Learning Resources

Donald Trump on Friday met what is so far the most serious setback of his second term. In a case with the suggestive name of Learning Resources v. Trump, the supreme court ruled that the tariffs he had purported to levy under the authority of the International Emergency Economic Powers Act (IEEPA) were not in fact authorised by that act and were therefore invalid.

Politically the outcome itself is not such a bad one for Trump. It gives him another grievance – something that he thrives on – and it ensures that his most destructive tariffs either will not be levied at all, or will be levied (under the authority of other acts) with more care and consideration than before, limiting the amount of economic damage that they do. Tariffs as a sort of extortion by social media post will no longer be possible.

The bigger question, though, is what the case says about his relationship with the supreme court, whose future decisions will help determine just how much of his authoritarian program can be carried out. A tame supreme court (which many pundits, somewhat unfairly, have accused this one of being) is one of the most valuable assets a president can have; a stubborn one, willing to stand up to unlawful exercises of power, can bring a president down.

So it’s worth looking at just what happened in Learning Resources. The nine justices split evenly three ways (read all the opinions here). The three moderate conservatives, relying on something called the major questions doctrine, found that the IEEPA did not delegate power over tariffs to the president. The three liberals are at best sceptical of the major questions doctrine, but reached the same conclusion by, as they put it, “the ordinary tools of statutory interpretation.” And the three hard-line conservatives, although they support the major questions doctrine, denied that it applied in this case and therefore dissented, finding that the tariffs were valid.

The idea of the major questions doctrine is that if congress is going to delegate some major power – of which levying tariffs is a good example – it needs to say so in clear and unequivocal terms, more so than would be required for a minor or incidental power. It flourished under the Biden administration, when in cases like West Virginia v. EPA and Biden v. Nebraska the conservative majority on the court used it to strike down administrative actions that seemed to go beyond the intentions of the authorising legislation.

The liberal justices, not without some reason, formed the view that this was largely a ruse for frustrating Democrat policies, although depending on just how it’s interpreted it can also be seen as a common-sense aspect of normal statutory interpretation. (Amy Barrett, one of the moderate conservatives, suggests this in the present case.) But with a change in the presidency, the politics of deferring or not to the executive have flipped over.

To their credit, the three moderates stuck to their guns even at the cost of embarrassing a Republican president. Neil Gorsuch in a separate opinion wisely remarked that “if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.”

It would be a mistake to assume that this marks out the moderate justices as opponents of executive power in general. Their concern is more for the separation of powers: while they defend congress’s supremacy within its own sphere, they are also inclined to magnify the president’s powers over the executive. Hence the expansive definition of presidential immunity given in Trump v. United States, in which all six conservatives concurred (with some reservation on Barrett’s part).

So Learning Resources offers no particular comfort for future matters in which the scope of inherent presidential powers will be at issue, such as Trump’s ability to use the military and the justice department as his personal vehicles. But for responsibilities that the constitution allocates to congress – such as, critically, control of elections – it improves the odds that the court will strike down attempts at executive interference. As elections expert Rick Hasen puts it, “Any attempt for Trump to try to defend his exercise of executive powers over the conduct of congressional elections under state rules should fail for the same reason as his power over tariffs fails.”

It’s also worth noting that while Trump abused the majority judges for the decision and immediately reimposed some tariffs on the basis of other legislation, there was no hint that he would actually defy the ruling. The rule of law has been badly shaken over the last twelve months, but it is still standing.