On February 20, 2026, the US Supreme Court decided the consolidated cases of Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, Inc., and struck down the sweeping tariffs President Trump imposed under the International Emergency Economic Powers Act (IEEPA). The decision is a significant judicial check on presidential economic authority. But the seven separate opinions reveal deep fractures on the Court over the reasoning and methodology that produced it. In particular, the Justices splintered over the meaning, application, and very existence of the “major questions doctrine”—an interpretive framework that requires “clear congressional authorization” for executive actions of vast economic and political significance. With no single view commanding a majority, the resulting doctrinal uncertainty creates both risk and opportunity for all regulated entities.
This article maps the competing theories that will determine how far the major questions doctrine extends in future challenges to executive action. The competing judicial philosophies on display in Learning Resources illuminate not only why the Court fractured, but how those fractures will shape the analysis of executive authority across regulatory regimes far beyond the trade context. That unresolved doctrinal debate will matter to business leaders, general counsel, and regulated entities well beyond tariffs or trade policy.
What Is the Major Questions Doctrine?
Any serious account of the major questions doctrine must begin where the Constitution does: Article I, Section 1, which vests “all legislative Powers herein granted” in Congress. That provision, known as the Vesting Clause, assigns lawmaking authority to the legislature and reflects a structural judgment about who may make binding policy choices. In short, by granting Congress “all” legislative Powers, the Framers denied lawmaking authority to the other branches. That limit on Congress’s ability to transfer its lawmaking function to the Executive is known as the “nondelegation doctrine.”
The Vesting Clause, however, has never been understood to prohibit all delegation of legislative authority. In the early 20th century, the Court developed an “intelligible principle” rule, under which Congress may confer authority that looks like lawmaking on executive actors so long as it supplies a sufficiently intelligible standard to guide the exercise of that discretion. See J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). On this understanding, delegations are commonplace—and, some might argue, a practical necessity of modern governance. Indeed, the Court has not struck down a federal statute or program on pure nondelegation grounds in nearly a century. See ALA Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
At the same time, the nondelegation doctrine reflects a deeper concern about democratic accountability and institutional responsibility. Congress is uniquely positioned to make major policy choices because it is politically accountable, structurally representative, and designed to force compromise across competing interests. The Executive, by contrast, is institutionally oriented toward implementation of policy. That contrast helps explain why, even as the Court tolerates delegations in general, it has resisted reading ambiguous statutes to authorize agencies to decide questions of vast economic or political significance. As at least some of the Justices think, the major questions doctrine gives effect to that concern by requiring clear authorization when an agency claims to resolve matters that Congress itself would ordinarily be expected to decide.
The modern major questions doctrine has its roots in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). In that case, the Court held that the FDA could not regulate tobacco as a “drug” and cigarettes as “drug delivery devices,” despite the apparent breadth of the Food, Drug, and Cosmetics Act. In a majority opinion by Justice O’Connor, the Court emphasized that it would not presume that Congress intended to delegate questions of such economic and political significance” to an agency through general or ambiguous statutory language, explaining that “there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Id. at 159–60. The Court did not yet use the phrase “major questions doctrine,” but it cited—ironically, over a dissent written by Justice Stephen Breyer—then-Judge Breyer’s 1986 article in which he argued that “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute’s daily administration.” Id. (quoting Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986)).
Over the next two decades, this major-questions framework took shape as a potent tool for policing significant assertions of executive power. In Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014), the Court, in an opinion by Justice Scalia, held that the Clean Air Act did not authorize “an enormous and transformative expansion in EPA’s regulatory authority” based on greenhouse-gas emissions alone, absent a clear statement from Congress that it intended such a sweeping result. Id. at 324 (citing Brown & Williamson, 529 U.S. at 159). “We expect Congress to speak clearly,” Justice Scalia wrote, “if it wishes to assign to an agency decisions of vast economic and political significance.” Id. The following term, in King v. Burwell, 576 U.S. 473 (2015), Chief Justice Roberts’s majority opinion invoked Brown & Williamson to conclude that Congress did not intend for the Affordable Care Act’s central subsidy scheme to depend on a narrow reading of statutory text that would undermine the statute’s basic design. Id. at 486–87.
The first use of the term “major questions doctrine” in a Supreme Court opinion came from Justice Gorsuch’s dissent in Gundy v. United States, 588 U.S. 128, 167 (2019). In that case, a five-Justice majority rejected a nondelegation challenge to a provision of the Sex Offender Registration and Notification Act that authorized the attorney general to determine the statute’s retroactive applicability. Writing for himself, Chief Justice Roberts, and Justice Thomas, Justice Gorsuch argued that, although the nondelegation doctrine had lacked teeth for decades, courts “regularly rein in Congress’s efforts to delegate legislative power … by different names.” Id. at 167 (Gorsuch, J., dissenting). For example, he explained, the Court used “the major questions doctrine in service of the constitutional rule that Congress may not divest itself of its legislative power by transferring that power to an executive agency.” Id.
