On May 28, the U.S. Court of International Trade (CIT) issued a unanimous ruling against President Donald Trump’s massive “Liberation Day” tariffs, in a case filed by Liberty Justice Center and myself on behalf of five U.S. businesses harmed by the tariffs. The ruling also addressed a related case filed by twelve states led by Oregon. The decision was in large part based on the nondelegation and major questions doctrines: two legal doctrines backed by many conservatives and libertarians, but viewed with suspicion by many on the left. That opposition is misguided. The CIT’s tariff decision illustrates how the two doctrines help protect the constitutional separation of powers, and curb abuses by presidents of both parties.
Trump had sought to use the International Emergency Economic Powers Act of 1977 (IEEPA) to impose 10 percent “Liberation Day” tariffs on imports from almost every nation in the world, plus addition “reciprocal” tariffs on many more countries. Earlier, he used IEEPA to impose 25 percent tariffs on Canada and Mexico, plus additional tariffs on China, under the pretext that these would somehow curtail importation of fentanyl into the United States (challenged in the Oregon case though not in ours). The CIT ruling struck down both, as beyond the scope of presidential authority.
Part of the reason for these results is that the text of IEEPA doesn’t give Trump the unlimited power he claims: to be able to impose tariffs of any amount, on any nation, for any reason he wants. IEEPA can only be invoked to address a “national emergency” that amounts to an “unusual and extraordinary threat.” The CIT panel concluded the Liberation Day tariffs do not fit those requirements. It also ruled that the tariffs imposed by Trump were not sufficiently connected to the danger posed by fentanyl smuggling.
But the court also relied heavily on the nondelegation and major questions doctrines to support the conclusion that “any interpretation of IEEPA that delegates unlimited tariff authority is unconstitutional” and would “constitute an improper abdication of legislative power to another branch of government.” As the court recognized, the president may be able to impose more narrowly limited tariffs on some categories of imports, based on other laws. But neither IEEPA nor any other law gives him unconstrained power to enact sweeping tariffs on virtually every nation in the world, for any reason he wants. And, if it did, nondelegation doctrine would – as the CIT correctly held – render it unconstitutional.
The Nondelegation and Major Questions Doctrines in the IEEPA Cases
The nondelegation doctrine limits the power of Congress to delegate legislative authority to the executive. The Constitution gives Congress, not the president, the power to “lay and collect Taxes, Duties, Imposts and Excises,” and any grant of unlimited tariff authority to the president would be unconstitutional. There is longstanding dispute over the question of how much delegation is too much, and the Supreme Court has often been lax in enforcing nondelegation constraints. But both conservative and liberal justices have held there must be at least some limits. On the CIT panel, both Democratic- and Republican-appointed judges (including one appointed by Trump) agreed that a delegation of virtually unlimited tariff authority goes too far.
In Federalist 47, James Madison warned, that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny,” and emphasized that the president “cannot of himself make a law.” The nondelegation doctrine helps keep these safeguards in place by preventing Congress from giving away its authority to the executive.
The CIT ruling also cites the “major questions doctrine” (MQD), which requires Congress to “speak clearly” when authorizing the executive to make “decisions of vast economic and political significance.” If the law is ambiguous, courts must reject the executive’s assertion of power. Here, too, both conservative and liberal judges on the CIT panel agreed the administration’s position was unsustainable. Trump’s IEEPA tariff would impose some $1.4 to 2.2 trillion in new taxes over the next decade, easily exceeding the magnitude of any of the measures previously ruled to be “major questions” by the Supreme Court, including even President Joe Biden’s $400 billion student loan forgiveness plan (rightly invalidated in 2023).
The nondelegation and major questions doctrines have long been criticized by progressives as mere tools for conservative judges to strike down liberal policies. But, in the IEEPA cases, both conservative and liberal judges used them to strike down a major initiative of a Republican president. The nationwide eviction moratorium struck down under the major questions doctrine during the Biden administration was actually first adopted by Trump (Biden extended it with minor modifications). These examples show the two doctrines can be used to counter power grabs by presidents of both parties, forestalling the kind of monarchical one-person rule the Framers of the Constitution sought to prevent. Indeed, Trump’s IEEPA abuses in some ways reenact King Charles I’s imposition of “Ship Money” taxes without parliamentary authorization, a power grab that helped precipitate the English Civil War.
