Why the Major Questions Doctrine Applies to the President, Not Just Executive Agencies

This is a key issue in cases seeking to limit executive branch power grabs, including Trump's tariffs. Judge Ryan Nelson (a conservative Trump appointee) explains why the president is not exempt from the doctrine.

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The Supreme Court's "major questions" doctrine (MQD)  requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." If the statute isn't clear, courts must reject the executive's assertion of power. But the Trump Administration, like the Biden Administration before it, argues that the doctrine does not apply to assertions of power by the President, only those by lower-level executive branch officials, such as leaders of administrative agencies.

This issue came up in several cases challenging executive actions by President Biden, and it has arisen again in the lawsuit challenging Trump's massive IEEPA tariffs filed by the Liberty Justice Center and myself, on behalf five small businesses.

For reasons outlined in my Lawfare article about the tariffs, I think it's obvious that Trump's actions run afoul of MQD:

If there is any ambiguity over the meaning of IEEPA, courts should resolve it against the government by applying the major questions doctrine. Since 2021, the Supreme Court has invalidated several presidential initiatives under that rule,… Examples include cases invalidating President Biden's massive student loan forgiveness program, a coronavirus vaccination mandate imposed on workers employed by firms with 100 or more employers, and a pandemic-era nationwide eviction moratorium imposed by the first Trump administration and later extended by Biden.

If Trump's sweeping use of IEEPA to start the biggest trade war in a century is not a major question, it is hard to say what is. The magnitude of the Liberation Day tariffs exceeds that of most of the other measures declared major questions by the Supreme Court…. The nonpartisan Tax Foundation estimates that Trump's IEEPA tariffs will impose some $1.4 to 2.2 trillion in tax increases on Americans, over the next decade. That makes even President Biden's dubious $400 billion student loan forgiveness plan (which the Supreme Court rightly invalidated under the major questions doctrine) seem modest by comparison.

In sum, it is difficult to deny that Trump's invocation of IEEPA to impose the Liberation Day tariffs raises a major question. And if it does, courts should use the major questions doctrine to invalidate it. To understate the point, it is far from clear that IEEPA authorizes the use of tariffs, that trade deficits are an "emergency," or that there is any "unusual and extraordinary threat." If any of these three preconditions is not clearly met, then the major questions doctrine requires the courts to strike down Trump's tariffs.

The administration, however, argues that MQD just doesn't apply to the president at all! If so, that might shield not only the tariffs but many other presidential power grabs from judicial scrutiny. Under Biden, MQD was decried by some as a tool invented by conservatives to stymie left-wing policies. But, under Trump, progressives have every reason to make use of it themselves. More generally, it's a valuable resource to protect against excessive delegation of power, and enforce the common-sense textualist rule of interpretation that a grant of major authority requires clearer authorization than one that delegates only some minor power.

The claim that presidential actions are exempt from MQD has already been rejected by at least three federal courts of appeals, the Fifth, Sixth, and Eleventh Circuits. See Louisiana v. Biden, 55 F.4th 1017, 1031 n.40 (5th Cir. 2022) ("delegations to the President and delegations to an agency should be treated the same under the major questions doctrine") ; Georgia v. President of the U.S., 46 F.4th 1283, 1295–96 (11th Cir. 2022) (holding that an assertion of power by the President under the Procurement Act is "no exception" to application of MQD); Kentucky v. Biden, 23 F.4th 585, 606–08 (6th Cir. 2022) (applying MQD to a presidential directive). The Ninth Circuit went the other way in a decision that was later vacated as moot, and thus has no precedential value. Mayes v. Biden, 67 F.4th 921, 932–34 (9th Cir. 2023), vacated as moot, 89 F.4th 1186 (9th Cir. 2023). In a more recent ruling, Nebraska v. Su, the Ninth Circuit did apply MQD to a presidential action, but held that the policy did not run afoul of the doctrine because it wasn't a "transformative expansion" of executive authority.