After Gundy, references to the major questions doctrine appeared in separate opinions each year. In 2020, Justice Thomas (joined by Justices Alito and Gorsuch) name-checked the major questions doctrine in his separate opinion in Department of Homeland Security v. Regents of the University of California, in which the Court deemed the Trump Administration’s rescission of DACA unlawful. See 591 U.S. 1, 52 (2020) (Thomas, J., concurring in part). In 2021, the Court stayed the Biden Administration’s eviction moratorium under COVID-19 by invoking the holdings of Utility Air and Brown & Williamson. Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758, 764 (2021) (per curiam). The following year, Justice Gorsuch (joined by Justices Thomas and Alito) described the Court’s order staying the Biden Administration’s COVID-19 vaccine-or-test mandate for large employers as an application of the major questions doctrine. NFIB v. OSHA, 595 U.S. 109, 123 (2022) (Gorsuch, J., concurring).
Those decisions set the stage for the major questions doctrine’s first formal recognition by name and its fullest articulation in West Virginia v. EPA, 597 U.S. 697 (2022). In that case, a six-Justice majority, led by Chief Justice Roberts, held that EPA could not rely on an “ancillary” provision of the Clean Air Act to restructure the nation’s electricity generation mix. The Court explained that “in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there.” Id. at 723 (quoting Util. Air, 573 U.S. at 324). “To convince us otherwise,” the Court continued, “something more than a merely plausible textual basis for the agency action is necessary.” Id. “The agency instead must point to ‘clear congressional authorization’ for the power it claims.” Id.
In her West Virginia dissent, Justice Kagan (joined by Justice Breyer, in his final Term, and Justice Sotomayor) accused the majority of deploying a “special canon” that had “magically appeared” to block policy goals with which the majority disagreed. Id. at 779 (Kagan, J., dissenting). Chief Justice Roberts rejected that criticism by explaining that, no matter the “label,” the doctrine “refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” Id. at 724 (citing, inter alia, King v. Burwell, Brown & Williamson, and Utility Air).
Until Learning Resources, the only other Supreme Court decision to apply the major questions doctrine arose in Biden v. Nebraska, 600 U.S. 477 (2023), where the Court struck down the Biden Administration’s student loan forgiveness program for lack of clear congressional authorization. Writing for the six-Justice majority, Chief Justice Roberts explained that a federal law permitting the Secretary of Education to “waive or modify” provisions in student-loan programs in times of national emergency did not “grant[] him the authority to cancel $430 billion of student loan principal” during the COVID-19 pandemic. Id. at 494. To reinforce that interpretation of the statute, Chief Justice Roberts observed that the major questions doctrine counseled against a reading of the statute with such profound “economic and political significance.” Id. at 502. Writing once more for a three-Justice dissent, Justice Kagan (with Justices Sotomayor and Jackson) bemoaned “the so-called major questions” doctrine as “made-up.” Id. at 549 (Kagan, J., dissenting).
The Tariffs Decision
The consolidated cases of Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, Inc., presented a single question: Does IEEPA—a 1977 statute authorizing the President to “regulate … importation” during declared national emergencies—authorize the imposition of tariffs?
The Court answered no. Writing for six Justices, Chief Justice Roberts observed that IEEPA contains no reference to tariffs or duties; that no President in the statute’s nearly 50-year history had invoked it to impose tariffs; and that when Congress has historically delegated tariff authority, it has done so explicitly and subject to strict limits, including caps on rates, durations, and procedural prerequisites. By contrast, the government’s reading would have conferred on the President the unilateral power to impose tariffs of unlimited amount, on any product, from any country, for any duration, so long as the President made a finding of an emergency (which, in the government’s view, was judicially unreviewable).
Justices Thomas, Alito, and Kavanaugh dissented. Justice Kavanaugh authored the principal dissent, which spans 63 pages and argues that tariffs are a “traditional and common tool to regulate importation.” The dissent rejected not only the reliance on the major questions doctrine but also the majority’s statutory interpretation. In the dissent’s view, IEEPA’s text, structure, and history comfortably encompass tariff authority, and the majority’s reading improperly constrains longstanding presidential control over foreign economic policy.
The seven opinions in Learning Resources extended the major questions doctrine’s trajectory but also fractured it:
- Three Justices (Chief Justice Roberts, joined by Justices Gorsuch and Barrett) invoked the doctrine to strike down the IEEPA tariffs but could not agree on what the doctrine is: a constitutional clear-statement rule rooted in Article I (Justice Gorsuch), or merely a commonsense application of ordinary statutory interpretation (Justice Barrett).
