WASHINGTON, Nov 6 (Reuters) – After the U.S. Supreme Court used a conservative legal principle called the “major questions” doctrine to blow holes in Democratic former President Joe Biden’s agenda, will Republican President Donald Trump‘s sweeping tariffs suffer the same fate?
That is a key question as the court decides the legality of tariffs that are central to Trump’s economic policy and how he deals with the rest of the world. The court heard arguments in the case on Wednesday, and the major questions doctrine was a focal point as the justices questioned the lawyers representing the Trump administration and the parties who have challenged the tariffs as an overreach of presidential power.
The court has a 6-3 conservative majority. Its conservative justices in recent years have embraced this doctrine, which requires executive branch actions of “vast economic and political significance” to be clearly authorized by Congress.
BIDEN’S POLICIES
The court cited the doctrine to stymie Biden’s plan to cancel $430 billion in student debt, block his COVID-19 vaccination-or-testing mandate for large businesses, undo his policy shielding cash-strapped renters from eviction during the pandemic and roll back the Environmental Protection Agency’s authority to regulate carbon pollution from power plants.
In the tariffs case, it remains to be seen how the court rules and whether the major questions doctrine will guide its decision. But most of the justices signaled at least some concerns about the legality of Trump’s imposition of the tariffs under a 1977 law meant for use in national emergencies.
Congress passed the International Emergency Economic Powers Act, or IEEPA, to enhance the president’s powers during a national emergency. While the statute authorizes a president to regulate importation, it does not contain the word tariff. Prior to Trump, no president had used IEEPA to impose tariffs.
U.S. Solicitor General D. John Sauer, representing Trump’s administration, faced resistance when he suggested during the arguments that the major questions doctrine should not apply to Trump’s tariffs, citing presidential authority in the realm of foreign affairs.
“I mean, it seems that it might be directly applicable,” conservative Chief Justice John Roberts told Sauer, referring to the doctrine.
“The justification is being used for a power to impose tariffs on any product, from any country, in any amount, for any length of time,” Roberts added. “I’m not suggesting it’s not there, but it does seem like that’s major authority, and the basis for that claim seems to be a misfit.”
Conservative and liberal justices alike sharply questioned U.S. Solicitor General D. John Sauer, who defended the legal rationale employed to impose the tariffs.
‘AN EMBARRASSMENT’
The court runs the risk of appearing deeply partisan if it declines to scrutinize Trump’s tariffs under this doctrine, according to Corey Brettschneider, a Brown University professor who teaches courses on constitutional law.
“They used it to constrain Biden, so why would they not use it here?” Brettschneider asked. “That would be an embarrassment for the court.”
Among the six conservative justices, Roberts appeared the most clearly inclined to rule against Trump’s tariffs based on the major questions doctrine. Conservative Justices Neil Gorsuch and Amy Coney Barrett, along with the court’s three liberal members, also appeared dubious of the legal soundness of Trump’s tariffs.
Albany Law School professor Raymond Brescia said that ambiguity around IEEPA’s scope should prompt the court to apply the major questions doctrine, just as it did in Biden’s student loan case, and strike down Trump’s tariffs.
