In Tariffs Dissent, Clarence Thomas Embraced a Dangerous Theory of Executive Power

The conservative justice’s regrettable opinion in Learning Resources v. Trump.

When the U.S. Supreme Court heard oral arguments in Learning Resources v. Trump, Justice Neil Gorsuch highlighted a particularly troubling aspect of President Donald Trump's case for unilateral tariff-making power. Under the administration's legal theory, Gorsuch asked Solicitor General John Sauer, "what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war, to the president?"

Thankfully, Trump lost. But one of the three justices who supported Trump in dissent declared himself perfectly content with the dangerous idea that Congress could entirely surrender constitutionally granted powers to the president.

As he has often done before, Justice Clarence Thomas penned a solo dissent in Learning Resources v. Trump that staked out a legal position far beyond anything embraced by his other colleagues. In the tariffs case, that far-out position was the argument that Congress "has many powers that are not subject to the nondelegation doctrine."

The nondelegation doctrine says that Congress may delegate its legislative authority to the president only under certain limited circumstances. Those limits are there to enforce the constitutional separation of powers.

Thomas would eliminate many of those limits. In his view, the nondelegation doctrine simply should not apply when a case involves what he characterizes as a non-core legislative power. What is a non-core legislative power? Thomas offered a few examples, including "the powers to raise and support armies" and "to regulate foreign commerce." According to Thomas, because these powers originally descended from the kingly authority of the British crown, it is entirely proper for Congress to surrender them without limit to the executive branch.

One problem with this argument is that it runs counter to the text of the Constitution. Article I, Section 1, says that "all legislative Powers herein granted shall be vested in a Congress of the United States." Article I, Section 8, then lists the various "legislative Powers herein granted"; that list includes the powers "to raise and support armies" and "regulate Commerce with foreign Nations." As Justice Gorsuch pointed out in his Learning Resources concurrence, there is nothing in Article I that "speaks of some divide between true legislative powers" and "'other kinds of power[s]' that may be given away and possibly lost forever to the President."

Similarly, Thomas asserted that "the power to regulate external affairs" is not a "core legislative power" and therefore should not be subjected to the limits imposed by the nondelegation doctrine. Yet Article I, Section 8, contains several "legislative Powers herein granted" that clearly involve the regulation of external (meaning, foreign) affairs, such as the aforementioned authority to "regulate Commerce with foreign Nations" as well as the authority "to declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

Let's assume, for the sake of argument, that the various legislative powers that Thomas wants to exempt from the nondelegation doctrine did descend from kingly sources and thus possess a kind of executive pedigree. So what? The framers of the Constitution still placed them in Article I, which is where the legislative power is vested in our system. What the framers specifically did not do was to place such powers in Article II, which is where the president's limited and enumerated powers are spelled out. There are, after all, supposed to be some differences between the authority of a British monarch and the authority of a U.S. president.

This is all pretty disappointing stuff from Thomas. Perhaps the one good thing to be said about his dissent is that its attempted end run around the separation of powers failed to attract any other votes.