- Three other Justices (Justice Kagan, joined by Justices Sotomayor and Jackson) continued to reject the major questions doctrine altogether while reaching the same result that the President lacked the authority asserted under IEEPA.
- The three remaining Justices in dissent (Justice Kavanaugh, joined by Justices Thomas and Alito) would uphold the President’s exercise of power under IEEPA because the plain text of the statute authorized the tariffs at issue. For that same reason, even if the major questions doctrine applied, the statute satisfies the clear-statement rule for a delegation of authority. But the dissenters also argued that the major questions doctrine should not apply at all given the foreign affairs context.
- Lastly, separate writings of Justice Jackson—who turned to IEEPA’s legislative history to determine what Congress actually intended—and Justice Thomas—who argued that the true nondelegation doctrine is both more rigid and narrower than the Court’s precedents have held—exposed further fault lines that will shape the next wave of challenges to executive authority.
The Seven Decisions in Learning Resources
While the result commanded six votes, the Court produced seven separate opinions spanning 170 pages. In broad strokes, the clearest dividing line was the 3-3-3 split between the Chief Justice’s plurality (joined by Justices Gorsuch and Barrett), Justice Kagan’s concurrence (joined by Justices Sotomayor and Jackson), and Justice Kavanaugh’s dissent (joined by Justices Thomas and Alito). But the most consequential fault lines were drawn by four additional solo writings by individual Justices. Each opinion merits evaluation.
1. The Roberts Plurality: Major Questions Doctrine Applies
In his plurality opinion, Chief Justice Roberts, joined by Justices Gorsuch and Barrett, concluded that the major questions doctrine applied and counseled against the legality of President Trump’s tariffs. As articulated in West Virginia v. EPA and Biden v. Nebraska, the doctrine requires clear congressional authorization when executive action carries profound economic and political significance. The plurality identified several hallmarks of a major question: the tariff authority claimed was “extraordinary” and “unheralded”; it implicated Congress’s core power over taxation and revenue; and no prior President had exercised comparable authority. Then, as noted above, the Chief Justice analyzed the statute’s text, structure, and history, and concluded that there was not clear indication, sufficient to satisfy the major questions doctrine, that Congress intended the President to have such sweeping authority.
The plurality also rejected two defenses advanced by the government. First, it held that emergency statutes are not exempt from the major questions doctrine, invoking Justice Robert Jackson’s canonical concurrence in Youngstown Sheet & Tube Co. v. Sawyer and warning that “emergency powers tend to kindle emergencies.” Second, the plurality rejected a categorical foreign-affairs exception, declining to exempt tariffs from the clear-authorization requirement merely because they affect international trade. The Chief Justice characterized the “central thrust” of this argument as seeking an exception for “the most major of major questions.” And he refused to carve out a “major questions exception to the major questions doctrine.”
2. The Kagan Concurrence: Ordinary Interpretation Is Enough
In her concurring opinion, Justice Kagan, joined by Justices Sotomayor and Jackson, agreed with the judgment but took a fundamentally different path. In her view, “straight-up statutory construction” resolved the case without any need for the major questions doctrine’s “thumb on the interpretive scales.” Reading IEEPA’s text in light of the broader statutory scheme and Congress’s established practices for delegating tariff authority, she explained that the statute did not grant President Trump the tariff-setting authority he claimed. That analysis showed that “ordinary tools of statutory interpretation amply support” the result. In particular, she reiterated (and reframed) some of the Chief Justice’s observations; among them, that “regulate” does not naturally encompass taxing, and that combining the statute’s verbs with its objects yields nearly 100 authorized actions, “exactly none” of which involve raising revenue. Justice Kagan maintained her consistent position, articulated in dissents in West Virginia v. EPA and Biden v. Nebraska, that the major questions doctrine is unnecessary and potentially problematic. For that reason, Justice Kagan and her concurring colleagues join only the portion of the Chief Justice’s opinion that analyzed the statute’s text, structure, and history.
3. The Kavanaugh Dissent: A Four-Factor Test and Foreign Affairs Exception
Finally, in his principal dissent, Justice Kavanaugh, joined by Justices Thomas and Alito, rejected the majority’s statutory interpretation and its use of the major questions doctrine. After analyzing the relevant text, history, and precedent, Justice Kavanaugh concluded that the IEEPA tariffs were lawful because “tariffs are a traditional and common tool to regulate importation.” Justice Kavanaugh emphasized historical practice, pointing to President Nixon’s 1971 imposition of a 10 percent worldwide tariff under IEEPA’s predecessor statute, the Trading with the Enemy Act. He also relied heavily on Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548 (1976), in which the Court unanimously upheld a statute authorizing the President to “adjust the imports” as permitting “monetary exactions on foreign oil imports.”
