The Supreme Court's "major questions doctrine" – that judicial hammer conservatives wielded so enthusiastically against Biden's agenda – has suddenly found a new target: Donald Trump's ambitious tariff plans.
There's something almost theatrical about this turn of events. The very legal principle that torpedoed student loan forgiveness now threatens to unravel Trump's signature economic policy before it even gets off the ground.
Let me back up a bit.
For the past few years, the Court's conservative majority has been steadily building what amounts to a "too big without explicit permission" test. When federal agencies try to tackle major economic or political questions without crystal-clear Congressional authorization, the justices have been quick to slam on the brakes.
The Court of International Trade just unanimously ruled that Trump's so-called "Liberation Day" tariffs (a name that makes me wince every time I type it) exceed presidential authority, citing this exact doctrine. The vote wasn't even close – a clean 3-0 decision.
Here's where it gets really interesting.
Trump's proposed tariffs would total roughly $1.4 trillion over a decade. That's not a typo – trillion with a T. For comparison, Biden's student loan forgiveness plan – which Chief Justice Roberts described as having "staggering" economic significance – was about $400 billion.
So what happens when a "staggering" program meets one more than three times its size? I've covered the Court for years, and I'm genuinely curious what adjective Roberts might reach for this time. Astronomical? Cataclysmic? The thesaurus might get a workout.
The legal arguments from Trump's team are... creative. They argue the major questions doctrine doesn't apply when power is given directly to the president (rather than an agency) or when it involves national security or foreign affairs.
In other words: "But I'm the president!" Which, to be fair, has sometimes worked before.
At stake is the 1977 International Emergency Economic Powers Act, which allows presidents to "regulate" the "importation" of property during emergencies. Does that vague language authorize what would effectively be the largest tax increase in modern American history? The Trade Court said no, especially since the Constitution explicitly gives tariff power to Congress.
What we're witnessing is essentially two conservative legal principles crashing into each other like freight trains. On one track: limiting executive agencies through the major questions doctrine. On the other: expansive presidential authority, especially in foreign affairs.
(I'll admit to finding a certain satisfaction in watching this collision unfold. Legal doctrines created for partisan advantage tend to have unpredictable afterlives.)
The Supreme Court now faces a moment of truth about its institutional credibility. Will the justices who enthusiastically embraced this doctrine to block Democratic priorities suddenly discover exceptions when it threatens Republican ones? Or will principle win out over preference?
Justice Kagan's warning in the EPA case seems particularly relevant: "The current court is textualist only when being so suits it." We're about to find out if she was right.
For investors and businesses, this legal uncertainty couldn't come at a worse time. Markets have already been pricing in the possibility of massive tariffs, with economists warning about potential recessions both here and abroad. If the Court ultimately strikes down the tariffs, we'd likely see a relief rally – followed by renewed anxiety about what alternative trade policies might emerge.
Look, I don't pretend to know how this ends. Constitutional principles and political realities have always had a complicated relationship. The Founders deliberately gave Congress the power to levy tariffs, understanding their economic significance. Now we're debating whether vague language in a 1970s law can override that design.
One thing I'm certain of, though – there's nothing quite like watching a legal doctrine come full circle to bite the hand that fed it.
