The Trump administration formally asked the Supreme Court on Wednesday evening to decide whether President Donald Trump’s ever-shifting tariff policy is lawful. Two federal courts, and a total of 10 federal judges, have all concluded that it is not.
The remarkable thing about Trump’s petition asking the justices to take up this case, which is known as Trump v. V.O.S. Selections, it that it opens with a long list of factual claims that, if taken seriously by the Court, would compel the justices to strike down the tariffs. But that would assume the Republican-controlled Supreme Court applies the same limits on executive power to Trump that it imposed on Democratic President Joe Biden — a highly uncertain proposition.
The tariffs are obviously illegal under the Republican justices’ “major questions doctrine”
During the Biden administration, the Republican justices relied on something called the “major questions doctrine” to strike down several of Biden’s policies. The Court’s Republicans only recently invented this doctrine. It has no basis in law, and it has only ever been used against one president in history: Joe Biden.
That said, the Court did preview the doctrine in an Obama-era decision that applied it to a hypothetical regulation. In that case, Utility Air Regulatory Group v. EPA (2014), the Republican justices announced that “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” The idea was that, even if a federal law can be read to permit the executive to enact a particular policy, courts should read those laws narrowly if the policy is too ambitious.
Indeed, under Biden, the Court even used this recently made-up doctrine to strike down policies that are unambiguously authorized by federal law. In Biden v. Nebraska (2023), the Republican justices struck down the Biden administration’s attempt to cancel many student loans. But federal law could not possibly have been clearer that the executive is permitted to cancel these loans.
The relevant statute gave the education secretary broad authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs” during a national emergency such as the COVID-19 pandemic. The secretary could use this power, moreover, “notwithstanding any other provision of law, unless enacted with specific reference to” the statute authorizing him to cancel loans.
Nevertheless, the Republican justices overrode this statute, pointing to the loan cancellation plan’s high price tag of “between $469 billion and $519 billion.” The “economic and political significance” of such a plan, they concluded, “is staggering by any measure.” And thus the program must be canceled.
Which brings us back to Trump’s petition asking the justices to hear the tariffs case. That petition describes the tariffs as Trump’s “most significant economic and foreign-policy initiative.” It claims that the tariff is necessary to close US trade deficits of “$1.2 trillion per year.” It alleges that the tariffs have given Trump leverage to extract multi-trillion-dollar concessions from foreign nations. And it also claims that the increased taxes Trump has unilaterally imposed on imports — taxes that will largely be paid by the American consumer — “will reduce federal deficits by $4 trillion in the coming years.”
Trump, in other words, claims that the economic significance of these tariffs is an order of magnitude greater than the significance of the student loan program at issue in Nebraska — the one the Republican justices said they must strike down because its significance is “staggering by any measure.”
To be sure, it’s never a good idea for a court to base its decisions on factual claims made by this particular administration. But independent analysis confirms that the economic and political significance of the tariffs is at least as “staggering” as the significance of Biden’s student loan program. An August analysis of the tariffs by Yale’s Budget Lab, for example, concluded that Trump’s tariffs will cost the average American household $2,400 in 2025, and that the tariffs will raise $2.7 trillion in taxes over a 10-year window.
At least one of the Court’s Republicans appears to think that the major questions doctrine doesn’t apply to Trump
It would seem, then, that a straightforward application of the major questions doctrine compels this Court to invalidate Trump’s tariffs. But Justice Brett Kavanaugh already appears to be looking for a way to bail out Trump. Concurring in FCC v. Consumers’ Research (2025), Kavanaugh suggested that this newly invented doctrine does not apply to “foreign policy contexts.”
Trump’s petition also suggests other ways the Court could exempt him from the doctrine, including a claim that the doctrine doesn’t apply when the president personally authorizes a federal policy, instead of promulgating that policy through a federal agency.
Are these arguments persuasive? The truth is that there’s no such thing as a persuasive argument involving the major questions doctrine, because the whole thing is a figment of the Republican justices’ imagination. The Court has never published a majority opinion claiming that this doctrine can be found in any provision of the Constitution, or in any federal statute. And while some individual justices have offered their own explanations of where this recently invented doctrine comes from, those explanations range from silly to ridiculous.
Concurring in Nebraska, for example, Justice Amy Coney Barrett claimed that the doctrine is implicit in a parable about a babysitter.
Asking whether the doctrine applies to foreign policy decisions, in other words, is a bit like asking your daughter whether her imaginary friend likes fried chicken. The answer is whatever your daughter wants it to be.
As Justice Clarence Thomas wrote in a concurring opinion earlier this year, “judge-made doctrines can be difficult for courts to apply” because those courts “lack an underlying legal authority on which to ground their analysis.” If the major questions doctrine derived from a constitutional provision, then the justices could read that provision to determine if it contains a foreign policy exception. If it derived from a statute, they could refer to the statute.
But, because the major questions doctrine is simply something that the Republican justices made up, there is no principled way to determine if it conveniently contains an exception that just happens to rescue a Republican president’s “most significant economic and foreign-policy initiative” from invalidation.
That said, courts are supposed to apply the same rules to Democratic presidents that they apply to Republicans. If the Republican justices actually buy Trump’s claim that he is exempt, that will leave little doubt that these justices are simply playing Calvinball — creating one set of rules to spite Democrats, and a different, far more favorable set of rules for Republicans.
