Meltdown in the Major Questions Doctrine

‍To the public, Learning Resources v. Trump was a fierce condemnation by the Roberts Court of President Donald Trump’s brash assertions of constitutional power. The Supreme Court flatly rejected the claim that the International Emergency Economic Powers Act (IEEPA) provision empowering the President to “regulate . . . importation” in the face of emergency unlocked tariff powers. The New York Times pronounced the decision as a “Declaration of Independence” by the high court. Slate praised the thirteen pages of the Chief’s opinion backed by a majority as “a withering rebuke . . . [a] crisp, confident opinion.”

But if you look deeper—for instance, at the remaining 157 pages—it becomes clear that the Court’s conservative majority experienced a catastrophic meltdown. The major questions doctrine exploded on the page, receiving a different interpretation in each of the case’s seven opinions. And the lower courts will have to handle the fallout.

The Court formally established (or recognized, depending on your perspective) the major questions doctrine in a 2022 decision striking down a Biden administration regulation, though the doctrine’s roots may stretch much deeper. In essence, the doctrine requires that when the Court sniffs out an agency regulation of “vast economic and political significance” with scant statutory backing, there must be clear congressional intent empowering the agency’s claim to authority to uphold the regulation

This test begs some major questions of its own, though. How much clarity is needed? Is this doctrine mandated by the Constitution? Are there any exceptions? Nearly every Justice provided different answers to these questions.

Start with the “leading revolutionary on administrative law.” Justice Gorsuch authored a lengthy concurrence, characterizing the major questions doctrine as a constitutional compulsion designed to protect Congress’s legislative power. This is tied to the non-delegation doctrine, which generally prohibits Congress from delegating its legislative powers to other branches of government except in particular circumstances. He thus concludes that the doctrine requires a “clear statement” in the statutory text itself showing Congress’s delegation. As such, basing its source as mere “common sense . . . fails to explain many of [the] major questions cases” because a natural reading of the challenged text may well have supported the expansive power claimed. In Justice Gorsuch’s view, the whole point of the exercise is to “load the dice” against the Executive; he sees the doctrine as an ace up the Court’s robes for non-delegation.

Justice Barrett responded in her own concurrence, explaining she sees the doctrine as informed by the Constitution’s structure to add “context” to aid interpretation, rather than a command that the Judiciary “get in the way” of delegations. To her, the major questions doctrine is part of the normal course of determining the best interpretation of a statute. And instead of a clear statement, “less obvious clues can do the trick” of showing Congress’s intent. She cites back to her concurrence in Biden v. Nebraska, which contemplates examples such as a history of similar actions or an unusually high budget as possibly sufficient under the inquiry.

Chief Justice Roberts, ever the compromiser of the Court, placated his colleagues into a single plurality opinion by evading a clear answer on the doctrine’s legal source, pointing to a combination of “context,” “common sense,” and “constitutional structure.” Justice Roberts simultaneously used the major questions doctrine as a shield of “separation of powers principles” to prevent Congress’s powers from “slipping through its fingers” and a sword forged by a “practical understanding of legislative intent” for the “reasonable interpreter.”

The liberal wing of the Court, Justices Kagan, Sotomayor, and Jackson, unsurprisingly “need[ed] no major-questions thumb on the scales.” They are long-standing skeptics of the doctrine’s legitimacy, and despite joining portions of Justice Roberts’s opinion interpreting IEEPA, refused to become converts to any clear statement rule based in non-delegation. Justice Jackson’s concurrence indicates she supports the theory of the intent-driven approach for the major questions doctrine, but finds that its current, actual mechanisms only provide needless speculation.

Dissenting Justices Kavanaugh, Thomas, and Alito recognized the case as within the major question doctrine’s scope yet found in this case that IEEPA should survive its scrutiny for two reasons. First, the Justices argued IEEPA provides a major answer to the question President Trump’s tariffs posed. To them, the clarity needed from Congress is found in balancing a four factor test: (1) whether the Executive is using an antiquated statute in an unorthodox manner, (2) whether the Executive has historically claimed such a power through the statute, (3) whether a claimant is acting “outside its wheelhouse,” and (4) whether the statutory language is especially little-used or cryptic. Justice Gorsuch responded by noting the judicial detective’s work does not end with these “clues [as] . . . they do not represent some exhaustive checklist.” Justice Barrett, meanwhile, noted very similar “indicators” in Biden v. Nebraska, but did not directly refer to them in Learning Resources.

Second, the dissenters reached the alternative conclusion that the major questions doctrine does not apply in cases implicating foreign affairs. Justice Kavanaugh bases this in both Justice Barrett and Justice Gorsuch’s conceptualization of the doctrine. If the doctrine is a protection against non-delegation, then he points to the Court’s prior holdings that establish non-delegation is inapplicable in foreign affairs; if it is mere contextual interpretation, then recognizing Congress’s tendency to grant broader delegations in that sphere surely cancels out any weight the doctrine would otherwise be due. While Justice Gorsuch did not accept a foreign affairs exception as applying in this case, he did muse that the major questions doctrine may “speak with less force” in such instances—that rare beast of deferential skepticism. Justice Roberts’s compromise opinion neatly avoided answering if there is a foreign affairs exception, as even if it did exist, it “makes little sense when it comes to tariffs.” Justice Thomas did not address major questions much in his own dissent but noted that, in his eyes, the Court has previously used it both for purely interpretive context and also to avoid non-delegation issues, but IEEPA would pass either challenge.

In the end, all that’s left is a mess of outstanding questions. Are the four “clues” part of the test or not? Is it a prudential doctrine, or a constitutional one? Is there a foreign affairs exception?

But perhaps the more interesting inquiry is what the future contains for the major questions doctrine. On the one hand, it appears almost inevitable that the Court will continue to face Executive action of “vast economic and political significance.” For instance, the Trump administration’s interpretation of 8 U.S.C. 1225(b)(2) to enable detention of all undocumented immigrants without a bond hearing, regardless of how long they’ve been in the country, was recently found by the Middle District of Pennsylvania to violate the major questions doctrine. And there’s little reason to believe future Presidents will be curbing their own power any time soon. Yet it’s also plausible that the Court will shelve the doctrine for a time, pending further consensus. The Justices seem to be aware of the absurdity of the decision’s seven opinions, as in a recent oral argument, Justices Sotomayor and Alito jokingly lamented having felt “left out” of the writing frenzy.

If there’s an upside to Learning Resources’ treatment of the major questions doctrine, it’s that it has a little something for every judge. The opinion is a buffet of statutory interpretation, and the circuits have already gotten in line for a plate. Judge Wardlaw, sitting on the Ninth Circuit, seemed to interpret the case as requiring a clear statement rule in a concurrence for denial of rehearing en banc. Judge Bove of the Third Circuit cited Kavanaugh’s dissent in a denial from rehearing en banc for the proposition that Congress’s silence indicates knowledge of an appellate decision. Some commentators believe the decision “provides important albeit implicit guidance,” but where that guidance leads seems to hinge entirely on which Justice is being followed.

Love it or hate it, Learning Resources is a case that will go down in history. But whether the major questions doctrine will stand the test of time amidst the instability remains to be seen.

Copyright © 2026 Cole Troutner, J.D. Candidate, UC Berkeley Law.