Justice Kavanaugh then explained that, even under the major questions doctrine, IEEPA provides clear congressional authorization for the President’s tariffs. In doing so, he looked at four factors: (1) whether the Executive is seeking unheralded authority in a long-extant statute; (2) whether the Executive is interpreting the statute differently than it has in the past; (3) whether there is a mismatch between the challenged action and the Executive’s expertise; and (4) whether the statutory language is oblique, elliptical, or cryptic. Justice Kavanaugh stressed that the clear-statement requirement is not a “magic-words test,” and argued that the Chief Justice did exactly that in focusing on the statute’s failure to use words like “tariff” or “duty.”
In the alternative, Justice Kavanaugh argued for an exception to the major questions doctrine “in the foreign affairs context.” He reasoned that the Court had “never before applied the major questions doctrine—or anything resembling it—to a foreign affairs statute,” and warned that doing so here improperly constrained the President’s traditional authority over international economic policy. Justice Kavanaugh grounded his reasoning in the observation that “the major questions doctrine is designed in part to protect nondelegation principles, but the nondelegation doctrine does not play a substantial role in foreign affairs cases.” Instead, Congress typically gives the President broad authority in foreign affairs. Applying the major questions doctrine with full force in this domain, he cautioned, could unsettle prior precedents—such as Dames & Moore v. Regan, 453 U.S. 654 (1981), and Hamdi v. Rumsfeld, 542 U.S. 507 (2004)—that recognized executive authority under general statutory grants in the foreign affairs and national security spheres.
4. The Gorsuch Concurrence: A Robust Historical Defense
In addition to joining the Chief Justice’s opinion, Justice Gorsuch wrote a solo concurrence—more than twice the length of the plurality—that is perhaps the most doctrinally significant of the seven. For the first time in any Supreme Court jurisprudence, he mounted a sweeping historical defense of the major questions doctrine, arguing that the principle requiring “clear authority” for claims of extraordinary delegated power is deeply rooted in Anglo-American law—traceable to English common-law rules governing corporations, to agency principles governing powers of attorney, and to early American practices regarding delegated regulatory powers.
Justice Gorsuch used that historical analysis to defend against criticism that the doctrine had “magical[ly]” appeared in recent years. “The major questions doctrine is not ‘anti-administrative state,’” he explained. “It is pro-Congress.” In that vein, he contrasted the doctrine with the recently overruled Chevron doctrine, which he characterized as setting “a presumption that was nearly the opposite of the major questions doctrine”: statutory ambiguity “put a thumb on the scale in favor of delegated power.” The two doctrines therefore “often applied in the same places and counseled opposite results.” With Chevron now overruled, the major questions doctrine is “not an invention so much as a return to form.” Moreover, because he viewed the doctrine’s critics—namely, the three liberal Justices—as having adopted a mode of analysis indistinguishable from the major questions doctrine, he suggested that “skeptics owe the major questions doctrine a second look.”
Justice Gorsuch also engaged directly with Justice Barrett’s characterization of the doctrine—set forth in her separate opinion in Learning Resources and also in prior cases—as rooted in “common sense” about how Congress delegates authority. Justice Gorsuch purported not to see much difference between her approach and his. “When it comes down to it,” he argued, “common sense serves as little more than a segue to Article I’s Vesting Clause.” That segue necessarily requires consultation of “a substantive source external to any statute,” meaning Justice Barrett’s conception of common sense “just becomes the substantive major questions doctrine by another name.” In all events, Justice Gorsuch was “certain of one thing: Our cases hold a clear statement is required to support a claim of extraordinary delegated power.”
As for Justice Kavanaugh’s dissent, Justice Gorsuch marked some common ground. Justice Gorsuch agreed that the four factors used by the dissent “help assess whether a statute clearly authorizes an asserted power,” though “they do not represent some exhaustive checklist, nor does satisfying one guarantee a claim will succeed.” Gorsuch emphasized that, “[u]ltimately, the central question in any major questions case remains whether the executive branch’s claim to an extraordinary power is supported by clear statutory authority.” On that paramount question, Gorsuch disagreed with the dissent’s conclusion.
Justice Gorsuch also addressed the dissent’s accusation that the plurality imposed a “magic words” requirement by demanding that IEEPA specifically mention “tariffs” or “duties.” Justice Gorsuch agreed that the clear-statement rule does not require magic words. To be sure, had IEEPA used “tariffs” or “duties,” he explained, “that would have sufficed.” So, too, would “monetary exactions on foreign imports” or “tax on imported goods” or “any similarly clear term or phrase.” But IEEPA contains “no such language, just a broad term”—regulate—“that could cover almost anything a government does.” Although the major questions doctrine does not require magic words, he explained, it does demand “specific rather than general language”—that “is just how clear-statement rules work.”
