The "major questions doctrine" is a major expansion of Supreme Court prerogative. It has been the subject of trenchant crititicsms as a Supreme Court power grab such as that by Mila Sohoni in the pages of the Yale Law Journal and other leading journals.
The so-called major questions doctrine pens District Judges while it licenses the Supreme Court. As Sohoni has observed it serves
to centralize power in the Supreme Court by weakening actors of our government other than the Supreme Court. Though accepting the case against universal vacatur will certainly place curbs on lower court judges, it would also indulge, and thereby strengthen, the perilous proposition that the Supreme Court should intervene to redistribute congressional allocations of power in ways that centralize its own importance and preferences.
- GWC
In V.O.S. SELECTIONS, INC., et al. v.DONALD J. TRUMP, an enbanc opinion by the Federal Circuit Court of Appeals [over three dissents] the majority held:
The Government appeals a decision of the Court of International Trade setting aside five Executive Orders that imposed tariffs of unlimited duration on nearly all goods from nearly every country in the world, holding that the tariffs were not authorized by the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701 et seq. Because we agree that IEEPA’s grant of presidential authority to “regulate” imports does not authorize the tariffs imposed by the Executive Orders, we affirm.
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The Constitution grants Congress the power to “lay and collect Taxes, Duties, Imposts and Excises” and to “regulate Commerce with foreign Nations.” U.S. Const. art. I, § 8, cl. 1, 3. Tariffs are a tax, and the Framers of the Constitution expressly contemplated the exclusive grant of taxing power to the legislative branch; when Patrick Henry expressed concern that the President “may easily become king,” 3 Debates in the Several State Conventions 58 (Jonathan Elliot ed., 1836), James Madison replied that this would not occur because “[t]he purse is in the hands of the representatives of the people,” id. at 393.
Moreover, the United States imports more than $4 trillion of goods annually; these imports account for 14 percent of the nation’s economy. J.A. 215. The Government itself has claimed that the Reciprocal Tariffs will “generate between $2.3 trillion and $3.3 trillion over the budget window.” The White House, Statement from the Off. of Commc’ns, FACT: One, Big, Beautiful Bill Cuts Spending, Fuels Growth, https://www.whitehouse.gov/articles/2025/05/fact-one-big-beautiful-bill-cuts-spending.The Executive’s use of tariffs qualifies as a decision of vast economic and political significance, so the Government must “point to clear congressional authorization” for its interpretation of IEEPA. West Virginia, 597 U.S. at 723 (quoting Util. Air, 573 U.S. at 324).
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On January 20, 2025, the President declared the existence of a national emergency at the United States’ southern border with Mexico under sections 201 and 301 of the National Emergencies Act (NEA), Pub. L. No. 94-412, 90 Stat. 1255 (1976) (codified as amended at 50 U.S.C. §§ 1601–1651). See Proclamation No. 10886, Declaring a National Emergency at the Southern Border of the United States, 90 Fed. Reg. 8,327, 8,327 (Jan. 20, 2025). In the Proclamation, he identified the presence of “cartels, criminal gangs, known terrorists, human traffickers, smugglers, unvetted military-age males from foreign adversaries, and illicit narcotics that harm Americans” at and around the southern border as threats to the country’s territorial sovereignty. Id. Shortly thereafter, the President faulted Mexico for “afford[ing] safe havens for the cartels to engage in the manufacturing and transportation of illicit drugs” to the United States. Executive Order No. 14194, Imposing Duties to Address the Situation at Our Southern Border, 90 Fed. Reg. 9,117, 9,117 (Feb. 1. 2025).
The President also expanded the scope of the national emergency declared in Proclamation 10886 to include threats originating from Canada and the People’s Republic of China. On February 1, 2025, he declared that “the sustained influx of illicit opioids and other drugs has profound consequences on our Nation” and stated that “Canada has played a central role in these challenges, including by failing to devote sufficient attention and resources . . . to effectively stem the tide of illicit drugs.” Executive Order No. 14193, Imposing Duties to Address the Flow of Illicit Drugs Across Our Northern Border, 90 Fed. Reg. 9,113, 9,113 (Feb. 1, 2025). He similarly stated that this emergency had been exacerbated by China’s failure “to arrest, seize, detain, or otherwise intercept chemical precursor suppliers, money launderers, other [transnational criminal organizations], criminals at large, and drugs.” Executive Order No. 14195, Imposing Duties to Address the Synthetic Opioid Supply Chain in the People’s Republic of China, 90 Fed. Reg. 9,121, 9,122 (Feb. 1, 2025).
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