In FCC v. Consumers’ Research, Kavanaugh opined in a concurring opinion that the major-questions doctrine—a tool used by the court to strike down a wide range of significant policies under the Biden administration—does not carry as much weight when a president is acting on national-security or foreign-policy grounds.
The Justice Department happily cited Kavanaugh’s opinion in a filing before the Federal Circuit Court of Appeals earlier this week. The U.S. Court of International Trade ruled in May that Trump’s use of the International Emergency Economic Powers Act, or IEEPA, to impose onerous tariffs on imports with little to no warning went beyond what Congress had authorized under both the major-questions doctrine and a related one known as the nondelegation doctrine. (More on the latter doctrine later.)
The government’s sole citation for this point was Kavanaugh’s concurring opinion. That opinion is not binding on lower courts and it does not necessarily reflect the views of the other eight Supreme Court justices, all of whom declined to join it last month. Even so, it shows how the relationship between Trump and the Supreme Court is increasingly more collaborative than confrontational, even when faced with acts that appear to be illegal, unconstitutional, or both.
The FCC, which supervises the fund, permanently transferred day-to-day control of it to the Universal Service Administrative Company. Justice Elena Kagan described the company as a “private, not-for-profit corporation” in her majority opinion. In addition to its administrative functions, the company helps the FCC determine the rate at which telecom companies must contribute to the fund. After announcing the new rate for 2022 four years ago, Consumers’ Research sued to overturn the funding scheme under the nondelegation doctrine.
At the same time, basic governance requires that Congress give a certain amount of latitude to the executive branch and the judiciary when interpreting and applying federal laws. Good government relies on discretion when faced with unusual circumstances and adaptability when dealing with new situations. To that end, the Supreme Court has long held that the nondelegation doctrine does not kick in so long as Congress—and it is almost always Congress at issue here—provides an “intelligible principle” to guide an agency like the FCC when exercising power delegated to it by the legislature.
The Supreme Court disagreed. Kagan, writing for the 6-3 court, drew the opposite conclusion from the interplay between the two delegations at issue. Since each of them were constitutional on their own, she reasoned, the plaintiffs could not defeat them by arguing that they were somehow unconstitutional together. “Contra the Fifth Circuit, a meritless public nondelegation challenge plus a meritless private nondelegation challenge cannot equal a meritorious ‘combination’ claim,” Kagan explained.
His rationale was a largely pragmatic one: The test has had “staying power” over the past century in part “because of the difficulty of agreeing on a workable and constitutionally principled alternative,” and in part because a “stricter test” could “diminish the president’s longstanding Article II authority to implement legislation.” Though the justices theoretically write for any American to read and understand, Kavanaugh was apparently speaking to his fellow travelers in the conservative legal movement.
Kavanaugh also opined that there was not as much need for a rigid test because the Supreme Court had other tools to use to enforce the separation of powers. He pointed to the demise of the Chevron doctrine last summer and the rise of the major-questions doctrine as evidence that “many of the broader structural concerns about expansive delegations have been substantially mitigated.” The court’s conservative majority, in other words, has plenty of finer-wrought weapons to wield against disfavored regulations and policies without relying upon the blunt instrument of nondelegation.
I emphasize that the major-questions doctrine applies to “policies from Democratic presidents” because it has yet to be used to strike down a Republican president’s policies. Trump’s tariffs seemed like the best opportunity for the court’s conservatives to demonstrate some intellectual consistency. IEEPA’s relevant text does not mention tariffs by name at all. The government argues that the power to “regulate [...] importation” works the same, but the “vast economic and political significance” of that question should counsel against adopting that interpretation, right? Not so, says Kavanaugh, because of national-security reasons:
This is an extremely helpful interpretation for the Trump administration, which has often relied on dubious claims of national-security threats to advance its trade policy. When Trump imposed tariffs on steel imports from Canada at one point during his first term, for example, former Canadian Prime Minister Justin Trudeau asked the president in a telephone call what national-security rationale could possibly justify them. “Didn’t you guys burn down the White House?” Trump reportedly replied, an apparent reference to the War of 1812.
Kavanaugh did not explicitly link this point to the ongoing tariff litigation, though he was undoubtedly aware of it and the legal questions involved. The justices rejected a motion to fast-track a separate tariff-related legal challenge on June 20, one week before the court’s decision in Consumers’ Research was handed down. They have yet to consider the U.S. Court of International Trade’s ruling on the matter; the Trump administration has asked the Federal Circuit Court of Appeals to overturn it first.
A defter bench of conservative justices may also realize that invoking the major-questions doctrine to strike down a major Trump administration policy—and an economically damaging one, at that—could help legitimize the doctrine in other cases down the road. (For one thing, it would certainly stop me from pointing out that the court has never used it against a Republican president.) After the court’s handling of disqualification, “presidential immunity,” and nationwide injunctions, it is no longer clear if the court cares about such things. Upholding Trump’s tariffs even when they violate the conservatives’ preferred doctrines would further prove that the court cares more about facilitating his actions than upholding the law. And at least one justice is already happy to help.
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