Trump’s tariffs could be undone by one conservative doctrine

The Supreme Court is set to rule soon on President Donald Trump’s use of wartime emergency law to unilaterally impose drastic tariffs on most U.S. countries, raising key questions about the “major questions doctrine (MQD),” or the limiting principle that courts can, in certain circumstances, act to restrict the power of executive agencies.

During oral arguments on Trump’s tariffs in November, the justices focused on the so-called major issues doctrine, which allows courts to limit the power of executive agencies over actions with “broad economic and political significance,” and how it fits with Trump’s use of the International Emergency Economic Powers Act to enact his global and reciprocal tariffs.

The plaintiffs told the court that Trump’s use of IEEPA to unilaterally impose his high import duties violates the major issues doctrine, since IEEPA does not explicitly mention the word “tariffs.” Instead, it authorizes the president to “regulate…importation” during a declared national emergency, the plaintiffs noted, arguing that this does not meet the standards necessary to pass MQD.

“Congress does not (and cannot) use such vague terminology to grant the executive branch virtually unlimited taxing power with such a staggering economic impact – literally trillions of dollars – borne by American businesses and consumers,” they told the court in a previous briefing.

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President Donald Trump speaks during a “Make America Wealthy Again” trade announcement event in the Rose Garden of the White House April 2, 2025, in Washington, DC. (Chip Somodevilla/Getty Images)

Trump administration lawyers have countered that the text of IEEPA’s emergency law is the “practical equivalent” of a tariff.

“Tomorrow’s trial before the Supreme Court of the United States is, literally, LIFE OR DEATH for our country,” Trump said on Truth Social in November.

“With a victory, we have tremendous, but only fair, financial and national security. Without it, we are virtually defenseless against other countries who for years have taken advantage of us.

“Our stock market is constantly reaching record levels and our country has never been more respected than it is now,” he added. “A big part of that is the economic security created by the tariffs and the deals we negotiated through them.”

While U.S. Solicitor General D. John Sauer acknowledged before the justices that IEEPA does not explicitly give an executive the power to regulate rates, he emphasized in November that the power to set rates was “a natural, common-sense inference” of IEEPA.

But it remains to be seen whether the High Court will uphold his argument.

That’s the conclusion reached by the United States Court of International Trade last year. The judges on the three-judge panel voted unanimously to prevent Trump’s tariffs from going into effect, ruling that as commander in chief, Trump does not have “unlimited authority” to impose tariffs under the emergency law.

“The parties cite two doctrines – the nondelegation doctrine and the major issues doctrine – that the judiciary has developed to ensure that the branches do not impermissibly abdicate their respective constitutional powers,” the court said in its ruling.

The doctrine was also in focus in November, as the justices pressed administration lawyers on the applicability of IEEPA to tariffs or taxing powers, and asked the administration what safeguards, if any, existed to limit the whims of the executive branch, should it ultimately rule in Trump’s favor.

While it’s unclear to what extent the court will rely on MQD in its ruling, legal experts told Fox News Digital they would expect it to potentially be cited by the Supreme Court if it blocks Trump’s tariff plan.

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Traders work on the floor of the New York Stock Exchange on March 28, 2025, in New York. (Spencer Platt/Getty Images)

The high court agreed to take up the case on an expedited basis last fall, and a decision is expected in the coming days or weeks.

There is little precedent for major issues as formal precedent cited by courts, the University of Chicago College of Law noted in 2024.

The doctrine was first formally cited by the Supreme Court in its 2022 ruling in West Virginia v. EPA, when the court’s majority cited the doctrine as a basis for invalidating EPA emissions standards under the Clean Power Plan.

Before that, the doctrine existed as a more amorphous strand of statutory interpretation, a phenomenon that Justice Elena Kagan noted in her dissent in the same case.

“The current Court is only textualist when it suits it,” Kagan said at the time. “When this method would run counter to larger goals, special canons like the ‘Major Questions Doctrine’ magically appear as cards out of the text.”

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The United States Supreme Court in Washington, DC (Getty Images)

One factor that could work in Trump’s favor is the fact that the tariff case is to some extent a foreign policy issue, an area in which leaders receive a higher level of deference from the court.

Yet, if the oral arguments are to be believed, the justices appeared poised to block Trump’s use of the IEEPA to pursue his high-tariff plan.

The justices asked Sauer why Trump invoked the IEEPA to impose his sweeping tariffs, noting that it would be the first time a president had used the law to set import taxes on his trading partners.

They also seemed skeptical of the administration’s assertion that it did not need additional congressional authorization to use the law in such a sweeping way and pressed administration lawyers on their contention that the EEPA is only narrowly open to review by the courts.

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“We agree that it is a major power, but it is in the context of a status that explicitly confers major powers,” Sauer said. “The purpose of the statute is to confer major powers to resolve major issues, which are emergencies.”