Turning to the dissent’s proposed foreign-affairs exception, Justice Gorsuch again acknowledged a “limited point of agreement” with Justice Kavanaugh: because the major questions doctrine protects Article I’s Vesting Clause, “the doctrine does not apply where the President is exercising only his own inherent Article II powers.” The same applies to areas of “overlapping authority”—where a power is vested concurrently in Congress and the President, such as Congress’s power to raise and regulate armies alongside the President’s Commander-in-Chief authority. In those zones of concurrent constitutional authority, Justice Gorsuch suggested, the doctrine’s force may be attenuated.
But Justice Gorsuch was emphatic that those concessions did not help the President under IEEPA. Everyone agreed the President did “not enjoy independent Article II authority to impose tariffs in peacetime.” That left the President exercising “power derived from Congress,” so “the major questions doctrine applies in the normal way.” To Justice Gorsuch, the dissent’s contrary conclusion suggested an exception based on the President’s “foreign affairs purpose” rather than pointing to “an independent constitutionally vested presidential power.” But given the number of powers Congress exercises “that touch on ‘foreign affairs,’” such an exception “would have (enormous) consequences hard to reconcile with the Constitution.” Many executive actions—including those halted by the Court in its prior major questions doctrine cases—could be framed with a foreign-affairs purpose. At least when it comes to tariffs, Justice Gorsuch explained, history “refutes” “the notion that Presidents have traditionally enjoyed so much power.”
5. The Barrett Concurrence: The Doctrine as Contextual Common Sense
Justice Barrett wrote her own solo concurrence to make a pointed methodological claim: she did not agree with Chief Justice Roberts and Justice Gorsuch in applying the major questions doctrine as a special, policy-driven rule constraining Congress or the Executive. Instead, she believed the result followed from ordinary textual interpretation. Courts, she emphasized, must ask what the statute actually authorizes when read in context, using “commonsense principles of communication.” For a textualist, Justice Barrett explained that commonsense context includes the widely shared understanding that Congress does not ordinarily delegate decisions of vast economic or political significance without saying so. In other words, the major questions “doctrine” is simply part of how one discerns the text’s best reading, rather than an external thumb on the scale that applies notwithstanding the text’s best reading.
That same concern animated Justice Barrett’s concurrence in Biden v. Nebraska, where she wrote a solo concurrence to rebut “the charge that the doctrine is inconsistent with textualism.” 600 U.S. 477, 507 (2023) (Barrett, J., concurring). In her view, “[t]he major questions doctrine situates text in context, which is how textualists, like all interpreters, approach the task at hand.” Id. at 511. That context includes “the Constitution’s structure”—which in turn includes the expectation built into Article I that Congress will “make the big-time policy calls itself, rather than pawning them off to another branch.” Id. at 515. She contrasted that text-in-context approach with what she termed “strong-form substantive canons”—“rules of construction that advance values external to a statute.” Id. at 508. Such rules “load[] the dice for or against a particular result in order to serve a value that the judiciary has chosen to specially protect,” and, in theory, could lead a court to “adopt an inferior-but-tenable reading” in favor of that value. Id. at 509. In Justice Barrett’s view, the major questions doctrine is not, and need not be, such a dice-loading canon. It is just another statutory interpretation tool—like dictionaries and plain meaning.
Notably, Justice Barrett’s separate writings in Learning Resources and Nebraska reflect a concern that extends well beyond the major questions doctrine itself. As an academic, she argued that textualism is not simply a preference for statutory text, but a theory about the legitimacy of judicial interpretation. See Amy C. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109 (2010). When judges interpret statutes, they must act as “faithful agents” of Congress, a role that limits how and when courts may rely on doctrines that push statutory meaning in service of external values. Id. at 112. Her skepticism of strong-form substantive canons is therefore not about any one doctrine, but about marking the boundary between interpretation and judicial lawmaking. In her view, if the Constitution permits Congress to delegate significant authority, courts have no license to stand in the way of that choice as a matter of principle. The judiciary’s role is interpretive, not disciplinary.
6. The Jackson Concurrence: Legislative History as the Answer
Justice Jackson wrote separately to underscore the relevance of legislative history as a tool in determining congressional intent. Examining the committee reports accompanying IEEPA, she concluded that Congress understood the statute to authorize regulatory controls regarding foreign property transactions, not revenue-raising measures like tariffs. She rejected the notion that courts should disregard that history when interpreting broadly worded statutes. Indeed, Justice Jackson urged that legislative history is “among the best evidence” of what a statute means, asking “why would it matter which interpretation we think is ‘best’ when Congress has already told us?” Although not a discussion of the major questions doctrine, Justice Jackson’s opinion is significant, as it marks a stark departure from the view—seemingly adopted by all the other Justices—that legislative history cannot trump the text.
