The Supreme Court's Tariff Ruling Explained: What Learning Resources v. Trump Means | Administrative Remedies

The Supreme Court's Tariff Ruling Explained: What Learning Resources v. Trump Means

On February 20, 2026, the Supreme Court ruled 6-3 that the International Emergency Economic Powers Act does not give the president authority to impose tariffs. The decision struck down tariffs the administration had imposed by claiming emergency powers under a statute originally designed for sanctions — not trade policy. Six justices agreed the tariffs were unlawful. Three dissented.

But the ruling is more complicated than a simple win or loss. While six justices agreed on the result, they split sharply on why the tariffs were illegal — and the reason matters. The disagreement is over the major questions doctrine, a principle that says courts should be skeptical when the executive claims sweeping new powers from old, vaguely worded statutes. Three justices applied that doctrine. Three others reached the same result through ordinary statutory interpretation. And three more said the tariffs were perfectly legal. The fault lines cut across the usual liberal-conservative divide.

In this two-part episode, we break down every part of the decision in plain language. Part 1 covers the textual holding that all six majority justices agreed on — why "regulate" has never meant "tax" in federal law, and why the power to block imports entirely doesn't include the power to tax them. Part 2 walks through all seven opinions, mapping where every justice stands on the most contested question in administrative law.

Listen Now

Part 1 — The Actual Holding: Spotify | Apple Podcasts | Listen on our site
Part 2 — The Major Questions Doctrine: Spotify | Apple Podcasts | Listen on our site

What We Cover

Why the Court said IEEPA's power to "regulate" imports doesn't include the power to impose tariffs
Why the "greater includes the lesser" argument — if the president can ban imports, why can't he tax them — doesn't hold up
How Chief Justice Roberts applied the major questions doctrine against a Republican president for the first time
Barrett vs. Gorsuch: the methodological fight within the conservative wing over what the doctrine actually is
Why Kavanaugh abandoned the doctrine he helped build
Kagan's refusal to validate the major questions framework even when it produces a result she agrees with
Thomas's solo originalist argument that tariff power is a "prerogative power" that Congress can freely hand to the president

Full Transcript — Part 1

EPISODE 16: LEARNING RESOURCES v. TRUMP

Part 1: The Actual Holding (No Major Questions Doctrine)

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress, for reasons we’ll be addressing over the course of this series.

The Babysitter and the Side Hustle

Gwen: Welcome back to Administrative Remedies. We’re going to do things a little differently this week. The tariff decision came down on Friday, and it’s too important for us to not cover it immediately. So we’re going to do it as a bonus episode and tack it with Season 1 since that’s the material it really goes with. We’re splitting it into two episodes today because a lot of the coverage is muddying two really important and different parts of the Roberts opinion—the part where six justices agree on the result, and the part where only three sign on to the Major Questions Doctrine analysis. Those are not the same thing, and the distinction matters enormously. This first episode is the holding—what all six majority justices agree on. The second episode will be the fracture, where we talk about the seven separate opinions and what they’re fighting about. Next week, we will be back to regular season two content. So, Marc, you hire a babysitter. And before you leave, you tell them that if the kids start going crazy with snacks, they can regulate their access to the pantry. If they’re grabbing junk food every five minutes, they can limit what they take. They can cut them off after a certain point. If it’s really getting out of hand, they can lock the pantry entirely. You want the babysitter to use their judgment.

Marc: Yeah, okay, that sounds reasonable. You’re giving them options to handle things if they become a problem.

Gwen: All right. So now imagine that you come home and the kids tell you that the babysitter decided to start charging them a dollar every time they wanted a snack.

Marc: So the babysitter was running a side hustle on top of the babysitting gig.

Gwen: Yes. So, you confront the babysitter and say, what on earth are you doing? And the babysitter says, “You told me to regulate their snack access. That’s what I’m doing. I could have banned snacks entirely. You said I could lock the pantry. Charging a dollar per snack is less restrictive than that. I’m not banning anything. I’m just putting a price on it. That’s regulation.”

Marc: Okay. There’s a logic to that, right? That the market access does create some controls. So, I guess on the surface, that seems reasonable?

Gwen: Yeah, I mean, it can. The babysitter’s right—you said regulate. The babysitter’s right that charging a fee is at least in some senses less severe than a total ban. But it still feels wrong. And when you think about why it feels wrong, you realize it’s because you told the babysitter to manage the snack situation—to set rules, to control access. You never told them they could collect money from the kids. Those are different things.

Marc: Okay, so the question isn’t really whether the babysitter has the authority or this kind of authority. It’s whether this particular authority—the power to charge the kids money for snacks—was part of the original deal.

Gwen: Yes. And so really whether when you said they could “regulate stuff,” that’s enough to get them to charging for snacks. And in the real world, that distinction between regulating and taxing determined, whether the president of the United States could impose tariffs under a law that never mentioned tariffs at all.

Marc: Okay, so on February 20th, the Supreme Court answered that question. The case is Learning Resources Inc. v. Trump, and the vote was 6–3. And the answer was no.

Gwen: Correct. IEEPA—the International Emergency Economic Powers Act—gives the president broad authority to deal with emergencies. It authorizes the president to regulate importation. But six justices concluded that the power to regulate importation does not include the power to impose tariffs. The power to tax is a different power—a power that belongs to Congress—and Congress never gave it away in that statute.

The Statute: What IEEPA Actually Says

Marc: Okay, so let’s start with the statute. What is it and what does it actually say?

Gwen: IEEPA was passed in 1977, and the basic idea is pretty straightforward. It gives the president a set of economic tools to respond to foreign threats. It’s like an emergency toolkit for international crises.

