The judges of the United States Court of Appeals for the Federal Circuit, in other words, will hear these arguments while they are surrounded with headlines about an escalating trade war and the harm it is imposing on the US economy. All of these are plausible statutory arguments — the last argument is particularly strong — and the plaintiffs’ case against these tariffs should be a slam dunk under something known as the “major questions doctrine.” This doctrine, which was recently invented by the Supreme Court’s Republican majority, requires Congress to “speak clearly” before it can give the executive branch the power to make decisions of “vast ‘economic and political significance.’” Republicans control six of the nine seats on the Supreme Court, and the major questions doctrine is brand new — it has never been used against any president who isn’t named “Joe Biden.” So it is far from clear whether the Republican justices, who held last year that Trump is allowed to use the powers of the presidency to commit crimes, will actually apply this new constraint on executive power to a president of their party.
Author: Ian Millhiser
Published at: 2025-07-22 21:50:23
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