7. The Thomas Dissent: An Originalist Nondelegation Framework
Justice Thomas wrote separately to articulate his view of the nondelegation doctrine. In his account, nondelegation concerns arise only when Congress attempts to delegate its “core” legislative power. That includes only “the power[s] to make substantive rules setting the conditions for deprivations of life, liberty, or property,” and those powers “cannot be delegated even if Congress delegates them unambiguously.” He concluded that tariffs—which he would not characterize as “taxes” in the constitutional sense—do not implicate those concerns. This meant that Congress could permissibly delegate that power and need not do so unambiguously. And because the major questions doctrine is a safeguard against unconstitutional delegations, Justice Thomas explained, it has no application in these cases.
Only Justice Gorsuch responded to Justice Thomas’s opinion. He agreed that the nondelegation doctrine “may apply with less force in certain areas,” but otherwise thought Justice Thomas’s “sweeping theory” “presents difficulties” and “would require us to reimagine much of our case law addressing Article I’s Vesting Clause.” Notably, Justice Thomas has previously joined several opinions in which Justice Gorsuch himself has suggested reimagining the Court’s nondelegation doctrine. See, e.g., Gundy, 588 U.S. at 167 (Gorsuch, J., dissenting).
What Remains Unresolved
Learning Resources answers the IEEPA question definitively but raises several important methodological and constitutional questions. These are just a few.
When is the major questions doctrine satisfied?
The 3-3-3 surface split—plurality, concurrence, and dissent—understates the more consequential fractures within the conservative wing of the Court. Justices Sotomayor, Kagan, and Jackson do not recognize the major questions doctrine as a distinct interpretive tool, so the doctrine’s development will be shaped entirely by the six conservative Justices. And Learning Resources suggests some key disagreements.
Chief Justice Roberts’s plurality opinion demanded “clear congressional authorization” but did not define with precision what “clearness” requires. Justice Gorsuch’s and Justice Kavanaugh’s approaches to that problem relied on the same four “clues” in that analysis but reached opposite results on the same statute. Justice Gorsuch cautioned those clues are not an “exhaustive checklist,” while Justice Kavanaugh accused the plurality of imposing a “magic words” test. Justice Gorsuch’s response—that the test isn’t “magic words” but it is “specific rather than general language”—may not fully resolve the issue for lower courts trying to determine how specific is specific enough. The result is a standard that a majority of the Justices endorses in principle but does not apply identically among its individual members in practice.
The three dissenters broke new ground of their own. Justice Kavanaugh concluded not simply that the major questions doctrine was inapplicable or irrelevant, but that the statutory text, history, and precedent affirmatively satisfied the clear-statement standard. That appears to be the first time any Justice in the conservative wing has found clear congressional authorization under the major questions doctrine in a case where the doctrine was squarely invoked.[1] The dissent’s willingness to find “clearness” in a statute that does not mention the specific power claimed suggests a potentially lower threshold than what the plurality demanded. Future litigants will cite both benchmarks, and lower courts will have to choose between them.
And then there is Justice Barrett. While Justice Gorsuch has described the major questions doctrine as a constitutional safeguard designed to prevent executive actions from assuming power Congress should exercise itself, Justice Barrett has been careful to ground her analysis in textualism alone. Accordingly, by her own account, Justice Barrett will never apply the major questions doctrine to adopt what she regards as the second-best reading of a statute. She rejects the idea that courts may forgo the most natural reading of statutory text in favor of an “inferior-but-tenable” alternative based on a clear-statement rule. Again, in Justice Barrett’s view, the major questions doctrine is a part of the ordinary contextual inquiry that determines a statute’s best reading in the first instance, rather than an external thumb on the scale that applies notwithstanding the text’s best reading.
That methodological commitment could carry concrete consequences. Justice Barrett could part company with Justice Gorsuch in any case where the best reading of the text supports the Executive’s claimed authority, even if a clear-statement rule would point the other way. In cases where Barrett is a necessary vote for a coalition applying the doctrine, her more modest conception may function as a practical ceiling on the doctrine’s reach—though that ceiling is untested.
Does the major questions doctrine apply to foreign affairs?