Marc: Okay, what kind of threats was Congress thinking about?

Gwen: Well, the statute says that the president has to identify an unusual and extraordinary threat to national security, foreign policy, or the economy. This has to come from primarily outside the United States. If the president declares a national emergency under the National Emergencies Act, once that happens, IEEPA unlocks a set of specific powers.

Marc: And those powers are what maps onto the babysitter analogy.

Gwen: Exactly, so here’s the key provision. And the entire case turns on these words.

Marc: "Under IEEPA, the president may 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 any transactions involving any property which any foreign country or national thereof has any interest."

Gwen: And if you’re wondering, it looks about as confusing on paper as it does online.

Marc: It’s a mouthful.

Gwen: It really is. So, the important part is what’s in there and what isn’t. There are nine different verbs—investigate, block, regulate, direct, compel, nullify, void, prevent, prohibit. Those are nine specific things that the president can do. And a list of the things he can do them to—things like transfers, imports, and exports. It’s broad, but it’s also specific in a way that matters.

Marc: Because “tariff” isn’t one of those verbs, right? So, a “duty” isn’t in there. “Tax” isn’t in there. It seems like Congress was not giving this authority to the president to say—this special thing we call tariffs and taxes, you don’t have the power to do this under this act.

Gwen: Right, exactly. So, none of those words appear. And that’s like at the beginning with the babysitter analogy—when the parents said regulate, limit, restrict, cut off, or lock, they never said “charge.”

IEEPA’s History: Sanctions, Not Tariffs

Marc: So, okay, how has IEEPA actually been used? If it’s been around since 1977, it has to have a history.

Gwen: Yes, presidents have used it continuously—at least dozens of times. But they always did it for what would look more like sanctions. So, blocking the assets of a foreign regime, prohibiting transactions with weapon proliferators, freezing property connected to terrorism. Those are the things everybody agrees IEEPA was designed for.

Marc: Ah, but no tariffs.

Gwen: Yes. In the 50 years, across eight presidents from both parties, no one had ever used IEEPA to impose any sort of tariff. And when presidents wanted to impose tariffs—and they definitely did, there have been tariffs—they had completely different statutes they used to do that. Statutes that were specifically about customs and trade. And those statutes look really different from IEEPA.

Marc: So ,show us some of those differences. How exactly did they look different?

Gwen: Each one of them uses the word “duty.” They also cap the rate—one caps it at 50%, another at 15%. They impose time limits—one requires a phase-down after a year, another limits the tariff to 150 days. And they also require procedural steps before it can actually happen—like investigations by the International Trade Commission, public hearings, published findings. So, limits on the rate, limits on the time, requirements for process before it happens, IEEPA has none of that.

What Actually Happened

Marc: Okay, so that’s the statute. But what actually happened? How did this controversy actually kick off?

Gwen: Shortly after he took office, Trump officially determined that two foreign threats existed that he said justified action under IEEPA. The first was what he said was an influx of illegal drugs from Canada, Mexico, and China. And the second was large and persistent trade deficits—this idea that the United States was importing far more than it was exporting and that this was hollowing out American manufacturing and undermining critical supply chains.

Marc: And he then declared national emergencies for both of those.

Gwen: So, he said each one was an unusual and extraordinary threat, which is the language that IEEPA requires. And then he invoked his powers under IEEPA to “regulate importation,” which he did by imposing tariffs. Big ones.

Marc: How big?

Gwen: For the drug trafficking emergency, it was 25 percent on most imports from Canada and Mexico and 10 percent on most imports from China. But, for the trade deficit emergency, it was at least 10% on all imports from all trading partners, and plenty of countries had rates that were much higher than that. And these rates kept changing. Eventually, at one point, the total effective tariff rate on most Chinese goods was about 145%.

Marc: Okay, so what does that actually mean for someone buying things?

Gwen: It means that a $200 piece of equipment manufactured in China could have $290 in tariffs added on top before it even reached a store shelf. A small business that was importing parts for manufacturing could see those input costs more than double overnight. And because the rates kept changing—and they were changing sometimes day to day—importers couldn’t plan anything. The Chief Justice’s opinion described a “dizzying array of modifications.” It can also take, like, two to three weeks for something to just physically move from China to the United States. So, people trying to place orders had no idea what the rate was going to be when the goods arrived.

Marc: And this wasn’t targeted at a single product or country—it was universally applicable.

Gwen: Right. This was a comprehensive, constantly shifting tariff regime covering essentially all American trade, imposed and modified at the president’s sole discretion with no procedural prerequisites, no caps, and no time limits.

Marc: All based on two words in a 1977 statute.

Gwen: Yes, two words separated by 16 other words: “regulate” and “importation.”

The Court’s Analysis: Why the Holding Matters on Its Own

Marc: Okay, so let’s get to what the court actually said here.

Gwen: Before we start, I want to be really clear about something—the whole reason we broke these into different episodes, because it matters a lot. The Roberts opinion—that’s the majority opinion—it has multiple parts, but not all of them have the same legal force. So, parts 1, 2A1, and 2B are the official opinion of the court. Those are the ones that six justices signed onto, and those parts are binding law. But parts 2A2 and 3 are only plurality opinions—there are only three justices for those. That’s where the Major Questions Doctrine analysis happens. And that one we are saving for the next episode. This time we’re just focusing on what all six justices agreed on.

Marc: Okay, so the holding we’re about to discuss doesn’t depend on the Major Questions Doctrine at all?

Gwen: It does not. Six justices agreed that ordinary statutory interpretation—just reading the words of the statute in their proper context—is enough to resolve the case.

