The Major Questions Doctrine and Trump’s Tariffs
https://policyintegrity.org/documents/Brief_of_the_Institute_for_Policy_Integrity_CIT_TariffMQD.pdf
During the Biden Administration, the Supreme Court developed the “Major Questions Doctrine”. In simple terms, it holds that the Legislative Branch, not the Executive Branch, decides major radical shifts in national policy, in areas where Congressional authority is paramount, like taxes, tariffs, education loan forgiveness, and a change in national energy production from coal fired plants to natural gas and renewables.
The Amicus Brief of the Center for Policy Integrity filed in VOS v. United States https://policyintegrity.org/documents/Brief_of_the_Institute_for_Policy_Integrity_CIT_TariffMQD.pdf makes a compelling argument that the Courts should invalidate the Trump tariffs because they trample on the US Constitution’s separation of powers, which gives Congress, not the President, the authority to set tariffs. The Center invokes the “major questions” doctrine that the Supreme Court used to over-rule Biden-era executive rulemaking in student loan forgiveness and shifting the nation’s energy production away from coal-fired plants.
“The major questions doctrine applies only in “extraordinary cases.” West Virginia, 597 U.S. at 721 (quoting Brown & Williamson, 529 U.S. at 159–60). Such extraordinary cases are ones “in which the ‘history and the breadth of the authority that [the government] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” Id. (quoting Brown & Williamson, 529 U.S. at 159–60) (emphasis added). The Supreme Court reiterated this basic formulation—emphasizing the same factors—in Nebraska. 600 U.S. at 501 (citing West Virginia, 597 U.S. at721). Both opinions indicate that all three factors—history, and breadth, and significance—must be present for a case to trigger the major questions doctrine.”
Their brief points out how the three factors are met in the case challenging Trump’s tariffs. 1) The history: “In the nearly half century since Congress enacted IEEPA, no president has ever used it to impose a tariff. … as of January 2024, presidents had declared 69 national emergencies invoking IEEPA, id. at 15, but “[n]o President ha[d] used IEEPA to place tariffs on imported products from a specific country or on products imported to the United States in general.” 2) The breadth of the transformation: “The President’s assertion of this authority under IEEPA is particularly transformative because Congress has already enacted multiple carefully drafted trade statutes that authorize tariffs only in certain circumstances (e.g., specifying industries, countries, or criteria) and after following specified procedures.” 3) Significance: the “full slate of recent tariffs is projected to “increase federal tax revenues by $166.6 billion” in a single year, representing “the largest tax hike since 1993.” Id. And they are projected to reduce GDP by 0.8% (before foreign retaliation), id., which equates to over $200 billion per year or more than $2 trillion over ten years
Just to highlight the global significance of the transformation of the Trump tariffs, they would transform the United States from a nation that has for the last 90 years espoused in global affairs the free trade economic principles of Adam Smith to a nation now embracing severe protectionism, isolationism, and a reversion to the mercantilist policies of the old British and French Empires of the 17th and 18th Centuries.