Major Questions, Major Drama

The U.S. Supreme Court’s February 20, 2026, opinion in Learning Resources. v. Trump (decided with Trump v. V.O.S. Selections), holding that the President lacks authority to impose tariffs under the International Emergency Economic Powers Act (IEEPA), is notable for many reasons — including its practical impact on the many U.S. companies who paid steep tariffs on global imports and may now be able to recover by filing suit before the Court of International Trade (CIT). That possibility and the key reasons for the High Court’s decision are discussed in our recent alert on this momentous decision.

One aspect of the Learning Resources decision is getting a lot of attention from Court followers and legal scholars and surely will be revisited in future cases challenging novel and expansive executive branch actions: the (attempted) deployment of the major questions doctrine. As explained by Chief Justice Roberts, that doctrine is premised on the proposition that, if Congress is going to delegate the President or agencies authority to take action that has “extraordinary” economic and social impacts — such as by allowing the President to impose tariffs on essentially all global imports when he decides there is a national emergency — it must provide “clear [] authorization.”

The Chief Justice’s analysis prominently invoked the major questions doctrine in support of his conclusion that IEEPA does not confer the power the President asserted. He noted the particular importance of considering the doctrine where the “core congressional power of the purse” is at issue, citing the majority’s statement in Biden v. Nebraska,  600 U.S. 477 (2023), that “a reasonable interpreter would expect [Congress] to [relinquish its taxing power] clearly,” or not at all. Quoting West Virginia v. EPA, 597 U.S. 697 (2022), Justice Roberts stated that “the economic and political significance of the authority the President has asserted … provides a reason to hesitate before concluding that Congress meant to confer such authority,” adding that the stakes here “dwarf those of other major questions cases.”  And in responding to what he perceived as the government’s and principal dissent’s argument that delegations of authority addressing the “most major” questions should be construed not narrowly but, perhaps counterintuitively, broadly, the Chief Justice explained: “There is no major questions exception to the major questions doctrine.”

Notably, however, the section of Chief Justice Roberts’ opinion expounding on the major questions doctrine captured only two additional votes: from Justices Gorsuch and Barrett. Although the other three justices in the majority (Justices Kagan, Sotomayor, and Jackson) agreed that IEEPA did not give the President the authority to impose tariffs, they applied more prosaic tools of statutory interpretation. Specifically, those three justices concluded that the key statutory terms (e.g., “regulate”) do not authorize the imposition of tariffs.

Why was the major questions doctrine a minority view? Justice Kagan’s concurrence explained that, because “ordinary tools of statutory interpretation” sufficed, there was no need to resort to the major questions doctrine’s “clear statement” rule. Further, she argued that the Court has used this requirement of a “special brand of legislative clarity” to “negate expansive delegations Congress had approved” (emphasis added). Citing her dissents in West Virginia v. EPA and Biden v. Nebraska, Justice Kagan opined that applying the major questions doctrine has led the High Court to “override — rather than help discover — the best reading of delegation statutes.”

The dissenters — Justices Kavanaugh, Alito, and Thomas — might have been expected to agree that the issue presented in Learning Resources/V.O.S. Selections presents a “major question.” Those justices, after all, joined decisions rejecting agency action on major questions grounds in West Virginia v. EPA and Biden v. Nebraska. But they were unwilling to deploy the doctrine in the IEEPA context. Thomas, in a solo dissent, explained that the major questions analysis is misplaced here because “[a]s a matter of original understanding, historical practice, and judicial precedent, the power to impose duties on imports is not within the core legislative power”— and importation is merely a privilege, not a right. Kavanaugh, for his part, wrote a 63-page dissent joined by Thomas and Alito to explain why he would have upheld the IEEPA tariffs. Importantly, this opinion did not conclude that the President’s tariffs would have satisfied the major questions doctrine — instead, the dissenters found that it shouldn’t be deployed at all given the circumstances. Ultimately, Justice Kavanaugh’s reasoning for not deploying the major questions doctrine boiled down to an alternative understanding of the historical meaning of “regulate … importation” as encompassing the power to impose tariffs, and an assertion that the doctrine has not and should not apply in “the foreign affairs realm.” Thus, he argued that major exceptions exist to the major questions doctrine.

Perhaps the most interesting aspect of the debate underlying the Court’s decision in V.O.S. Selections, however, is that even the two justices who agreed with the Chief Justice’s application of the major questions doctrine could not agree on what exactly the doctrine is and how it should be applied.

Justice Gorsuch’s concurring opinion, a 46-page treatise more scholarly in tone than decisional, attempted to bolster the bona fides of the major questions doctrine by finding its roots in the history of restrictive interpretation of delegations of authority. He cites (1) early-modern English corporate law (under which “corporations could not regulate on major subjects without express [Parliamentary] authorization;” (2) pre-Revolutionary common law cases holding that “power asserted by the executive ought to be as clear as it is extensive;” and (3) 19th-century railroad cases in which the Supreme Court held that “an enormous power must be conferred in plain language free from doubt.” Justice Gorsuch rejects his liberal colleagues’ characterization of the doctrine as “anti-administrative state,” arguing it is instead “pro-Congress.” And he wasn’t finished: he accuses Justices Kagan, Jackson, and Sotomayor of philosophical inconsistency, noting that their dissents in West Virginia, Nebraska, and other cases read statutory delegations broadly, while they now read IEEPA with “a more constrained approach” that he says “looks remarkably like the major questions doctrine’s rule that, when executive branch officials claim Congress has granted them an extraordinary power, they must identify clear statutory authority for it.” In a footnote to her concurrence, Justice Kagan responded to Justice Gorsuch’s insistence that she is really applying the major questions doctrine, stating: “Given how strong [Justice Gorsuch’s] apparent desire for converts, I almost regret to inform him that I am not one.” She explained that she reaches the same conclusion as he by simply considering the text at issue within its “statutory setting” and “apply[ing] some common sense about how Congress normally delegates.”

Justice Barrett, even while joining the section of the Chief Justice’s opinion invoking the major questions doctrine, declines to endorse Justice Gorsuch’s muscular view of it. She explains, in a crisp five-page concurrence, that she views the major questions doctrine as but another tool of statutory interpretation, one that simply reflects a common-sense approach to reading the words of a statute in context and based on their ordinary meaning. As such, she comes out closer to Justice Kagan than to Justice Gorsuch. Indeed, Justice Barrett takes Justice Gorsuch to task for trying to elevate the doctrine into some sort of “judicial flex,” suggesting that his approach risks enlarging judicial power to the detriment of the other branches. This suggests Justice Barrett may be open, in future cases, to arguments that would restrict the doctrine's reach.

The 150+ pages of ink collectively spilled by the justices to decide this case make one thing clear: the major questions doctrine will continue to be a topic of discussion among the Justices, and thus of major import for those with business before the Court. Indeed, the Court may revisit the doctrine when EPA’s recently issued rule repealing the “Endangerment Finding” and all motor vehicle greenhouse gas regulations — based, in part, on EPA’s conclusion that the major questions doctrine applies to bar it from claiming authority to regulate greenhouse gas emissions under Section 202 of the Clean Air Act — likely reaches that Court in a year or two. Other cases may present nearer-term opportunities.

In the meantime, Crowell & Moring teams will continue to consider whether and how the major questions doctrine may be deployed to benefit our clients. Please don’t hesitate to reach out to us if you have any questions about the doctrine or the Court’s decision in Learning Resources. To stay current on this and other developments, subscribe here to receive the latest Crowell insights.