Nebraska v. Su is also notable because it includes an excellent concurring opinion by Judge Ryan Nelson - a conservative Trump appointee - explaining why MQD applies to the president, not just administrative agencies:

The Supreme Court has never suggested that the President is exempt from major questions analysis. And it makes little sense to think that he is. Broad legislative delegations to the Executive Branch—whether to the President or to administrative agencies—are inherently suspect….

Much ink has been spilled on the "source and status" of the major questions doctrine. Biden v. Nebraska, 143 S. Ct. 2355, 2376 (2023) (Barrett, J., concurring). Some view the doctrine as a substantive canon rooted in non-delegation principles. See Nat'l Fed'n of Indep. Bus. v. Dep't of Lab., delegation doctrine are both "designed to protect the
separation of powers"). Others understand the doctrine as a linguistic canon—"an interpretive tool reflecting 'common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.'" Nebraska, 143 S. Ct. at 2378 (Barrett, J., concurring)…  Regardless of its source, the major questions doctrine does not yield because Congress delegated authority to the President and not an agency.

Let's assume major questions is fundamentally a separation of powers doctrine. On that view, the doctrine keeps Congress in its constitutional lane, preventing it from
delegating "fundamental policy decisions" to the Executive Branch. Indus. Union Dep't, AFL-CIO v. Am. Petrol. Inst., 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring in the
judgment)… It makes no difference which Executive Branch officer has received an unlawful delegation: the "entire 'executive Power' belongs to the President alone." Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 213 (2020)….

Indeed, a unitary executive is entrenched in our constitutional structure. The Founders envisioned a system in which the executive power is concentrated in a single President who does not make the laws, but executes them…. The Supreme Court's major
questions cases recognize that basic premise….

Distinguishing between presidential and agency delegations also ignores the realities of administrative decision-making. The President is likely to be closely involved in major policies, even if they are ultimately promulgated by an agency….

Now assume the major questions doctrine operates as a linguistic canon that "situates text in context." Nebraska, 143 S. Ct. at 2378 (Barrett, J., concurring). Here, it would
be even stranger to treat the President differently. We regularly interpret statutory grants of authority. In so doing, we recognize that Congress does not "hide elephants in
mouseholes." Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001)… Why would our normal interpretive process turn on the identity of the Executive Branch officer to whom Congress delegated power? An implausible reading of a statute is no less implausible when that statute confers authority on the President versus an agency.

Notice, as Judge Nelson points out, that the distinction between presidential and agency actions is particularly indefensible under the "unitary executive" theory endorsed by many conservatives, including the Trump administration (I myself have reservations about it). Under that approach, agencies are just extensions of the president's power, and are totally subordinated to him. Any delegation of power to an agency is is really a delegation to the president, as agency officials are ultimately there to do his bidding.

Judge Nelson goes on to explain why "political accountability" concerns don't justify treating supposed delegations to the president differently from those to agencies. Given extensive presidential control over agencies, the latter are subject to accountability through him.

I would add that they also face accountability through congressional action. Congress can legislate to curb the power of agencies that anger public opinion. Indeed, agencies actually face greater congressional constraints than the president, because Congress can adopt legislation abolishing an agency entirely, whereas it cannot do the same to the president. Removal of the president through impeachment is much more difficult than ordinary legislation curbing agency power.

Voter ignorance or partisan bias might lead the public to overlook problematic agency policies. But the same is true of those enacted by presidents.

In sum, there is every reason to apply the major questions doctrine to presidential actions no less than those of agencies. The Big Boss must be kept on a tight constitutional leash no less than his subordinates.

Comments

[SRG2]

"I'll take "Arguments that Josh would never make as long as Trump is president" for $100, Alex"

[Martinned2]

the common-sense textualist rule of interpretation that a grant of major authority requires clearer authorization than one that delegates only some minor power.

That seems to confuse two different issues: Whether the grant of authority exists at all (a court might be more reluctant to conclude that a given delegation exists if it is a major one) and whether there are any constraints on a particular delegation (e.g. that a particular power can only be used in case of an invasion or declared war).

