U.S. Supreme Court Chief Justice Roberts at the University of Kentucky's Rosenberg College of Law in July 2022

During former President Joe Biden's four years in the White House, the U.S. Supreme Court's GOP-appointed 6-3 supermajority relied heavily on the "major questions doctrine" — which, in essence, says that decisions by the federal government's executive branch require clear, explicit authorization from Congress if they create major economic or political changes. And more than once, the Republican justices argued that Biden overreached with executive orders that lacked approval from the federal government's legislative branch.

But since Donald Trump's return to the White House nine months ago, many of his critics — a combination of Democrats and right-wing Never Trump conservatives — have argued that his executive orders blatantly disregard Congress' constitutional role in the United States' system of checks and balances.

In an article published on October 27, New York Times legal reporter Adam Liptak examines the role that the "major questions" doctrine could have when the High Court rules on Trump's steep new tariffs — which he is imposing by executive order, not bills in Congress.

"The Supreme Court used the 'major questions doctrine' to reject much of the Biden Administration's agenda, including its efforts to address climate change, the COVID-19 pandemic and student debt," Liptak explains. "The Court's commitment to the doctrine will be tested next week when it hears arguments about President Trump's tariffs program. The doctrine requires Congress to use plain and direct language to authorize sweeping economic actions by the executive branch. The 1977 law that Mr. Trump is relying on, the International Emergency Economic Powers Act, might seem to fail that test, as it does not feature the word 'tariffs' or similar terms like 'duties,' 'customs,' 'taxes' or 'imposts.'"

The legal journalist continues, "Nor is there any question that the tariffs will have vast economic consequences, measured in the trillions of dollars. The sums involved are far larger than the roughly $500 billion at issue in President Joseph R. Biden Jr.'s student loan forgiveness program, which Chief Justice John G. Roberts Jr., writing for the majority, called 'staggering by any measure.'"

Liptak notes that although the High Court didn't actually use the words "major questions" in a major opinion until 2022, the late Justice Antonin Scalia embraced the idea when he said that Congress does not "hide elephants in mouseholes."

"There is some reason to think the doctrine may disappear in the tariffs case," according to Liptak. "In a concurring opinion in June in an unrelated case, Justice Brett M. Kavanaugh proposed a distinction that could lay the groundwork for a decision in Mr. Trump's favor in the tariffs case. 'The major questions canon has not been applied by this court in the national security or foreign policy contexts,' he wrote, adding: 'The usual understanding is that Congress intends to give the president substantial authority and flexibility to protect America and the American people.'"

Read Adam Liptak's full New York Times article at this link.