A legal doctrine popularized by conservatives on the Supreme Court to constrain the reach of regulatory agencies is now being brandished by opponents of President Trump to challenge his seemingly boundless claims of presidential power.
It is quite a turnaround.
In the hands of the conservative justices, the so-called major questions doctrine was used to strike down the Biden administration’s student loan forgiveness program and to limit the Environmental Protection Agency’s ability to regulate greenhouse gas emissions.
The doctrine, a particularly potent brand of judge-made law that coalesced in Supreme Court rulings in recent years, requires the government to point to a “clear congressional authorization” when it makes decisions of great “economic and political significance.”
Now, as the saying goes, what goes around, comes around. And it is not likely to be good for Mr. Trump.
One of the most recent challenges against the Trump administration was brought by a conservative legal group, the New Civil Liberties Alliance, against the president’s economy-rattling tariffs. Because the tariffs present a matter of “vast economic and political significance,” the group argues in its lawsuit, the major questions doctrine requires the president to show that the law he invoked “clearly authorizes” the tariffs. “The president cannot make that showing,” the group asserts on behalf of a Florida stationery retailer.
A surprising number of conservative thinkers have signaled support for this argument. Their goal may be to rescue Mr. Trump from a self-destructive policy choice. But the legal argument they are advancing would also undo much of his first three months in office. For like his tariffs, Mr. Trump’s attempts to freeze federal funding, revoke birthright citizenship, interfere with states’ administration of their elections and slash the government using the so-called Department of Government Efficiency are all issues of major national significance that Congress has not clearly authorized the president to decide.
Many lawsuits raising these exact arguments are now pending in federal courts around the country. Here, for example, is the major questions doctrine at work in a lawsuit brought by Santa Clara County in California challenging Mr. Trump’s attempt to revoke birthright citizenship for children born in the United States of undocumented immigrants: Under the major questions doctrine, the county argues, “it is untenable to read” federal immigration law as “granting the president the authority” to revoke birthright citizenship.
Here is the doctrine being wielded again in a brief filed by 14 states challenging the sweeping actions taken by Elon Musk and DOGE: On the question of whether Mr. Musk or DOGE has clear congressional authority to take “major economic, political and social” actions to dismantle the federal government, the states argue: “The answer is a resounding no. Defendants do not even attempt to suggest otherwise.”
The doctrine is front and center, as well, in a legal challenge by the National Council of Nonprofits and other groups to the president’s attempt to unilaterally freeze federal funding. And it is also prominent in a lawsuit brought by 23 states and Washington D.C. over the president’s abrupt decision to cancel billions in funding for public health measures such as childhood vaccines.
In all of these cases — and many others — litigants are seizing on the major questions doctrine in an effort to rein in Mr. Trump’s boldest assertions of authority.
There is a deep irony here. The Supreme Court deployed the major questions doctrine to block broad invocations of presidential power by President Joe Biden. The conservative justices did so to surmount a big obstacle: Each of those actions was permissible under existing legal doctrine that gave government agencies broad discretion in how they would carry out congressional mandates.
Liberals castigated the court for inventing the major questions doctrine, which appears nowhere in the Constitution or any federal statute, yet still operated as a “heavyweight thumb,” as Justice Elena Kagan put it, against the Biden administration.
Now the tables have been turned.
Mr. Trump, like Mr. Biden before him, seeks to take decisive action on major questions while Congress sits on the sidelines. So the doctrine should be equally applicable.
There is no guarantee, of course, that the conservative justices will play fair now. Perhaps the major questions doctrine truly was meant to be a one-way ratchet, good for striking down Democratic presidential action but dormant during Republican presidencies. That would be a shame — and a further black mark on the legitimacy of an already embattled court.
But there is a chance the major questions doctrine, even if dubious at the outset, could be used for noble ends. That is because it has the potential to forge a surprising consensus among the court’s liberal and conservative justices.
The conservative justices may well be sympathetic to the merits of Mr. Trump’s aggressive efforts to cut down government, redefine citizenship and limit voting rights. The thrust of the major questions doctrine, though, is that even if the president were right on the substance, these are all major issues that Congress ought to decide given its role as our nation’s constitutionally ordained lawmaking institution.
The conservative justices could accordingly rule against Mr. Trump not because they disagree with his policy choices, but rather because they believe the Republican-controlled Congress ought to be the one making them. Rulings like that are laudable because they leave options available to the losing side — in this case, to pursue the administration’s goals through the usual legislative process.
In the end, it is rarely a good bet to hope for salvation from wonky, judge-made rules of questionable legal origins. But at a time when our constitutional order faces immense pressure and uncertainty, we should take what we can get. And presidential restraint in the name of the major questions doctrine would be better than no restraint at all.
Aaron Tang (@AaronTangLaw) is a professor at the University of California, Davis, law school and former law clerk to Justice Sonia Sotomayor. He is the author of “Supreme Hubris: How Overconfidence Is Destroying the Court — and How We Can Fix It.”
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