This whole business about intelligible principle is - or ought to be as a matter of (legal) logic - about the scope of delegations, not about their existence. If the courts insist that delegations are allowed or not depending on their scope, they're just making stuff up.

[Dan Schiavetta]

Congress is not a “co-equal branch”.

[MollyGodiva]

Agreed. Congress is the stronger of the three branches, by quite a bit.

[Dan Schiavetta]

Congress can impeach the other two branches. The other two branches can't do anything to Congress.

If, under the Major Questions Doctrine (newly minted by conservative Justices to overturn administrative actions they didn't agree with), agencies can't run afoul of what Congress wants, neither can the President.

[JoeFromtheBronx]

The executive can put members of Congress in prison.

It is pretty powerful in general, including one person being able to block legislation unless there is a supermajority.

The judiciary interprets what Congress passes, sometimes declaring it unconstitutional. It can determine that it is misusing its power, even involving its members.

There is the whole "no power of the purse or sword" thing, but realistically, the courts have a lot of power to interfere with Congress.

[Brett Bellmore]

We're talking about power in terms of the ultimate showdown, so long as the rules are followed.

So, sure, if the President doesn't have to follow the rules, AND the executive branch sticks by him anyway, you've got a dictator that can just dispose of the other two branches. Because he heads up the branch that actually DOES things.

And, if you assume that the judiciary can just make things up and none the less have their judgements followed, they're the most powerful, because they can rule that the other two branches can't do anything.

But that's kind of boring to say, because absolutely anybody is the most powerful, IF you assume that everybody else is going to humor their demands no matter how outrageous.

But if you're following the rules, IF, Congress is most powerful, because they can fire anybody in the other two branches, defund the executive, override Presidential vetoes. According to the rules!

The rules give Congress most of the trump cards in an inter-branch fight. If they are agreed on using them.

[Sarcastr0]

You're still not getting it.

You're engineering something that isn't engineerable.

This isn't a 'Congress has 200 turps of constitutional power, while the executive has 170. Therefore...'

It's silly. They have different functions. Within their functional spaces, each is supreme. That's why so many of these discussions turn on scope - jurisdiction, ultra vires, delegation...

To abstract to the point that it's a single dimensional comparison is to abstract way beyond any analytical utility.

[MollyGodiva]

Congress can impeach and remove SCOTUS justices. They also confirm justices. Thus Congress has power over SCOTUS.

[Riva]

First, your assertion that the power of impeachment render the respective branches “unequal “ is just flat out wrong and unsupported in the law. 200 plus years of precedent and history say otherwise. So does the text of the Constitution and its separation of powers. And second, that the president is directly politically accountable, as opposed to an agency, actually argues against the application of the major questions doctrine. Third, related to the second, this is plainly a political question and, if there is an issue , it should be settled by the political branches, which, as you point out, have the power to do so, if they choose.

[SRG2]

our assertion that the power of impeachment render the respective branches “unequal “ is just flat out wrong and unsupported in the law.
ard memb
Take another context, There are three board members of a company - a CTO, a CRO and a CFO - and each is tasked with a specific function and in carrying out that function can limit what the other two do. The CTO can tell the other two what systems to buy and to run, the CRO can tell the other two what transactions not to do and what actions to take to limit risk, and the CFO authorises the expenditures of the other two. But the CFO can fire either of the other two, and the other two cannot fire each other or the CFO. Ipso facto they are not co-equals.

Nowhere does the term "separation of powers" or equivalent tern appear in the Constitution, of course and hence it's a functional description not a principle.

that the president is directly politically accountable, as opposed to an agency, actually argues against the application of the major questions doctrine.

The president is not immediately politically accountable, nor is accountable at all during a second term. Hence your argument is bogus. - better yet, because the premise of your point is exactly the opposite of the reality, it follows that the MQD necessarily applies.

Your third point is, ultimately, that you don't want anything to get in the way of Trump and you know that Congress is his poodle. God forbid the courts be allowed to restrict what Dear Leader wants to do.

1.