The Constitutional Foundation: Tariffs Are Taxes

Gwen: And the opinion begins not with IEEPA, but with the Constitution, because the power issue here is one the framers cared about potentially more than almost any other—

Marc: The taxing power. It’s Article I, Section 8, Clause 1—the very first enumerated power given to Congress.

Gwen: Yes, and Roberts frames it that way so it sets up everything that follows. Read this part.

Marc: "Article I, Section 8 of the Constitution sets forth the powers of the legislative branch. The first clause of that provision specifies that the Congress shall have the power to lay and collect taxes, duties, imposts, and excises. It is no accident that this power appears first. The power to tax was, Alexander Hamilton explained, the most important of the authorities proposed to be conferred upon the Union. It is both a power to destroy and a power necessary to the existence and prosperity of a nation. The one great power upon which the whole national fabric is based."

Gwen: Here, Roberts is reminding everyone that the Constitution grants Congress the power to tax. And it does it before it grants Congress the power to regulate commerce or the power to declare war—before everything else, and that the framers did this deliberately.

Marc: Because they just fought a revolution that started with taxation.

Gwen: Exactly. So here they were giving Congress—and more specifically the House, because that’s where taxation legislation needs to start—sole authority over taxes. They did not vest any part of that taxing authority in the executive branch.

Marc: And tariffs are taxes. Is that settled law?

Gwen: Yes. Roberts quotes other cases saying that tariffs are very clearly a branch of the taxing power. A tariff is a tax levied on imported goods, and the first Congress’s first exercise of its taxing power—the second law enacted, right after one about taking oaths—was a tariff.

Marc: Okay, so the government wasn’t arguing the president has some inherent power to impose tariffs?

Gwen: No. So, the government conceded that the president had no inherent peacetime authority to impose tariffs. Their entire case rests on IEEPA—on the argument that Congress delegated the tariff power when it authorized the president to “regulate importation.” The question is whether that delegation actually happened.

The Textual Holding: “Regulate” Has Never Meant “Tax”

Gwen: Now we’re getting to the heart of the textual holding, and the court’s making several moves, each one builds up on the last one. So, like we said before, IEEPA lists nine specific verbs. It names multiple kinds of transactions. Congress went to the trouble of specifying all of these, but it never mentioned tariffs, it never mentioned duties. If Congress had wanted to convey the extraordinary power to impose tariffs, the court says, it would have done so expressly, as it consistently has in every other tariff statute.

Marc: But couldn’t Congress just have thought “regulate” was broad enough to cover it? I mean, maybe they didn’t think they needed a separate word.

Gwen: Alright, valid point. So, the court looks at the definition of “regulate,” and here’s where they quote from Black’s Law Dictionary. And this was the version that was in effect when IEEPA was enacted.

Marc: So, Roberts says, "As a matter of ordinary meaning, the term ‘regulate’ means to fix, establish, or control; adjust by rule, method, or established mode; direct by rule or restriction; or subject to governing principles or laws."

Gwen: Alright, it’s a pretty broad word.

Marc: Yeah, so what’s the problem?

Gwen: The problem is what it doesn’t include—which is taxation. And this isn’t a theoretical point. Here’s how the court drives it home.

Marc: "The U.S. Code is replete with statutes granting the executive the authority to regulate someone or something. Yet the government cannot identify any statute in which the power to regulate includes the power to tax. The government concedes, for example, that the Securities and Exchange Commission cannot tax the trading of securities, even though it is expressly authorized to regulate the trading of securities. We are therefore skeptical that in IEEPA and IEEPA alone, Congress hid a delegation of its birthright power to tax within the quotidian power to regulate."

Gwen: Yeah, so that's the issue. The government’s position would have required the court to accept that in one statute and one statute alone, the word “regulate” means something it has never meant anywhere else in the entire U.S. Code. The SEC regulates securities trading, but it can’t tax it. The FCC regulates broadcasting, but it can’t tax it. The FDA regulates drugs, but it can’t tax them. Every agency in the federal government regulates something, and none of them reads that authority to automatically include the power to impose taxes.

Marc: “The birthright power to tax, hidden within the quotidian power to regulate”—that’s just a great line. Salute to you, John Roberts.

Gwen: “Quotidian” means everyday or ordinary. He’s essentially saying that Congress hands out the power to regulate like plastic cutlery, whereas it treats the power to tax like the family silver. The idea that one is hidden inside the other just isn’t plausible.

The Export Problem

Marc: The Court also addresses the government’s export argument.

Gwen: Yeah, and this is pretty hard for the government to recover from. IEEPA authorizes the president to regulate “importation or exportation.” Same verb, same sentence. It applies to both imports and exports. If “regulate” includes the power to tax, then the president could tax exports.

Marc: But the Constitution expressly forbids export taxes: "No tax or duty shall be laid on articles exported from any state."

Gwen: Yeah, so, the government’s reading would make IEEPA at least partly unconstitutional. And courts generally try to read statutes in ways that don’t make the statutes unconstitutional. The fact that “regulate” applies identically to imports and exports in the same provision, but taxation would be constitutionally permitted for one and forbidden for the other, is pretty strong evidence that “regulate” wasn’t meant to include taxation in the first place. And then there’s also the other verbs. Those other verbs all describe things you might do in a sanctions context, like blocking assets, or prohibiting transactions, or compelling disclosures, voiding unauthorized dealings. Each one of those is a regulatory action. None of them is the distinct power to raise revenue. And decades of presidential practice confirms this. Presidents have used these verbs to sanction foreign actors and to control transactions. Never to impose taxes.

