The Supreme Court’s “major questions” doctrine (MQD) requires Congress to “speak clearly” when authorizing the executive to make “decisions of vast economic and political significance.” If the statute isn’t clear, courts must reject the executive’s assertion of power. But the Trump Administration, like the Biden Administration before it, argues that the doctrine does not apply to assertions of power by the President, only those by lower-level executive branch officials, such as leaders of administrative agencies.
This issue came up in several cases challenging executive actions by President Biden, and it has arisen again in the lawsuit challenging Trump’s massive IEEPA tariffs filed by the Liberty Justice Center and myself, on behalf five small businesses.
For reasons outlined in my Lawfare article about the tariffs, I think it’s obvious that Trump’s actions run afoul of MQD:
If there is any ambiguity over the meaning of IEEPA, courts should resolve it against the government by applying the major questions doctrine. Since 2021, the Supreme Court has invalidated several presidential initiatives under that rule,… Examples include cases invalidating President Biden’s massive student loan forgiveness program, a coronavirus vaccination mandate imposed on workers employed by firms with 100 or more employers, and a pandemic-era nationwide eviction moratorium imposed by the first Trump administration and later extended by Biden.
If Trump’s sweeping use of IEEPA to start the biggest trade war in a century is not a major question, it is hard to say what is. The magnitude of the Liberation Day tariffs exceeds that of most of the other measures declared major questions by the Supreme Court…. The nonpartisan Tax Foundation estimates that Trump’s IEEPA tariffs will impose some $1.4 to 2.2 trillion in tax increases on Americans, over the next decade. That makes even President Biden’s dubious $400 billion student loan forgiveness plan (which the Supreme Court rightly invalidated under the major questions doctrine) seem modest by comparison.
In sum, it is difficult to deny that Trump’s invocation of IEEPA to impose the Liberation Day tariffs raises a major question. And if it does, courts should use the major questions doctrine to invalidate it. To understate the point, it is far from clear that IEEPA authorizes the use of tariffs, that trade deficits are an “emergency,” or that there is any “unusual and extraordinary threat.” If any of these three preconditions is not clearly met, then the major questions doctrine requires the courts to strike down Trump’s tariffs.
The administration, however, argues that MQD just doesn’t apply to the president at all! If so, that might shield not only the tariffs but many other presidential power grabs from judicial scrutiny. Under Biden, MQD was decried by some as a tool invented by conservatives to stymie left-wing policies. But, under Trump, progressives have every reason to make use of it themselves. More generally, it’s a valuable resource to protect against excessive delegation of power, and enforce the common-sense textualist rule of interpretation that a grant of major authority requires clearer authorization than one that delegates only some minor power.
The claim that presidential actions are exempt from MQD has already been rejected by at least three federal courts of appeals, the Fifth, Sixth, and Eleventh Circuits. See Louisiana v. Biden, 55 F.4th 1017, 1031 n.40 (5th Cir. 2022) (“delegations to the President and delegations to an agency should be treated the same under the major questions doctrine”) ; Georgia v. President of the U.S., 46 F.4th 1283, 1295–96 (11th Cir. 2022) (holding that an assertion of power by the President under the Procurement Act is “no exception” to application of MQD); Kentucky v. Biden, 23 F.4th 585, 606–08 (6th Cir. 2022) (applying MQD to a presidential directive). The Ninth Circuit went the other way in a decision that was later vacated as moot, and thus has no precedential value. Mayes v. Biden, 67 F.4th 921, 932–34 (9th Cir. 2023), vacated as moot, 89 F.4th 1186 (9th Cir. 2023). In a more recent ruling, Nebraska v. Su, the Ninth Circuit did apply MQD to a presidential action, but held that the policy did not run afoul of the doctrine because it wasn’t a “transformative expansion” of executive authority.
Nebraska v. Su is also notable because it includes an excellent concurring opinion by Judge Ryan Nelson – a conservative Trump appointee – explaining why MQD applies to the president, not just administrative agencies:
The Supreme Court has never suggested that the President is exempt from major questions analysis. And it makes little sense to think that he is. Broad legislative delegations to the Executive Branch—whether to the President or to administrative agencies—are inherently suspect….
Much ink has been spilled on the “source and status” of the major questions doctrine. Biden v. Nebraska, 143 S. Ct. 2355, 2376 (2023) (Barrett, J., concurring). Some view the doctrine as a substantive canon rooted in non-delegation principles. See Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., delegation doctrine are both “designed to protect the
separation of powers”). Others understand the doctrine as a linguistic canon—”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.'” Nebraska, 143 S. Ct. at 2378 (Barrett, J., concurring)… Regardless of its source, the major questions doctrine does not yield because Congress delegated authority to the President and not an agency.Let’s assume major questions is fundamentally a separation of powers doctrine. On that view, the doctrine keeps Congress in its constitutional lane, preventing it from
delegating “fundamental policy decisions” to the Executive Branch. Indus. Union Dep’t, AFL-CIO v. Am. Petrol. Inst., 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring in the
judgment)… It makes no difference which Executive Branch officer has received an unlawful delegation: the “entire ‘executive Power’ belongs to the President alone.” Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 213 (2020)….Indeed, a unitary executive is entrenched in our constitutional structure. The Founders envisioned a system in which the executive power is concentrated in a single President who does not make the laws, but executes them…. The Supreme Court’s major
questions cases recognize that basic premise….Distinguishing between presidential and agency delegations also ignores the realities of administrative decision-making. The President is likely to be closely involved in major policies, even if they are ultimately promulgated by an agency….
Now assume the major questions doctrine operates as a linguistic canon that “situates text in context.” Nebraska, 143 S. Ct. at 2378 (Barrett, J., concurring). Here, it would
be even stranger to treat the President differently. We regularly interpret statutory grants of authority. In so doing, we recognize that Congress does not “hide elephants in
mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)… Why would our normal interpretive process turn on the identity of the Executive Branch officer to whom Congress delegated power? An implausible reading of a statute is no less implausible when that statute confers authority on the President versus an agency.
Notice, as Judge Nelson points out, that the distinction between presidential and agency actions is particularly indefensible under the “unitary executive” theory endorsed by many conservatives, including the Trump administration (I myself have reservations about it). Under that approach, agencies are just extensions of the president’s power, and are totally subordinated to him. Any delegation of power to an agency is is really a delegation to the president, as agency officials are ultimately there to do his bidding.
Judge Nelson goes on to explain why “political accountability” concerns don’t justify treating supposed delegations to the president differently from those to agencies. Given extensive presidential control over agencies, the latter are subject to accountability through him.
I would add that they also face accountability through congressional action. Congress can legislate to curb the power of agencies that anger public opinion. Indeed, agencies actually face greater congressional constraints than the president, because Congress can adopt legislation abolishing an agency entirely, whereas it cannot do the same to the president. Removal of the president through impeachment is much more difficult than ordinary legislation curbing agency power.
Voter ignorance or partisan bias might lead the public to overlook problematic agency policies. But the same is true of those enacted by presidents.
In sum, there is every reason to apply the major questions doctrine to presidential actions no less than those of agencies. The Big Boss must be kept on a tight constitutional leash no less than his subordinates.
The post Why the Major Questions Doctrine Applies to the President, Not Just Executive Agencies appeared first on Reason.com.
