Trump could not impose tariffs under IEEPA, not that he could not impose tariffs at all. Whether the new tariffs are legal is another question — and the answer may be even more complicated than the IEEPA case. For his new tariffs, Trump is using Section 122 of the Trade Act of 1974, which allows the president to impose import taxes to “deal with large and serious United States balance-of-payments deficits.”

“A balance of payments deficit is not the same thing as a trade deficit. You cannot have a balance of payments if you have a flexible exchange rate, as the US currently does,” economist Peter Berezin has written, summarizing the views of other experts who do not believe Section 122 can currently be used because the U.S. does not currently face the circumstances required by the law.

Once legal challenges to the 15% tariffs start springing up, the court will be stuck with a Humpty Dumpty question — whether a circumstance exists simply because the president says it does — another opportunity to consider how much deference to give the president vs. Congress on uncertain statutory questions. (The court declined to answer the Humpty Dumpty question in the IEEPA case, dodging the question of whether a true national emergency under IEEPA existed by saying that IEEPA doesn’t allow tariffs, emergency or not.)

Trump’s most sweeping assertion of tariff power might be dead, but the shifting separations-of-powers alliances and disputes on the Supreme Court will very much remain a live dynamic.