[Riva]

The major questions doctrine is conceptual inappropriate in the context of questions of congressional delegation directly to the president, all the more so when this implicates foreign affairs and national security matters. Trying to apply this doctrine is just a veiled excuse to get the courts to engage with a political question they have no business deciding. And your attempts to deny the existence of separation of powers doctrine, something that actually inheres in the structure of the constitution and has been recognized and applied by the judiciary since Marbury, is just silly, or more likely ignorance. The same ignorance that compels you to devalue the checks and balances and constitutional division of authority.

[SRG2]

It is amusing to see your referring to checks and balances when the bulk of your posting history consists of condemnation of those who apply said checks and balances.

[Riva]

I guess you have no substantive response so are now resorting to a pathetic attempt to deflect by attacking me. Nothing I've written above is inconsistent with anything I've posted. What you're written above, however, is inconsistent with the Constitution, and, as noted, 200 plus years of precedent and history.

[SRG2]

Nothing I've written above is inconsistent with anything I've posted.

Bullshit. Your posts are replete with criticisms of any judge who rules against Trump, without regard to the actual decisions or the EO that Trump is attempting to impose. If Dear Leader has decreed it, then it's the law, from your perspective.

And you're a whiny bitch, to boot.

[Riva]

This is a recurring error by the TDS afflicted. I don't oppose judicial decisions because they run against President Trump. I oppose them when they're a gross abusive overreach of judicial authority. The TDS crowd, on the other hand, supports any ruling against President Trump simply because it's President Trump.

[SRG2]

I don't oppose judicial decisions because they run against President Trump. I oppose them when they're a gross abusive overreach of judicial authority.

And naturally you decide whether they are a gross abusive overreach by whether they run against Trump.

TDS? The only derangement is from the cultists like yourself who think that any disagreement with Dear Leade3r is a sign of TDS.

[William of Brooklyn]

Separation of powers is extensively discussed in both the Federalist papers and in Madison's notes of the discussions from the constitutional convention, to say nothing of Montesquieu's Spirit of the Laws, which was perhaps the single most powerful governmental philosophy influence on the framers. And then, yes, Marshall carried that forward as did Joseph Story, so puhleeze, no nonsense on how this is just made up out of thin air. That's WHY the Constitution is structured as it is, with ALL legislative, executive, and judicial powers expressly in their respective branches. Modern corruption of the design, written about philosophically by Wilson decades before actually being implemented in his administration, was taken to the moon by FDR, and it's been a struggle ever since then to even pretend we're operating under anything close to the original design. But the original design expressly contemplates Congress authorizing various Executive actions, from ongoing execution of the laws to discrete actions like making war or negotiating treaties. And ample Supreme Court precedents support the principle that when Congress has provided authorization to the Executive, the President is at the apogee of his powers. And those powers are in addition to his "exclusive and preclusive" powers under Article II. With respect to MQD, a distinction must be made between *policy* and law. The president clearly has the power to make and execute policy, as long as it is not contrary to law. And those laws must be within the limited areas where Congress can legislate (e.g., Congress cannot break off relations with Russia, absent a declaration of war,) and the judiciary has no role to play in policy making or legislation, and it too cannot operate outside its lane (e.g., telling the Executive how it will interact with another nation, absent a treaty, which has the status of federal law, controlling the issue under question, and sometimes even then.)
With respect to MQD, the Executive cannot exceed his remit (e.g., the EPA redefining "waters of the United States" so it can regulate non-navigable rivulets) but if the remit is comprehensive and robust, as is the case with tariffs, then nothing further is required.

[Riva]

And, again, it should be clarified that there is a big distinction between authority granted to an administrative agency vs authority delegated directly to the president, in an area that also concerns foreign policy/national security matters. The policy preferences of the courts have no place here.

[William of Brooklyn]

Right. For example, a president most certainly does not have to go through notice and comment to annunciate a new policy (ie, issue an executive order.)

[SRG2]

Not a bad commentary though needs paragraph breaks.

But you cannot ignore 9A and 10A, nor the general principle that where a specific authority has not been delegated explicitly to the Executive, he does not have it even if neither Congress nor the Judiciary have that explicitly authority either.