The Greater-Includes-the-Lesser Argument

Marc: But the government didn’t just roll over. They had some real arguments. Like, you generally can’t separate tariffs from trade regulation historically. They’ve always been intertwined, so doesn’t “regulate importation” naturally include tariffs?

Gwen: The court says here this is answering the wrong question. The question isn’t whether tariffs could be a means of regulating commerce—of course they could. The question is whether Congress, when it wrote the specific words “regulate importation” in this specific statute, intended to give the president the power to impose tariffs at his sole discretion. And Congress’s pattern of usage is the most relevant evidence. When Congress grants the tariff power, it uses the word “duty.” It sets caps. It imposes time limits. It requires procedural steps. All things that it did not do in IEEPA.

Marc: And then there’s the greater-includes-the-lesser argument. IEEPA lets the president ban imports entirely—a total embargo. Everyone agrees about that. So why can’t the president do the less extreme thing and just impose a tariff—just condition imports on a payment?

Gwen: This is potentially the argument that will resonate most with non-lawyers, and it’s one that the principal dissent really pushes. If you can do this bigger thing, why can’t you do the smaller thing?

Marc: Because they’re not the same kind of thing.

Gwen: That’s the court’s answer, and that’s the reason we started with that hypo. Tariffs aren’t a smaller version of an embargo. They’re a different kind of thing entirely. An embargo is a regulatory action—it controls what crosses the border. A tariff is a tax—it’s raising revenue for the Treasury. They’re not on the same spectrum. The court says tariffs are different in kind, not degree, from the other authority in IEEPA. The authority to do one doesn’t automatically include the authority to do the other.

Marc: The babysitter can lock the pantry, but that doesn’t mean the babysitter can charge admission to the pantry.

Gwen: Yeah, exactly. So locking is controlling access. Charging is collecting revenue. Even though locking the pantry is harsher in one sense, charging is a different power entirely.

The Predecessor Statute: Nixon’s Surcharge

Marc: We need to share this with some property lawyers out there. So, getting back to the case, what about the predecessor statute?

Gwen: Yeah, before IEEPA, there was the Trading with the Enemy Act—TWEA—which was IEEPA’s predecessor. In 1971, Nixon imposed a 10% surcharge on almost all foreign imports under that act, which had virtually identical language—it said “regulate importation.” And a court upheld it. So the government’s argument was: Congress enacted IEEPA six years later using the same words, so it must have incorporated that interpretation.

Marc: Yeah, if a court says “regulate importation” includes tariffs and Congress uses those exact words again, aren’t they adopting that meaning?

Gwen: The court says no, for multiple reasons. First, the case that talked about it wasn’t a Supreme Court case. The court says that a single expressly limited opinion from a specialized intermediate appellate court isn’t going to create the kind of well-settled meaning that the court could presume Congress had adopted. It also adds some important context. There’s a House report that went with IEEPA that explicitly complained that successive presidents had seized upon the open-endedness of that act to turn it into something quite different from what was envisioned in 1917. So that’s Congress expressing concern about executive overreach under the predecessor statute—not endorsing it.

Marc: And Nixon’s tariffs were nothing like what we’re dealing with here.

Gwen: Yeah, they weren’t even close. The Nixon surcharge was 10 percent. It lasted less than five months and only applied to goods that had been the subject of prior tariff concessions. Nixon himself said that this was a temporary measure. Compare that to the 145 percent tariff on Chinese goods, as well as tariffs on virtually all trade, with no end date and no constraints. So the court doesn’t need to decide whether Nixon’s narrow temporary action was lawful to conclude that this one wasn’t.

The Holding

Marc: Okay, so let’s step back and state clearly what the court has held in this case.

Gwen: Alright, six justices—Chief Justice Roberts, Sotomayor, Kagan, Gorsuch, Barrett, and Jackson—all agree that IEEPA does not authorize the president to impose tariffs.

Marc: And the reasoning is textual?

Gwen: Yes, it’s purely textual. IEEPA contains no reference to tariffs or duties. The word “regulate” doesn’t include the power to tax—it doesn’t in IEEPA, and it doesn’t in any other federal statute that the government could identify. When Congress delegates tariff authority, it does so with explicit language and using careful limits. It didn’t do either of those here. And we’ve had nearly 50 years of presidential practice that confirmed this reading—no president had ever used IEEPA to impose tariffs. And we also know this not just from the words themselves, but from the pattern. Every time Congress gave someone the power to collect money through tariffs, it used different words, set different limits, and imposed different procedures. So the absence of those here isn’t an accident, it’s evidence that Congress didn’t intend IEEPA to include that power.

Setting Up Part 2

Marc: So, there’s a lot more to this case.

Gwen: Oh, there sure is. Six justices agreed on this result, but almost every justice on the court felt the need to write separately. The case itself is seven opinions spanning 170 pages. And the disagreements aren’t about the answer, they’re about the reasoning, about what tools courts should use to interpret statutes like this and what those tools mean for the next case.

Marc: And that connects back to our major questions episodes.

Gwen: Yes. So, the fight playing out across these is the fight we set up in season one. Is the Major Questions Doctrine a freestanding constitutional principle, or is it just textualism done right? And when should it apply? That is what we will be discussing in the other half of this long, major episode.

Marc: I really can’t wait for that.

Gwen: I know. It is coming up momentarily.

Marc: All right. Well, until then, I’m Marc Roark.

Gwen: And I’m Gwen Savitz.

Marc: See you next episode.

Outro

Marc: That does it for today’s episode of Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you’re listening on. And be sure to tune in next time, where we’ll continue to dive into the contours of administrative law. Because remember—you can’t fix what you don’t understand.