We now have indications from multiple Justices that the doctrine admits of exceptions—or at least variations in force—in the context of foreign affairs. Justice Kavanaugh observed that the three dissenting Justices would categorically decline to apply the doctrine to foreign-affairs statutes, while three others (Justices Kagan, Sotomayor, and Jackson) would not apply it in any context. That vote count suggests there may be no majority willing to apply the major questions doctrine to a foreign-affairs statute. But the inference is not airtight. The three liberal Justices’ refusal to recognize the doctrine as a freestanding tool does not necessarily mean they would reject the result that the doctrine produces in a foreign-affairs case—as Learning Resources itself demonstrates. And Justice Gorsuch’s concurrent-authority framework offers a narrower analytical path that could attract a different coalition in the right case: one in which the President claims authority derived from Congress but can also point to independent Article II power that overlaps with the statutory scheme. The boundary between the “foreign-affairs purpose” and “concurrent constitutional authority” will itself become contested terrain. In short, the question of where the doctrine applies may prove as consequential as the question of how it applies.
What about the nondelegation doctrine?
Justice Thomas’s framework represents the most aggressive reimagining of the nondelegation doctrine that any sitting Justice has advanced. While the doctrine has historically hinged on the clarity of a delegation, Justice Thomas would make the type of power delegated—“core legislative power” versus other powers vested in Congress—a decisive constitutional variable. That would fundamentally restructure the analysis for entire categories of regulatory authority, namely where the claimed power is to “make substantive rules setting the conditions for deprivations of life, liberty, or property.”
For now, the nondelegation doctrine remains largely theoretical. The Court declined to revive it in FCC v. Consumers’ Research, 606 U.S. 656 (2025), and Justice Kavanaugh wrote separately in that case to explain his view why: the major questions doctrine provides a sufficient check on overbroad delegations without the need for a more aggressive nondelegation rule. As he put it, “courts presume that Congress, in the domestic sphere, has not delegated authority to the President to issue major rules—that is, rules of great political and economic significance—unless Congress clearly says as much.” Id. at 705–706 (Kavanaugh, J., concurring). That framing suggests the major questions doctrine as an adequate substitute for the nondelegation doctrine, but Justice Gorsuch’s dissent in Consumers’ Research identified a flaw in the suggestion: “What happens when Congress, weary of the hard business of legislating and facing strong incentives to pass the buck, cedes its lawmaking power, clearly and unmistakably, to an executive that craves it? No canon of construction can bar the way.” Id. at 745 (Gorsuch, J., dissenting).
Justice Thomas’s dissent in Learning Resources adds an additional layer of nuance to this puzzle. Rather than engaging the question of whether the major questions doctrine is a sufficient substitute for the nondelegation doctrine, Justice Thomas introduces a prior inquiry: what kind of power is being delegated? His framework operates on two tiers: first, “core legislative power” cannot be delegated at all, regardless of how clearly Congress speaks; second, non-core Article I powers that can be delegated still must satisfy the major questions doctrine in the manner explained by Justice Kavanaugh. Justice Thomas thus does not reject the major questions doctrine; he applies it only after positing that certain Article I powers are categorically off-limits. Or, as Justice Gorsuch observes, Justice Thomas’s framing first asks whether Congress can delegate a power before resolving whether a given statute shows that Congress did delegate it. But it is important to recognize that this framework cuts in two directions. For powers Justice Thomas classifies as “core legislative”—rules of private conduct enforced through penalties or deprivations of liberty—his framework would invite facial nondelegation challenges of a kind the Court has not entertained since the 1930s. For everything else, however, it is remarkably permissive. Where a power is non-core—as Justice Thomas classified the tariff power—it could be delegated freely. And, having joined Justice Kavanaugh’s dissent in full, Justice Thomas would also exempt from the major questions doctrine in the foreign affairs context. The net effect is a framework that would simultaneously tighten constitutional constraints on domestic regulatory delegations and loosen them for presidential action in other spheres. If it attracted additional votes, that combination could reshape the landscape for challenges to executive authority in both directions.
What role does legislative history play?
Justice Jackson’s concurrence is striking if not jurisprudentially significant. While the other six opinions debated the major questions doctrine’s foundations, scope, and application, Justice Jackson raised an entirely different argument: when Congress has “told us why it has included certain language in a statute,” the courts should listen. And IEEPA’s legislative history, she wrote, made clear that Congress understood the statute to authorize regulatory controls on foreign-property transactions, not revenue-raising measures like tariffs. On that basis, she argued, there was no need to speculate about what Congress “would likely have intended,” because Congress had already said what it intended.
That methodological commitment is striking in context. Justice Kagan famously declared in 2015, “We’re all textualists now”—an observation that following Justice Scalia’s influence, the interpretive wars over legislative history had been won by the textualist camp. Justice Jackson appears unwilling to accept that settlement. Her concurrence in Learning Resources is not an aside or footnote gesturing toward a committee report. It is a sustained argument that legislative history is “among the best evidence” of statutory meaning and that courts have an obligation to consult it. She has pressed this position in other cases as well. See, e.g., Stanley v. City of Sanford, 606 U.S. 46, 74 (2025) (Jackson, J., dissenting). That effort stands in tension with not only the textualist commitments of the conservative Justices, but also with the approach of her liberal colleagues, who appear content to reach the same result through statutory text and structure alone.