Just because Congress and the Judiciary do not have delegated authority wrt foreign policy, for example, does not mean that all conduct of foreign policy is within the power of the president. Some authority simply has not been delegated.

Does the president have the authority to arrange the housing of enemy aliens in the prisons of a of foreign government, for example? Well, Art II does not delegate any type of authority that can be remotely interpreted that he has.

So where does he get that authority?

[William of Brooklyn]

You mean, could FDR determine that POWs captured in the Philippines could be held in Australia? Yes, I think that's within his powers as both commander in chief and also his foreign affairs powers (as enunciated in Curtiss-Wright. But that just may be an unfortunate example that you chose; I think in other examples you may be quite right. One that comes to mind would be trade agreements passed by Congress (unless superseded by other authorities also passed by Congress.)

[SRG2]

POWs are, pretty much by definition, not enemy aliens.

[F.D. Wolf]

I agree with Somin that the major powers doctrine applies to the President as well as agencies (why wouldn't it?) but disagree as to there being any ambiguity in the IEEPA. The major powers doctrine says that when Congress delegates its power, it must do so in clear and unambiguous terms, and so it has in the IEEPA.

In United States v. Yoshida International, Inc., (1975) the Court of Customs and Patent Appeals (the predecessor court to the Court of Appeals for the Federal Circuit) held that the delegated power to "regulate...importation" in the Trading with the Enemy Act included the power to impose tariffs. This was the text in question:

investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest

And this is the language used in the IEEPA, enacted two years AFTER the Yoshida decision:

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States

So, being fully aware that the courts had held that giving the President the power to "regulate importation" included the power to impose tariffs, Congress decided to use the exact same language. implying it did not object to the court's holding. It could have placed caveats like "not including tariffs" or the like in the text, but it didn't.

[Doug Heffernan]

"The major powers doctrine says that ... "

What is the "major powers doctrine"? Is there a "powers" one too in addition to the "questions" one?

How many of these major things are there?

[F.D. Wolf]

Please forgive my presumptions that readers have a breadth of knowledge on subjects that goes beyond what might appear in this blog, and that they bring that knowledge with them, or, at least, are capable of simple deductions.

Turning to the delegation of legislative power, in contrast, the Court in reviving its strict originalist vision of the separation of powers faces major obstacles from precedent and from the reliance interests in the regulations generated by existing delegations. The difficulty of restoring the non-delegation doctrine, therefore, explains why the Roberts Court resorts to its shadow—the major-questions doctrine, which we will call the “major-powers doctrine” in this Article. We use this label to distinguish it conceptually from the version of the doctrine, which we believe is properly called the major questions doctrine, that functions as a limitation on Chevron. While these doctrines are often run together by the Court, the major powers doctrine moves to force Congress to undertake its core function of legislating, whereas the major-questions doctrine moves to force the judiciary to undertake its core function of interpretation.

John O. McGinnis & Xiaorui Yang, The Counter-Reformation of American Administrative Law, 58 Wake Forest L. Rev. 100, 108 (2023).

[Doug Heffernan]

"which we will call the “major-powers doctrine” in this Article. We use this label ..."

So, since McGinnis & Yang decided to use this label "to distinguish it conceptually", has everyone (or anyone) else gone along and recognized this distinction?

I do forgive your presumptions, so long as you also forgive me for not having kept up with the finesse and nuance of McGinnis & Yang.

[David Nieporent]

So, being fully aware that the courts had held that giving the President the power to "regulate importation" included the power to impose tariffs,

Setting aside the fiction (which, yes, courts do regularly indulge) that Congress is "fully aware of" what courts have done, by "the courts" you mean "a court."

And tariffs do not fit conceptually in an emergency power statute, so that makes the interpretation even less tenable under the MQD. "There's some sort of national emergency so we must take immediate action — before Congress has time to act — to ban these particular transactions" may make some sense in some circumstances; "there's some sort of national emergency so we must take immediate action — before Congress has time to act — to tax these particular transactions" does not. A tariff and an emergency don't fit together in any way.

