Does anyone remember “major questions doctrine”?

I don’t think it requires any fancy doctrine of statutory construction to hold that most or all of Trump’s tariffs are beyond the authority granted by Congress — they’re not an emergency security measure and aren’t even really pretending to be. But under the Roberts Court’s own doctrines, ruling them ultra vires should be the easiest call in the world. Alas, I am skeptical that there will be 5 votes for a conservative jurisprudence distinct from “what Trump wants”:

An interesting test case will be the upcoming legal battle over Trump’s tariff policy. Setting tariffs is not an inherent constitutional power of the presidency — the power to set tariffs was delegated to the president by Congress through the International Emergency Economic Powers Act. But the act allows the president to impose tariffs only in cases of an “unusual and extraordinary threat” to “national security, foreign policy, or the economy of the United States.” It is far from obvious that tariffs applied to a wide range of countries for the purpose of restricting the international economic order — and subject to major sudden revision — are authorized by the statute’s language.

Moreover, in the 2023 case Biden v. Nebraska, the Court struck down the Biden administration’s student loan reduction program despite explicit statutory authority to “waive or modify” student loans under the theory that Congress would not leave “major questions” for the executive branch to decide when delegating power.

Critics, including myself, charge that the “major questions” doctrine is just an ad hoc means for the court to ignore statutory language and override a president if it doesn’t like the policy results. But if we take the court at its word, it would be hard to think of a question more “major” than tariffs intended to reorder the international trading system and capable of vaporizing trillions of dollars of market value in 48 hours. In Barrett’s concurring opinion in Biden v. Nebraska, she offered a thoughtful and comprehensive (if still unpersuasive) defense of the doctrine. The challenge to Trump’s tariff policy will be a good test of whether the “major questions” doctrine represents a real restraint on executive power, or whether its detractors were right.

And the court faces a similar test with respect to Trump’s detainment and removal of immigrants. Is the due process being at least theoretically offered by the court real, or will it just be a fig leaf putting a legal veneer on decisions to send immigrants to foreign slave prisons without a fair hearing? The answer may depend in part on the ability of Barrett to convince at least one other Republican-nominated justice that conservative jurisprudence does not require consistent acquiescence to President Trump.

Our best hope is probably someone convincing John Roberts to spend some time with the generic congressional polling.