It is tempting to dismiss Justice Jackson’s concurrences on legislative history as idiosyncratic. But the same could have been said about Justice Scalia’s now-lauded solo dissent in Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting). And Justice Thomas spent the better part of a decade filing solo dissents accusing his colleagues of treating the Second Amendment as a second-class right, only to author the majority opinion in New York State Rifle and Pistol Association v. Bruen, 597 U.S. 1 (2022). Those one-off writings became intellectual foundations for landmark shifts in the law.
Justice Jackson may be engaged in a similar long-game project: building a body of separate writings that, even if they command no votes today, could shape the interpretive commitments of the next generation of judges and advocates. If so, the consensus that “we’re all textualists now” may prove incomplete. When Justice Jackson’s vote matters, reliance on legislative history for statutory interpretation may be a more live question than the current Court’s textualist majority would suggest. That may revive a cottage amicus brief industry in legislative history, just as the originalist majority on the Court has caused a rise in amicus briefs diving deep into Founding-era historical sources.[2]
Conclusion
The Supreme Court’s tariffs decision answers the IEEPA question but leaves the major questions doctrine itself in an unusual posture: universally acknowledged, repeatedly applied, yet fundamentally unresolved. Six Justices agreed that the President exceeded his statutory authority. But the seven opinions that produced that result reveal a Court deeply divided over the methodology that led to it.
That uncertainty is not abstract. The major questions doctrine has been invoked with increasing frequency in recent years, reflecting the growing centrality of executive action as a tool of governance. Presidents of both parties have turned to expansive readings of existing statutory authority to advance policy goals across virtually every major sector of economic life: energy, public health, financial regulation, immigration, trade, technology, and education. That pattern shows no signs of abating.
Because each new assertion of executive authority is a potential trigger for the major questions doctrine, the unresolved fractures in Learning Resources are not questions for the long term. They are questions for the next case. Parties in that case will have much ground to cover to secure a majority—the Gorsuch clear-statement rule, the Barrett contextual inquiry, and the Kavanaugh four-factor test will likely feature in the briefs. So could the foreign-affairs exception recognized by three Justices and functionally supported by the liberal wing. And beneath the major questions debate, Justice Thomas’s nondelegation framework and Justice Jackson’s campaign to restore legislative history may quietly reshape the intellectual terrain on which the next generation of separation-of-powers cases will be fought.
For regulated industries, the practical imperative is to treat doctrinal uncertainty as a variable to be managed, not a problem to be solved by any single court decision. After Learning Resources, major questions remain about the major questions doctrine. The Court will answer them, but litigants should expect answers to be incremental and shaped by the parties and cases that raise them. The businesses that engage with these questions now will be best positioned to navigate the evolving balance of power between Congress and the Executive.
[1] Justice Kavanaugh pointed to Biden v. Missouri, 595 U.S. 538 (2022) (per curiam), as another example, describing it as “surely” a major question in which the Court upheld the Executive’s authority. In that emergency-docket decision, the Court stayed an injunction against the Biden Administration’s vaccine mandate for staff of Medicare and Medicaid facilities, but it never formally acknowledged applying the major questions doctrine.
[2] Justice Jackson appears to be engaged in a comparable effort on another procedural front: cutting back on the application of Munsingwear vacatur—the practice by which the Supreme Court erases a lower court opinion when the case becomes moot while pending on appeal. See United States v. Munsingwear, Inc., 340 U.S. 36 (1950). The notion behind the doctrine is that a party should not be saddled with adverse precedent when mootness has deprived them of the right to appeal. But beginning with her solo dissent in Chapman v. Doe, 143 S. Ct. 857 (2023) (Jackson, J., dissenting), Justice Jackson has argued that the Court now grants vacatur almost reflexively, without requiring the requesting party to demonstrate the “extraordinary” or “exceptional” circumstances that the doctrine demands—and even when that party contributed to the mootness. She has warned that indiscriminate vacatur strips the legal system of decisions that “are not merely the property of private litigants” but “belong to the public and legal community as a whole.” Id. at 858; see also Turtle Mountain Band of Chippewa v. N. Dak. Legislative Assembly, 144 S. Ct. 2709 (2024) (Jackson, J., dissenting from GVR with instructions to dismiss under Munsingwear); Speech First, Inc. v. Sands, 144 S. Ct. 675 (2024) (same); Biden v. Feds for Med. Freedom, 144 S. Ct. 480 (2023) (same); Kendall v. Doster, 144 S. Ct. 481 (2023) (same). As with her advocacy for legislative history, these writings have so far attracted no additional votes, but they lay groundwork that a future Court, or lower courts looking for guidance, could build on.
