Tariffs may face 'major questions' test
Supreme Court cited doctrine in blocking parts of Biden's agenda
By: Maureen Groppe
USA Today
WASHINGTON - When former President Joe Biden tried to forgive $400 billion in student loan debt, the Supreme Court said he had stretched a federal law too far.
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The conservative court likewise said Biden could not extend an eviction moratorium tied to COVID-19 pandemic and that the Environmental Protection Agency could not regulate power plant emissions that contribute to climate change. In those cases, the majority said the agencies were trying to go beyond what Congress had approved.
..... The high court has said in recent years the executive branch can't take actions that have a major impact on the economy or are a matter of great "political significance," without clear authorization from Congress.
..... Now the court, using similar reasoning could shoot down the centerpiece of President Donald Trump's economic agenda. The nine judges will decide whether its "major questions doctrine" applies to Trump's worldwide tariffs.
..... A divided appeals court said it does, however, some legal experts note that doctrine is in tension with the typical deference the court affords presidents when it comes to foreign affairs.
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"How those two principles work themselves out will be very interesting to watch," said Curtis A. Bradley, an expert on foreign relations law at the University of Chicago Law School.
..... Both sides of the debate were on display in the 7-4 ruling against the tariffs by the U.S. court of Appeals for the federal Circuit, which has been appealed to the Supreme Court.
..... The appeals court said it seemed unlikely that Congress intended to give presidents unlimited authority ti impose tariffs.
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And the economic impact of the tariffs is at least five times greater than the $400 billion in student loan debt relief that Biden wanted to enact, the court said.
..... In that case, Biden argued he had authority to gran relief during the COVID-19 pandemic because of a law given the secretary of education the power to protect borrowers affected by national emergencies.
..... But Che if Justice John Roberts said the education secretary had cerated a "nova and fundamentally different loan forgiveness program" and cannot rewrite the law "from the ground up."
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"The 'economic and political significance' of the Secretary's action is staggering by nay measure," Roberts wrote for the 6-3 majority.
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In the 2022 EPA case, Justice Neil Gorsuch said major polices benefit from the input of different perspectives that the legislative process requires, making them more "stable over time."
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"By effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new laws would enjoy wide social acceptance," he wrote in a concurring opinion that was joined by Justice Samuel Alito.
..... Roman Martinez, a veteran Supreme Court lawyer, said he'll be watching for whether the conservative court uses similar reasoning when evaluational the legality of Trump's tariffs and other policies.
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"It will be interesting to see how those same principles are applied in this context where you have a Republican president with a major policy initiative," he said.
..... In the tariff dispute hat the Supreme Court agreed to hear in November, [2025] Trump is relying on the International emergency Economic pow4ers Act, or IEEPA, a law historically used to impose economic sanctions and other penalties on foreign countries.
..... While the law doesn't mention tariffs, the administration has pointed to the president's power under the law to "regulate' imports in a crisis. Trump says the nation's persistent trade deficit and the flow of fentanyl into the United States qualify as such an emergency.
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A majority on the appeals court said that every time Congress has given the president the power to impose tariffs, lawmakers set up "well-defined procedural and substantive limitations" that aren't present in the IEEPA.
..... "As interpreted by the Government, IEEPA, unlike these other statutes, would impose no such limitation on the President's authority,: they wrote. "The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both 'unheralded' and 'trans formative.' "
..... The four appeals court judges who dissented called the IEEPA an "eyes-open congressional choice" to give presidents wide latitude.
..... "We conclude that IEEPA's authorization of presidential actions in this realm is not an unconstitutional delegation of legislative authority under the Supreme court's decisions, which have upheld broad grants of authority, including tariffing authority, in this foreign-affairs-related area," Judge Richard Taranto, who was appointed by President Barack Obama, wrote for the minority.
..... John Yoo, a former Justice Department official under President George w. bush, thinks the law gives presidents broad authority to impose tariffs in an emergency. But he said Trump could - and should - lose for another reason: The president can't make a credible case for an emergency.
..... "A trade deficit that has persisted for five decades is not unusual enough to constitute a national emergency," Yoo recently wrote.
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If it were, he said, then the changing climate could also be considered an emergency, and another president could use the IEEPPA to go after countries it thinks aren't doing enough to stop fossil fuel emissions.
..... "Supporters of Trump's tariffs," Yoo wrote, "would have little grounds on which to oppose a climate change emergency."