Full Transcript — Part 2

EPISODE 17: LEARNING RESOURCES v. TRUMP

Part 2: The Major Questions Doctrine and the Airing of Judicial Grievances

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress, for reasons we’ll be addressing over the course of this series.

The Doctors Analogy: Why Reasoning Matters

Gwen: Welcome back to the second episode on Learning Resources v. Trump. Last episode, we explained what the court held in the case—that six justices agreed IEEPA doesn’t authorize tariffs. We went through the textual analysis, which all the justices agreed was clear. This episode, we’re going beyond that, because this case produced seven separate opinions that totaled 170 pages. And the disagreement isn’t about whether the tariffs are lawful. Again, six justices said they’re not. The disagreement is about why. So, to explain why that matters, I want to try a simple comparison.

Marc: I’m just going to throw a guess out here, but we have a new analogy we’re bringing into the fold.

Gwen: Excellent guess. Alright. We have six doctors. They all agree a patient shouldn’t have surgery. So, same conclusion. But when you read their charts, you realize they got there for completely different reasons. Some think the diagnosis is wrong. Some think the surgery is too risky. Some think medication would work better.

Marc: Then it would matter which reason wins, right? Because it determines what happens with the next patient. If the reason is “this diagnosis is wrong,” future patients who do have the condition might still get the surgery. And that’s what’s happening in this case.

Gwen: Yeah. Here, six justices say the tariffs are unlawful, but their reasoning splits into at least three camps. And the camp that wins determines how the court handles the next time a president claims sweeping power from an old, vaguely worded statute.

Marc: Which brings us back to the Major Questions Doctrine.

Gwen: It does. Why don’t you give a quick run-through for anyone who missed it?

Marc: Okay. If you recall back in season one, episodes 10 and 11, we talked about the Major Questions Doctrine. And the basic idea was that when the executive claims a really big power—economically massive, politically controversial, historically unprecedented—courts don’t just ask whether the statutory text could technically support it. They ask whether Congress clearly intended to delegate that kind of authority. And in those episodes, we identified a split within the court. There’s a strong version, which treats the doctrine as a freestanding rule—extraordinary power requires near-explicit authorization, and ambiguity alone resolves the case against the government. And then there’s a weak version, which says this is just careful textualism—reading statutory language in context, including constitutional structure and common sense about how Congress delegates its authority.

Gwen: Yes. And we said that the court still hadn’t resolved which version was actually the law. And that’s still true. That’s where we get to seven opinions and 170 pages.

The Structure of the Opinion

Gwen: So, just to be really clear about the structure of the opinion, Chief Justice Roberts wrote the entire majority opinion, but not all parts commanded a majority. The textual analysis that we went through last time—that is the actual official opinion of the court. That’s the one that six justices signed onto. But there are also parts of his opinion that are joined only by Gorsuch and Barrett. That’s three justices—a plurality. It is not binding precedent.

Marc: So the Major Questions Doctrine analysis isn’t the holding of the case.

Gwen: Yes, correct. Lower courts will probably pay attention to it, but it’s not the opinion of the Court. And this is a really important distinction that I think a lot of the commentary is already missing. People are calling this “the major questions case.” It’s not. It’s a textual interpretation case where three justices would have also applied the Major Questions Doctrine. And that alone is important, but we’ll get there.

The Roberts Plurality: Major Questions Applied

Marc: Okay, so what does the then plurality say?

Gwen: Okay, so Roberts runs through the familiar Major Questions Doctrine factors. Is there a great deal of economic and political significance? And he says that the government itself pointed to projections that the tariffs would reduce the deficit by $4 trillion and that agreements reached in reliance on the tariffs could be worth $15 trillion. Roberts observes that those stakes dwarf those of other major questions cases. The student loan forgiveness case was a mere $430 billion, and it was just $50 billion in rental protections. So this is a different order of magnitude. And then another factor is whether this is a novel exercise of old authority. Read what he said about that.

Marc: “It’s also telling that in IEEPA’s half century of existence, no president has invoked the statute to impose any tariffs, let alone tariffs of this magnitude and scope. Presidents have, by contrast, regularly invoked IEEPA for other purposes. At the same time, they have invoked other statutes, but never IEEPA, to impose tariffs. The lack of historical precedent for IEEPA tariffs, coupled with the breadth of authority that the president now claims, is a telling indication that the tariffs extend beyond the president’s legitimate reach.”

Gwen: So no president has ever read IEEPA this way. They used IEEPA for sanctions. They used other statutes for tariffs. And Roberts looks at Congress’s pattern of delegating tariff authority—which is always done with explicit language, with limit caps, with time limits, with procedural requirements—and contrasts that with IEEPA, which has none of those safeguards.

Marc: The government tried two escape routes, right?

Gwen: Yes. First, they argued that the Major Questions Doctrine shouldn’t apply in emergency situations. And Roberts said the court had already rejected that in Biden v. Nebraska. And he adds a line from a 1950 concurrence that “emergency powers tend to kindle emergencies.” Next, the government tried to argue that the president has broad authority over foreign affairs and the Major Questions Doctrine should be relaxed in that context. Roberts says the framers gave Congress alone the tariff power, notwithstanding the obvious foreign affairs implications, so there’s no reason Congress would be more willing to surrender that power just because trade involves other countries.

Marc: So there is no major questions exception to the Major Questions Doctrine, is what Roberts is saying.

