In recent years, the Supreme Court’s conservative majority has made clear that when the executive branch takes actions that have vast “economic and political significance”—as Trump’s tariffs obviously do—there may be “reason to hesitate before concluding that Congress meant to confer such authority.” In those situations, the Court’s major-questions doctrine, which it named and formalized in 2022, requires the executive to point to “clear congressional authorization” to act in such a manner. This follows Justice Brett Kavanaugh’s suggestion, in a concurrence earlier this year, that the doctrine wouldn’t apply in “national security or foreign policy contexts,” where “the usual understanding is that Congress intends to give the President substantial authority and flexibility.” In oral arguments, however, it became clear that, in the case of tariffs, the major-questions doctrine can’t be so easily sidestepped. Justice Gorsuch told Sauer that he was “struggling” to “accept the notion that Congress can hand off the power to declare war to the President,” which Gorsuch took to be a logical implication of Sauer’s seeming contention that congressional delegations to the President in foreign affairs are essentially unreviewable.
Author: Jeannie Suk Gersen
Published at: 2025-11-06 22:48:04
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