Nondelegation is also often criticized because of the difficulty of determining when delegation goes too far. That problem is real. But we can at least agree that delegation of vast, sweeping authority like that claimed by Trump under IEEPA is excessive.
Major questions doctrine has likewise been criticized for being arbitrary and a deviation from normal rules of statutory interpretation. But there are two compelling rationales for it. If the Supreme Court remains unwilling to impose more than minimal nondelegation constraints, MQD is a more modest alternative, which at least requires Congress to be clear about its intention to delegate broad authority. In addition, as Supreme Court Justice Amy Coney Barrett emphasized in a concurring opinion in the student loan case, MQD is justified by the “commonsense principle… of communication” that we generally expect clearer, more precise statements of intent when we delegate broad power to an agent than when we delegate relatively narrow authority.
There is also concern that it may be difficult to distinguish “major” questions from “minor” ones. But every measure so far ruled “major” by the Supreme Court – including Biden’s massive student loan forgiveness program, a coronavirus vaccination mandate imposed on 84 million workers, sweeping potential EPA regulations, and the nationwide eviction moratorium – were clearly major. The same is true of the IEEPA tariffs.
Applying the Doctrines to Other Instances of Executive Overreach
The IEEPA tariffs are not the only right-wing power grab that could be curbed by nondelegation and MQD. Trump has also claimed vast sweeping powers over immigration and imposing conditions on recipients of a staggering array of federal spending grants, including state governments and private institutions such as universities and schools. More generally, the “national conservatives” who have come to dominate the Republican party have an extensive agenda of federal government intervention in many aspects of society.
Trump’s newly announced travel ban barring nearly all or most immigration from 19 countries is the kind of measure that may be vulnerable to a nondelegation challenge. It relies on an interpretation of immigration law that gives the president virtually unlimited power to restrict migration for virtually any reason he deems to be in the “interests of the United States.” If an unlimited grant of tariff power is unconstitutional, the same may be true for unlimited executive power to impose immigration restrictions.
In currently ongoing litigation over his federalization of the California National Guard, and use of the military for domestic policing in Los Angeles, Trump is claiming Congress has delegated virtually unlimited authority to deploy the military domestically, and use it for ordinary law enforcement. If so, it would be a boundless delegation of Congress’ constitutional authority to “provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions.” Trump essentially claims he has been granted unreviewable authority to determine whether an “invasion,” a “rebellion,” or other grounds for federalizing the National Guard exists. Such massive, sweeping power surely violates nondelegation, much like a grant of unlimited authority to impose tariffs. And, for obvious reasons, it is extremely dangerous for any one person to have unconstrained authority to use the military domestically. Such power can easily be abused to target political opponents of the incumbent president. Major questions doctrine might also apply here, in so far as the scope of the power granted by Congress is not completely clear on the face of the relevant laws.
These examples address cases where Trump has claimed near-total delegation of power over a vast area of policy. If, as some scholars and judges, such as Supreme Court Justice Neil Gorsuch, argue, nondelegation also forbids less extreme, but still sweeping delegations, it would also constrain presidents in other areas. For example, Trump would be barred from claiming the authority he asserts to impose conditions not specifically authorized by Congress on a wide range of recipients of federal grants, ranging from transgender rights, to coercing sanctuary cities, to tying transportation grants to jurisdictions’ marriage and birth rates, to using federal grants to control the hiring and curricula of universities and public schools. Many of these policies sometimes run afoul of other constitutional constraints, as well. But nondelegation potentially offers a more systematic approach to curbing them. MQD might also help constrain some of these policies, depending on the scope of the claimed power and how clearly Congress granted it.
As the Founders recognized, it is dangerous for sweeping authority over the economy, civil society, the domestic use of the military, and other major issues to be concentrated in the hands of any one person. Enforcement of the nondelegation and major questions doctrines can help curb that danger.