Gwen: Then the court goes through everything that it did in West Virginia and Biden v. Nebraska and applies it for the first time against a Republican president. And it does so in a case involving foreign affairs and national security. If you’re someone who’s been defending the Major Questions Doctrine, this opinion validates that it is a genuinely neutral principle—not a tool just for striking down Democratic regulation. It is a structural constraint on executive overreach regardless of party.

Marc: But only three justices signed on to that part of the opinion.

Gwen: Exactly. And even those three don’t totally agree what it is.

Barrett’s Concurrence: The Weak Version

Marc: When we look at the composition of the court in this case, Barrett joined the Roberts plurality, but she’s only one of three.

Gwen: Yes, so she joined all of it, but then she wrote separately to address what she viewed as a fundamental disagreement with Gorsuch about what the Major Questions Doctrine actually is. And this is where that weak versus strong framework matters.

Marc: Barrett is the weak version.

Gwen: Yes, her position is that the Major Questions Doctrine is just textualism done right. When you read a statute, you read it in context. That context includes the structure of the Constitution, which vests all legislative powers in Congress. A reasonable interpreter would expect Congress to make the big decisions itself. So, when ambiguous language is claimed to authorize extraordinary power, you’re skeptical, not because of a special doctrine, but because of what the words most naturally mean in their constitutional setting.

Marc: So for Barrett, the text just doesn’t support the government’s claim, and the constitutional backdrop is a part of why it doesn’t.

Gwen: Right. So, read her key passage here.

Marc: So, Justice Barrett wrote, “To the extent that Justice Gorsuch also thinks the background legal conventions and constitutional structure inform the most natural reading of a statute, then we may not be very far apart. Our only disagreement may be over the level of clarity required before a particular interpretation can be deemed the most natural one. I understand Justice Gorsuch to require Congress always to speak precisely to any major power that it intends to give away. As I’ve said before, I think that other less obvious clues can do the trick.”

Gwen: So Barrett, she doesn’t need Congress to use magic words. She just needs the best reading of the statute, all things considered, to support the government’s claim. And here it doesn’t. But she’s worried about what happens when Gorsuch’s approach meets a statute where Congress really did delegate broad power and really did intend it, and under his strong form of the rule, a court might override that congressional intent just because the delegation wasn’t explicit enough.

Marc: So, Justice Barrett really is a realist in this sense, right? She’s looking to what was realistically expected by Congress when it was, was, uh, deploying its legislation, regardless of whether it used the same language over, and over, and over again. And she gets pretty pointed about that.

Gwen: Yeah, she does. She says that if the Major Questions Doctrine becomes the strong form version—and by that she means a rule that instructs judges to adopt an inferior but tenable reading—it would veer beyond interpretation and into policymaking. And then she quotes Scalia at him, saying, “Can we really just decree that we will interpret the laws that Congress passes to mean less or more than what they fairly say?”

Marc: That’s a sitting justice quoting Scalia against a fellow conservative’s version of a doctrine that conservatives have developed.

Gwen: Yes. This isn’t a left-right debate. It’s a methodological debate within the conservatives. Barrett and Gorsuch agree on the result in this case. They’ve agreed on the result in every major questions decision that they’ve dealt with so far. But they disagree about the very nature of what they’re doing, and that disagreement will matter enormously when a case comes along where the text is closer.

Gorsuch’s Concurrence: The Festivus Airing of Grievances

Marc: Okay, so if Barrett is the weak version, then Gorsuch is—

Gwen: Oh, most emphatically the strong version. And his concurrence is doing two things. In the first part, he’s trying to build a historical foundation for the Major Questions Doctrine. He’s trying to argue that it’s really a freestanding constitutional principle. And once he does that, he goes after essentially every other justice on the court. Advisory Opinions called this a “Festivus concurrence,” which is really great, because it really is his airing of grievances with everyone who doesn’t share his view, which seems to be everyone except potentially the chief.

Marc: Okay, let’s start with his affirmative case.

Gwen: He’s trying to prove that the Major Questions Doctrine isn’t a recent invention despite only having been explicitly used in cases starting in the Biden Administration. He traces it from English corporate law in the 1700s through early American cases about municipal charters and railroad commissions. His claim is that whenever someone exercises delegated authority, the same principle applies—ordinary powers come with a grant, extraordinary powers require a clear statement.

Marc: So Gorsuch is doing exactly what I want my students to do on my exams, is be able to connect the pieces across different materials, but the Major Questions Doctrine isn’t a canon of statutory interpretation.

Gwen: Yes. For him, it is a constitutional safeguard with centuries of pedigree. So the practical consequence is pretty stark here: any time the executive claims a major new power, ambiguity resolves against the government, period. You don’t weigh the ambiguity and pick the most natural reading. The ambiguity itself is the answer.

Marc: Okay, that’s the foundation. Now what does he do with everyone else?

Gwen: So, he has three fronts. In one part, he goes after the liberal justices. He walks through their dissents in every prior Major Questions Doctrine case, and essentially says, you read broad statutory language expansively when agencies you liked were claiming power, but now you read IEEPA narrowly when it’s this president.

Marc: So he goes case by case to prove his point.

Gwen: Yes. Case by case. So, in NFIB, the vaccine mandate, Kagan and Sotomayor read “safe and healthful working conditions” as broad enough to cover a mandate for 84 million people. And the eviction moratorium case, they read “necessary to prevent the transmission of communicable diseases” to be broad enough to regulate landlord-tenant relationships nationwide. And in West Virginia, the “best system of emission reduction” was broad enough to transform the electricity grid. So, then, finally, in Biden v. Nebraska, “waive or modify” covered $430 billion in student debt cancellation. Every time, they stressed the expansive language and the scope of the crisis.

