So much for the notion that the Supreme Court, with its 6-3 majority of justices appointed by Republican presidents, was going to be a rubber stamp for Donald Trump. That is a frequently voiced charge by partisan Democrats, and a fear of many ambivalent voters who find many of Trump’s policies agreeable but worry about his overreach on policy and personnel.
That’s one political meme refuted by the court’s Learning Resources v. Trump decision last Friday, announced, after more than the expected delay for the drafting of concurring opinions. The court struck down Donald Trump’s beloved tariffs, with only one Republican-appointed justice taking the president’s side while the majority made up of three Republican-appointed and three Democratic-appointed justices.
Such a result should not have surprised those with some appreciation of Supreme Court history. President Franklin Roosevelt, after seeing several of his New Deal programs ruled unconstitutional, and after unsuccessfully urging Congress to pack the court with new justices, finally ended up filling eight of the court’s nine seats.
That didn’t stop a bench of Democratic appointees from disapproving of Democratic President Harry Truman’s seizure of the nation’s steel plants during the Korean War, in a case, Youngstown Sheet & Tube v. Sawyer, cited 15 times by the Learning Resources justices.
Justices newly appointed in times when Supreme Court decisions are subjects of partisan disputes tend to agree on contemporary issues. But in time, new problems arise, to which they turn out to have differences. And even animosity: some of the Roosevelt appointees even stopped speaking to each other.
One such issue brought forward by Donald Trump’s election and reelection is the tariff. There’s a strong argument that the president’s view that trade deficits impoverish the country and tariffs enrich it is delusional. Alexander Hamilton backed tariffs not so much to foster infant industries but because they were the easiest tax to collect with the 18th-century technology.
William McKinley, often cited by Trump as a tariff advocate, delivered a speech in September 1901, just days before he was shot, calling for reduced tariffs. He recognized the U.S. industry was no longer as infantile as the United States became the world’s No. 1 steel producer. Later in the century, congressional Republicans kept backing tariff packages as a form of pork barrel patronage for local interests and to hold the party together. But Republican presidents, educated in free market economics in elite colleges (Harvard, Yale, Amherst, Stanford), sought, with limited success, to hold rates down.
Learning Resources doesn’t prevent Trump from using other tariff laws, but they, as Chief Justice Roberts’s opinion of the court notes, “contain various combinations of procedural prerequisites, required agency determinations and limits.” That means he wouldn’t have, in the Chief Justice’s evidently irritated phrasing, “the extraordinary power to unilaterally impose tariffs of unlimited amount, duration and scope.”
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Such capricious policymaking, with enormous economic consequences, has few precedents except for what historian Amity Shlaes describes as Franklin Roosevelt’s daily settings of gold prices during several months in 1933.
Learning Resources, as anti-Trump conservative David French wrote in the New York Times, “may prove to be the most important Supreme Court case this century,” because it fortifies the “major questions doctrine,” celebrated in Justice Neil Gorsuch’s extraordinary 46-page concurrence.
The major questions doctrine is drawn from the constitutional architecture: Article I authorizes Congress to pass laws, Article II authorizes the president to take care that they be faithfully executed. It follows that a president can’t rummage around in the statute books, searching for some language — or, as in this case, two words separated by 16 words — that somehow can be interpreted, though no one has interpreted them that way before, to authorize him to do what he wants to do. On major questions it must be clear Congress has already done that.
The Supreme Court, with majorities made up of Republican appointees, used the major questions doctrine to overturn major Biden administration policies — cancellation of student loans (based on authorization to “waive or modify” them), eviction moratorium (based on preventing “transmission of communicable diseases”) and vaccine mandate (based on “safety and healthy work conditions”).
In a 47-page concurring opinion, Justice Gorsuch argues that the three Democratic-appointed colleagues are wielding the major questions doctrine against the Trump tariffs, though they say they’re not and despite their unwillingness to use it against Biden policies. He argues the three dissenting Republican-appointed justices, who dissented would uphold the tariffs, should have agreed that the major questions doctrine requires overturning them. He argues that Justice Amy Coney Barrett, who voted to overturn tariffs, should have relied more explicitly on the doctrine.
Is this evidence of the kind of discord that divided the Roosevelt-appointed justices so many years ago? Maybe, and the justices don’t seem as collegial now as they did before someone — a liberal justice’s law clerk? — leaked a draft of Justice Samuel Alito’s opinion overturning Roe v. Wade.
But the thrust of Justice Gorsuch’s concurrence is that the justices are functionally in agreement with the major questions doctrine, even if they’re uncomfortable saying so. Perhaps it was written to undercut arguments by the liberal law professoriate that the major questions doctrine is defunct.
Or, as Harvard Law professor Jack Goldsmith puts it, Learning Resources “signals more clearly than ever that, going forward, this Court is going to view broad delegations of statutory authority to act, and/or extravagant presidential interpretations of authority to act, with skepticism.”
It’s hard for Congress to set policy as explicitly as the major questions doctrine seems to require when the two parties have significant disagreements, are in close competition, and are disincentivized to accept compromise when they reasonably hope that the next presidential election will give them the White House and congressional majorities.
That has been the situation for the last 30-some years in which Democrats have won most presidential elections and Republicans have usually won majorities in the House of Representatives. It was also the case for the 30-some years after the Civil War, when policy differences and partisan bitterness were greater than they are today.
But after three decades, new issues arose and new voter coalitions emerged. Sooner or later, that will happen again.
Meanwhile, the Trump administration may search the statute books for verbiage it can use to justify some limited tariff authority, just as the Biden administration searched the statute books to find verbiage to justify some limited student loan forgiveness.
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But the Supreme Court, regardless of partisan labels, seems ready to use the major questions doctrine to limit the billions of dollars that can be raised or spent without some clear authorization in laws passed by Congress. And some day a president will figure out how to persuade Congress to pass laws authorizing all or some of what she or he wants.