[F.D. Wolf]

Thank G-d, you're alive! I get concerned when I've posted something, and you haven't responded within five minutes in an emotional outburst of Pavlovian disagreement.

Better post than usual from you. Less pedantic and less strident than usual with some actual coherence. Well done!

[Riva]

“I agree with Somin that the major powers doctrine applies to the President as well as agencies (why wouldn't it?)” Why wouldn’t it? You see no distinction between an administrative agency, and the office of the president? Is an agency a politically accountable separate branch of government? No actually, it isn’t, notwithstanding the pretensions of some bureaucrats.

[David Nieporent]

This is even more incoherent than usual. One cannot endorse a unitary executive theory and argue that there's a "distinction" between agencies and the president.

The MQD is a canon of statutory construction; it asks whether Congress actually did delegate authority to do a particular thing when it wrote a statute. That issue — what Congress intended — is the same regardless of whether the president or an agency is the actor.

And the whole "politically accountable" cliché doesn’t even make any sense in this context. Nobody can vote for these agencies, and nobody can vote for a second term president either. Trump will never again face voters, so they can't hold him accountable. (Of course, Congress can still hold him accountable, but it can also hold agencies accountable.)

[Magnus Pilatus, MBA, MD, JD, PhDx2]

>Judge Nelson goes on to explain why "political accountability" concerns don't justify treating supposed delegations to the president differently from those to agencies. Given extensive presidential control over agencies, the latter are subject to accountability through him.

How does this ignore all the 30+ "independent agencies" many of whom are law-making? These are delegations of power to agencies designed to be free of political accountability (though they are politically captured).

[Brett Bellmore]

I frequently say this: The problem with a lot of TrumpLaw isn't that it's conceptually a bad idea or illegitimate.

It's that it only ever gets applied to Trump!

[Magnus Pilatus, MBA, MD, JD, PhDx2]

I find it so bizarre, it may not even be TrumpLaw (for those not familiar, it's the legal version of CalvinBall). This could be another one of those "polite fictions" that we're all supposed to mouth? e.g.
"Agencies are accountable to the President"
"Executive branch employees are accountable to the President"
"Judge's are impartial umpires"
"The Justice System isn't two tiered"
"The DOJ is apolitical"
"Congress actually does stuff"
"The Justice System is/isn't racist" (depending upon the question asked)
"You can't be racist against Whites"
"Equity means everybody comes out ahead"
"Carbon Zero means prosperity for everyone"
-and, my new favorite-
"It's totally normal for Federal judges to scream at attorneys when she doesn't personally like a settlement offer by the DOJ"
etc...

[Sarcastr0]

Your inconsistencies continue to burgeon.

Trump is a normal politician doing normal stuff and everything is just Democrats and Democrats disguised as conservatives being unhinged.

But also his methods are very bad and you don't like them.

But also his ends are radical in a good way, and in the end allow you to forgive his bad means.

[Zarniwoop]

“Only ever gets applied to Trump!” in response to a post full of recent examples of the MQD being applied to Pres. Biden.

[Riva]

Too bad you couldn’t forum shop one of the many activist federal judges out there up for the cause. Other even more meritless cases get a TRO in a day or two.

[wvattorney13]

Does Somin believe that Trump has exceeded his powers by enacting these tariffs? I wish the articles were more definitive and numerous and he would quit "hiding the ball."

[tylertusta]

Judge Ryan Nelson (a conservative Trump appointee)

Finally, an attempt to describe the judge without being deliberately misleading.

[ReaderY]

I think the Major Questions Doctrine is a tool to resolve ambiguities. One whould first decide if an ambiguity exists.

I think in general, although Congress can delegate the power to determine tariffs to the President, it ahould do so clearly. Although tariffs are part of foreign policy, and are not just taxes, nonetheless in general the power to tax is a fundamentally legislative power. Taxation should not be devoid of representation. So the President should not be able to assert authority to set tariffs without a statute that says so clearly.