Marc: And with IEEPA—

Gwen: So, “regulate importation” during a declared national emergency that the president is personally tasked with responding to, and a statute where IEEPA even authorizes greater restrictions—the president can prohibit imports entirely. So, these were exactly the kinds of arguments he says that the liberal justices made in every prior case. He asks: if the logic worked there, why doesn’t it work here?

Marc: And his answer is that they’re applying the Major Questions Doctrine without admitting it.

Gwen: Yes, he maps each of their arguments onto a Major Questions Doctrine factor—the extraordinary power, the unheralded claim, separation of powers skepticism—and he says they borrowed the entire framework of the Major Questions Doctrine, they’re just refusing to call it that.

Marc: Okay, so that’s the liberals. Then he goes after the dissenters?

Gwen: Yeah, this time, it’s aimed at justices who had been his allies. Kavanaugh joined the majority in West Virginia. He was part of the coalition that built the Major Questions Doctrine into what it is. And now he dissents. He says the Major Questions Doctrine doesn’t apply here because IEEPA involves foreign affairs and because the statutory text constitutes clear congressional authorization.

Marc: And Gorsuch’s response is, “you can’t have it both ways.”

Gwen: Yeah. So, he says, if the Major Questions Doctrine is really a neutral principle, it applies here. The economic stakes are larger than any prior case. The power is more extraordinary. The historical precedent is thinner. Every factor that triggered the doctrine before is present now, only amplified. So, he doesn’t actually say the word “hypocrisy,” but it’s pretty clear what he’s getting at. Either the doctrine is a principle or it’s a tool of convenience. You can’t build it when the overreach comes from one side and abandon it when the overreach comes from the other.

Marc: Okay, so what does he say to Barrett?

Gwen: He’s more gentle, but he’s still going after this fundamental disagreement that they have. As you said, Barrett says that the Major Questions Doctrine is just careful textualism. He thinks that’s not enough, and that we really need a robust, enforceable rule. Barrett worries that his approach goes beyond interpretation to impose a clarity tax on Congress.

Marc: So he’s fighting everyone on three fronts: the liberals for applying the Major Questions Doctrine without admitting it, the dissenters for abandoning it when inconvenient, and Barrett for not making it strong enough.

Gwen: Yes. And what makes it so striking is that Gorsuch is essentially alone. No other justice seems to totally share this full vision.

Kagan’s Concurrence: Ordinary Textualism Is Enough

Marc: Okay. Do the liberal justices actually say they joined the textual holding but refused to apply the Major Questions Doctrine?

Gwen: Yes. Kagan is joined by Sotomayor and Jackson, and she concurs in part and concurs in the judgment. She agrees with the result. Like we said in the last episode, she is fully on board with the textual analysis, but she explicitly refuses to join the Major Questions Doctrine part. And this is consistent—she objected to the Major Questions Doctrine in West Virginia and Biden v. Nebraska, and she objects to it here too.

Marc: Even though it’s working in her favor this time.

Gwen: Yeah, and her reasoning is that she doesn’t need the Major Questions Doctrine because ordinary statutory interpretation gets her there. “Regulate” doesn’t mean “tax” in ordinary usage or in any other federal statute. Congress uses the word “duty” when it delegates tariff authority. No president has read IEEPA this way for 50 years. For Kagan, that’s enough. You don’t need a special doctrine.

Marc: And she says the clear statement requirement from the prior cases was wrong, even when it led to a result she agreed with.

Gwen: Yeah, so she says that the approach used in those cases to override broad delegations were overriding delegations that Congress had actually intended. She doesn’t want to validate that framework, even if it produces a result she likes in this case. And she says something else that’s important—the conventional method of interpretation won’t always favor or disfavor executive officials. It’s going to depend on the different delegation schemes Congress adopts. So, sometimes, under her reading, ordinary textualism will strike down executive action. Sometimes it will uphold it. It just depends on the statute.

Marc: Gorsuch claims she’s now a convert. What does she say to that?

Gwen: Here’s her footnote responding directly to Gorsuch:

Marc: “Given how strong his desire for converts, I almost regret to inform him that I am not one.”

Gwen: So, she says she’s proceeding exactly as she did in the prior cases. She’s looking at the language, she's looking at the statutory setting, she’s using common sense about how Congress delegates. She reached different conclusions in those cases because those statutes were different. The HEROES Act really did broadly delegate waiver authority. The Clean Air Act really did broadly delegate authority over emission systems. IEEPA’s text just doesn’t support the tariff claim.

Marc: So where does that leave us on whether she’s really applying the Major Questions Doctrine under a different name?

Gwen: If what you mean by the Major Questions Doctrine is “courts should be skeptical when the executive claims extraordinary power from vague language,” Kagan’s doing that here. If what you mean by the Major Questions Doctrine is “there’s a heightened special standard that applies on top of ordinary interpretation,” she’s not. This matters because to the extent they would sign on with the Major Questions Doctrine, they'd be signing on to the weak version, not Gorsuch’s strong version. And under the weak version, it would also be consistent for them to find that delegation was fine in prior cases and not in this one. Barrett also isn’t okay with a version that puts a thumb on the scale against the best reading. She just doesn’t reach the same best reading in every case as the liberals.

Jackson’s Concurrence: Legislative History

Marc: Okay, so there was another liberal concurrence. Jackson’s concurrence. What does Justice Jackson say?

Gwen: Hers is really brief. She’s really just adding a key dimension, and that is legislative history. She agrees with Kagan on the textual analysis, but she would also explicitly look at the House and Senate reports that accompanied IEEPA. The textualists on the court generally resist relying on committee reports, and she’s just trying to flag this as an additional source of evidence pointing to the same direction. It’s a supporting argument, but it’s not the main event.

