The Supreme Court will soon consider whether a legal theory that defeated one of the nation’s most significant climate rules should also be wielded against one of President Donald Trump’s most sweeping economic policies.
Wednesday’s oral argument over Trump’s plan to collect tariffs on imported goods like steel and aluminum could reveal the court’s inclination to place guardrails on the newly named major questions doctrine as some conservative legal thinkers make the case for exemptions that favor the current administration.
Lawyers who said in 2022 in West Virginia v. EPA that the major questions doctrine — which requires Congress to clearly authorize agency action on politically and economically important matters — invalidated EPA’s Clean Power Plan are arguing in the tariff case that the doctrine does not apply to foreign policy or actions by a president.
“Indeed, this Court’s leading case on the issue indicates a threshold requirement that ‘the statute at issue … confers authority upon an administrative agency,’” wrote attorneys with the conservative law firm Boyden Gray and the Trump-allied America First Legal Foundation in an amicus brief in the tariff case, pointing the justices back to West Virginia.
“There is good reason to doubt that the same skepticism applies to statutory grants of power directly to the President,” they continued, “given that he is a branch of government unto himself, rather than an unelected agency bureaucrat, as in the West Virginia case.”
Critics of Trump’s tariffs will argue Wednesday that the president unlawfully invoked the International Emergency Economic Powers Act, or IEEPA, to tax foreign-made goods. Prior presidents have used the 1977 law to impose economic sanctions and other penalties on foreign nations, but the law makes no mention of tariffs.
Administrative law scholars are calling on the Supreme Court to use the tariff case to reject exemptions that they said would undermine the major questions doctrine, which the high court first used by name in West Virginia — but has since offered few guidelines on the scope of its application.
“The major questions doctrine has generated substantial confusion in the lower courts,” wrote lawyers for the New York University School of Law’s Institute for Policy Integrity in an amicus brief arguing against Trump’s tariffs. “This case presents a prime opportunity for the Court to clear up the confusion.”
The institute’s brief details inconsistent applications of major questions in challenges against both the Biden and Trump administrations and notes the danger of overusing the doctrine.
“If the Supreme Court is able to even-handedly apply it, over time, the doctrine will develop in a more sound way,” said Don Goodson, executive director of the institute.
The institute’s brief argues that the Supreme Court’s existing case law already provides the framework the justices should apply when using the major questions doctrine. They said it should be used only when a government action is unheralded, transformative and politically and economically significant.
“Inconsistent and unprincipled application of the major questions doctrine also risks applying the doctrine well beyond the extraordinary case,” the institute’s brief said, pointing to a 2022 ruling that invoked the doctrine against a Trump-era adjustment to Medicare reimbursements that resulted in a cut of only $3.8 million to challengers in the case.
But Trump’s tariffs, which a recent S&P Global analysis found could cost companies worldwide $1.2 trillion this year, are a perfect example of an action that should be nixed under the major questions doctrine, Goodson said.
“If this doesn’t meet the Supreme Court’s test,” he said, “it’s unclear what would.”
Rewriting the rules of rulemaking
Administrative law, or the set of principles that govern federal rulemaking, is designed to keep executive decision-making in check — regardless of who resides in the White House.
But the rise of the major questions doctrine and the termination last year of Chevron deference — which for 40 years had given agencies the benefit of the doubt in legal battles over federal rules — has stoked concerns that administrative law challenges are now more vulnerable than ever to the ideological whims of the judges who decide those cases.
“The threshold problem with the major questions doctrine is it’s just such an amorphous doctrine,” said James Goodwin, policy director at the Center for Progressive Reform. “It basically invites judicial creativity and ends oriented judicial decision-making.”
There is even an emerging argument in conservative legal circles that theories like the major questions doctrine apply only to regulatory efforts but not deregulatory actions that are more often pursued by Republican presidents.
“We’ve traditionally seen a lot of abuse in the major questions doctrine area by the political left and the legal left because there’s been a longer stretch of thinking, dating back to the Obama administration, that if Congress is not going to get things done, how can we get things done? Through the presidency,” said Joe Luppino-Esposito, federal policy director at the property rights-focused Pacific Legal Foundation.
(The Pacific Legal Foundation has filed an amicus brief arguing against Trump’s tariffs on the ground that IEEPA unlawfully transfers legislative power to the president.)
Kristin Hickman, an administrative law scholar at the University of Minnesota, said that while she doesn’t necessarily agree that administrative procedure favors deregulation over regulation, efforts to ax rules may be less likely to draw major questions challenges.
“Deregulatory action as a matter of statutory interpretation is probably less likely to run into arguments that an agency or an administration is pushing the envelope,” she said.
Unanswered questions
The legal battle over Trump’s tariffs doesn’t break perfectly along ideological lines — even some Republicans have said that taxing imports could hurt the U.S. economy.
In some respects, that could make the tariffs the perfect test case for the scope of the major questions doctrine, said Luppino-Esposito.
“It has crossed political lines and is more of a legal question,” he said.
A major questions doctrine ruling against Trump’s tariffs could also provide some cover for a conservative-dominated Supreme Court that has come under scrutiny for political favoritism, said Goodwin of the Center for Progressive Reform.
“This gives John Roberts in particular a chance to say, ‘This is us doing balls and strikes,’” Goodwin said, referring to the chief justice’s famous quip at his 2005 confirmation hearing where he assured Congress he was coming to the role without a political agenda. “Institutionally, the Supreme Court gets a lot out of applying the major questions doctrine to the tariffs.”
Still, the justices may want — or need — to reach as limited a ruling as possible, said Luppino-Esposito.
“You still will end up with a lot of questions unanswered, ultimately,” he said. “There will be other questions that will arise to try to further develop that doctrine.”
Arguments begin 10 a.m. EST Wednesday. A ruling is expected no later than early summer.
