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21 Apr 25
WYmIaaXJEgIn 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 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. -
20 Apr 25
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