The Dissent: Kavanaugh’s Defection

Gwen: So, then on the other side, we have two dissenting opinions. The principal dissent is by Kavanaugh, and in that, he is joined by Thomas and Alito. Thomas also writes separately with a distinctive originalist framework.

Marc: Hm. That’s shocking. But let’s start with Kavanaugh, because his defection from the Major Questions Doctrine coalition is the real story here.

Gwen: Yeah. His basic claim is this: tariffs are a traditional and common tool to regulate importation. They always have been. When you tell someone they can regulate imports, the ordinary understanding of that phrase has included tariffs throughout American history.

Marc: And his strongest evidence for that claim?

Gwen: He points to the Nixon precedent. And in 1971, Nixon imposed a 10% surcharge under the predecessor of IEEPA using virtually identical language. And a court upheld it, and IEEPA was enacted six years later with the same words. So his argument is Congress knew what those words had been interpreted to mean, and that’s what they meant here. And then he also has the “greater includes the lesser” point. So, read this because this is the argument that’s hardest to counter intuitively.

Marc: "The plaintiffs and the Court acknowledge that IEEPA authorizes the president to impose quotas or embargoes on foreign imports—meaning that the president could completely block some or all imports. But they say that IEEPA does not authorize the president to employ the lesser power of tariffs, which simply conditions imports on a payment. As they interpret the statute, the president could, for example, block all imports from China, but cannot order even a dollar tariff on goods imported from China. That approach does not make much sense."

Gwen: It’s rhetorically effective. The gut reaction is: that can’t be right. How can you do the bigger thing but not the smaller thing?

Marc: And the majority’s answer, like we talked about in the last episode, is that tariffs aren’t a smaller version of an embargo.

Gwen: Right. They’re a totally different kind of power. An embargo controls what crosses the border. A tariff raises revenue. One is regulation. The other is taxation. There’s different powers and different mechanisms.

Marc: Okay, so Kavanaugh argues the Major Questions Doctrine doesn’t apply, then, to foreign affairs?

Gwen: Right. He says the court has never applied the Major Questions Doctrine in this context, and that the history of congressional trade delegations is the history of broad grants of discretionary power. But the majority reads that same history and sees something different—a Congress that carefully guards its tariff power, even when it delegates broadly in the trade space. The explicit language, the caps, the procedures—that’s not Congress handing off the tariff power casually. That’s Congress keeping it on a short leash.

Thomas’s Solo Dissent: The Nondelegation Carve-Out

Marc: Okay, let’s turn to Justice Thomas. He joins Kavanaugh in dissent in full, but then he writes separately as he regularly does.

Gwen: Yeah, it’s not really a shock to see Thomas dissent. So, his argument is fundamentally different. He focuses on the nondelegation doctrine, which we talked about in episode 3 of season one. And that’s the principle that Congress can’t give away its legislative power without being sufficiently clear. Thomas says it simply doesn’t apply to the tariff power as he understands it. He reasons that the nondelegation doctrine protects core legislative power, which he defines as the power to make rules that deprive people of life, liberty, or property. But the power to regulate foreign commerce, including through tariffs, is what Blackstone called a “prerogative power,” originally a royal power that the Constitution assigned to Congress, but that Congress could freely delegate back to the president.

Marc: So for Thomas, the separation of powers concerns that drive the majority’s analysis are just misplaced, because of what the king was able to do.

Gwen: Right. And what better guide could we use as to what our Constitution means than what the king happened to be doing at the time? So, here, he says that the majority’s applying structural principles that don’t fit in this kind of context. And if his view were adopted, it would significantly expand the permissible scope of delegations in foreign commerce and trade. But this is a solo opinion. It’s really just the kind of opinion that’s put out there to generate law review articles such that it could potentially resurface in the future.

Where This Leaves Us

Marc: Okay, so what happens next time, then? The lineup held because the text was reasonably clear. Does it hold when it’s closer?

Gwen: That will depend on the statute. It certainly seems like the liberal justices aren’t going to uphold overreach by a conservative president just to avoid validating a doctrine they’ve criticized. And Roberts, Gorsuch, and Barrett aren’t going to abandon the doctrine when their own side overreaches. So, again, in these clear cases, we probably have six votes to strike down some extraordinary claim of power from vague statutory language. The reasoning will differ. The vote count won’t. And that matters because this administration has claimed a lot of broad powers.

Marc: But Kavanaugh, Thomas, and Alito—they’re not part of that convergence. And they’re likely not going anywhere.

Gwen: That brings us back to something we were talking about in season one. Administrative law rules start to look different depending on who’s exercising the power. Democrats hated the Major Questions Doctrine until tariffs made them realize that maybe they didn’t like unchecked executive action. Kavanaugh supported the Major Questions Doctrine until it was pointed at his side. The doctrine’s real test isn’t whether it survives—it’s whether it survives as a principle rather than a convenience. This case didn’t resolve it, but it gave us potentially the clearest map yet of where every justice stands.

Marc: And for anyone who listened to season one, this is why we covered what we covered.

Gwen: Yes, it is. And next week, we will be back to season two.

Outro

Marc: So that does it for today’s episode of Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you’re listening on. And be sure to tune in next time, where we’ll continue to dive into the contours of administrative law. Because remember—you can’t fix what you don’t understand.

Related Episodes

[The Major Questions Doctrine — Season 1, Episodes 10 & 11]
[The Nondelegation Doctrine — Season 1, Episode 3]
[Rulemaking and Adjudication: The Two Engines of Agency Power - Season 2 Episode 1]