Amicus Curiae Brief — Learning Resources, Inc., et al., Petitioners v. Donald J. Trump, President of the United States, et al.
Supreme Court briefOct 23, 2025
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Nos. 24-1287 and 25-250
In the
Supreme Court of the United States
LEARNING RESOURCES, INC., et al.,
Petitioners,
v.
DONALD J. TRUMP,
PRESIDENT OF THE UNITED STATES, et al.,
Respondents.
AND
DONALD J. TRUMP,
PRESIDENT OF THE UNITED STATES, et al.,
Petitioners,
v.
V.O.S. SELECTIONS, INC., et al.,
Respondents.
On writ of certiorari before judgment to the United
States Court of Appeals for the District of Columbia
Circuit and on writ of certiorari to the United States
Court of Appeals for the Federal Circuit
BRIEF OF THE INSTITUTE FOR POLICY
INTEGRITY AT NEW YORK UNIVERSITY
SCHOOL OF LAW AS AMICUS CURIAE
IN SUPPORT OF PETITIONERS IN NO.
24-1287 AND RESPONDENTS IN NO. 25-250
Richard L. Revesz
Counsel of Record
Donald L. R. Goodson
Kelly C. McGee
Max Sarinsky
Institute for Policy Integrity
139 MacDougal Street, 3rd Floor
New York, NY 10012
(212) 998-6567
richard.revesz@nyu.edu
Counsel for Amicus Curiae
386210
i
TABLE OF CONTENTS
Page
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv
INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I.
The Court Should Resolve Uncertainty In
The Lower Courts Over When The Major
Questions Doctrine Applies . . . . . . . . . . . . . . . . . 4
A. Lower courts have applied this Court’s
major questions precedents haphazardly
and far beyond the “extraordinary” case . . 5
1.
Courts apply different tests for
triggering the major questions
doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. T he do c t r i ne’s i nc on s i st ent
application risks outcome-driven
and anomalous results . . . . . . . . . . . . . . 8
B. Under this Court’s precedents, history,
breadth, and economic and political
significance are all required to trigger
the doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.
This Court’s precedents emphasize
history and breadth . . . . . . . . . . . . . . . 10
ii
Table of Contents
Page
2. Economic and political significance
are necessary but insufficient . . . . . . . 13
C. All factors signaling an “extraordinary
case” for the major questions doctrine
are present here . . . . . . . . . . . . . . . . . . . . . . 14
1.
The challenged tariffs are unheralded . . 14
2. The President’s interpretation of
IEEPA is transformative . . . . . . . . . . . 18
3. T he c h a l len g e d t a r i f f s a r e
econom ica l ly a nd pol it ica l ly
significant . . . . . . . . . . . . . . . . . . . . . . . . 19
II. The Court Should Also Resolve Uncertainty
In The Lower Courts Over Whether The
Major Questions Doctrine Is A Linguistic
Or Substantive Canon . . . . . . . . . . . . . . . . . . . . . 21
A. Lower courts have expressed uncertainty
over whether the doctrine is a linguistic
or substantive canon . . . . . . . . . . . . . . . . . . 21
B. Under this Court’s precedents, the major
questions doctrine operates as a
linguistic canon, not a substantive
clear-statement rule . . . . . . . . . . . . . . . . . . . 23
iii
Table of Contents
Page
III. The Court Should Also Clarify That There
Are No Carveouts To The Major Questions
Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
A. The major questions doctrine applies
to presidential acts under delegated
authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
B. The major questions doctrine applies
to delegated acts that implicate foreign
affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
C. Creating carveouts will repeat the errors
that led the Court to eliminate Chevron
deference . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
iv
TABLE OF CITED AUTHORITIES
Page
Cases
Ala. Ass’n of Realtors v. Dep’t of Health
& Hum. Servs. (Alabama Realtors),
594 U.S. 758 (2021) . . . . . . . . . . . . . . . 11, 13, 14, 19, 29
All. for Fair Bd. Recruitment v.
Sec. & Exch. Comm’n,
125 F.4th 159 (5th Cir. 2024) . . . . . . . . . . . . . . . . . 8, 22
Am. Forest Res. Council v. United States,
77 F.4th 787 (D.C. Cir. 2023),
cert. denied, 144 S. Ct. 1110 (2024) . . . . . . . . . . . . . . 27
Am. Lung Ass’n v. EPA,
985 F.3d 914 (D.C. Cir. 2021),
rev. and remanded sub nom. West Virginia v. EPA,
597 U.S. 697 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Baxter v. Becerra,
No. 3:23-CV-92 (RCY), 2024 WL 627262
(E.D. Va., Feb. 14, 2024),
aff’d sub nom. Baxter v. Kennedy,
136 F.4th 70 (4th Cir. 2025) . . . . . . . . . . . . . . . . . . . . 22
Biden v. Missouri,
595 U.S. 87 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Biden v. Nebraska,
600 U.S. 477 (2023) . . . . 3, 10, 11, 13, 14, 16, 17, 21-24, 29
v
Cited Authorities
Page
Bradford v. U.S. Dep’t of Labor,
101 F.4th 707 (10th Cir. 2024) . . . . . . . . . . . . . . . . . . . 22
Clinton v. Jones,
520 U.S. 681 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Colorado v. U.S. Dep’t of Health & Hum. Servs.,
788 F. Supp. 3d 277 (D.R.I. 2025) . . . . . . . . . . . . . . . . 7
Davis v. Michigan Dep’t of Treasury,
489 U.S. 803 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Fed. Commc’ns Comm’n v. Consumers’ Rsch.,
145 S. Ct. 2482 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . 27
Food & Drug Admin. v.
Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . 5, 10, 24, 28
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,
561 U.S. 477 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Georgia v. President of the United States,
46 F.4th 1283 (11th Cir. 2022) . . . . . . . . . . . . . . . 22, 27
Gonzales v. Oregon,
546 U.S. 243 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Gregory v. Ashcroft,
501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
vi
Cited Authorities
Page
In re MCP No. 185,
No. 24-7000, 2024 WL 3650468
(6th Cir. Aug. 1, 2024) . . . . . . . . . . . . . . . . . . . . . . . 6, 22
Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Kansas v. Kennedy,
787 F. Supp. 3d 906 (N.D. Iowa 2025) . . . . . . . . . . . . . 7
Kaweah Delta Health Care Dist. v. Becerra,
No. CV 20-6564-CBM-SP(X),
2022 WL 18278175 (C.D. Cal. Dec. 22, 2022),
aff’d in part, vacated in part
123 F.4th 939 (9th Cir. 2024) . . . . . . . . . . . . . . . . 6, 7, 9
Kentucky v. Biden,
23 F.4th 585 (6th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 27
King v. Burwell,
576 U.S. 473 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) . . . . . . . . . . . . . . . . 4, 25, 26, 29-31
Louisiana v. Becerra,
20 F.4th 260 (5th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 12
Louisiana v. Biden,
55 F.4th 1017 (5th Cir. 2022) . . . . . . . . . . . . . . . . . 26, 27
vii
Cited Authorities
Page
Luvian v. Bondi,
No. 25-CV-04035-TLT, 2025 WL 1616538
(N.D. Cal. June 7, 2025) . . . . . . . . . . . . . . . . . . . . . 9, 10
Mayes v. Biden,
67 F.4th 921 (9th Cir. 2023),
vac. as moot, 89 F.4th 1186 (9th Cir. 2023) . . . . . . . 27
Mayfield v. U.S. Dep’t of Lab.,
117 F.4th 611 (5th Cir. 2024) . . . . . . . . . . . . . . . . 7, 8, 22
MCI Telecomms. Corp. v.
Am. Telephone & Telegraph Co.,
512 U.S. 218 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
N.C. Coastal Fisheries Reform Grp. v.
Capt. Gaston LLC,
76 F.4th 291 (4th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 23
Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab. (NFIB),
595 U.S. 109 (2022) . . . . . . . . . . . . . . . . . . . . . . . . 11, 29
Nuclear Regul. Comm’n v. Texas,
605 U.S. 665 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Save Jobs USA v. U.S. Dep’t of
Homeland Sec., Off. of Gen. Couns.,
111 F.4th 76 (D.C. Cir. 2024),
cert. denied, No. 24-923, 2025 WL 2906616
(Oct. 14, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
viii
Cited Authorities
Page
Seila Law LLC v. Consumer Fin. Prot. Bureau,
591 U.S. 197 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
State v. Su,
121 F.4th 1 (9th Cir. 2024) . . . . . . . . . . . . . . . . 8, 23, 27
Texas v. Biden,
694 F. Supp. 3d 851 (S.D. Tex. 2023),
vacated as moot Texas v. Trump,
No. 23-40671, 2025 WL 968277
(5th Cir. Mar. 28, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . 7
Texas v. Nuclear Regul. Comm’n,
78 F.4th 827 (5th Cir. 2023),
rev’d, 605 U.S. 665 (2025) . . . . . . . . . . . . . . . . . . . . . 6, 8, 12
Trump v. United States,
603 U.S. 593 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
United States v.
Cal. Stem Cell Treatment Ctr., Inc.,
117 F.4th 1213 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . . . 8
United States v. Rahimi,
602 U.S. 680 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Yoshida Int’l, Inc.,
526 F.2d 560 (C.C.P.A. 1975) . . . . . . . . . . . . . 16, 17, 28
Util. Air Regul. Grp. v. EPA,
573 U.S. 302 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 11, 13
ix
Cited Authorities
Page
West Virginia v. EPA,
597 U.S. 697 (2022) . . . 2-5, 9-13, 16, 18, 20, 21, 23-25, 29, 30
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Zivotofsky ex rel. Zivotofsky v. Kerry,
576 U.S. 1 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 29
Constitutional Provisions
U.S. Const. art. I, § 8, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . 28
Statutes
19 U.S.C. § 1862 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
19 U.S.C. § 2251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
19 U.S.C. § 2411 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
19 U.S.C. § 2414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
20 U.S.C. § 1098bb(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 29
29 U.S.C. § 655(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
42 U.S.C. § 264(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
x
Cited Authorities
Page
Executive Orders
Exec. Order No. 14,008,
86 Fed. Reg. 7619 (Feb. 1, 2021) . . . . . . . . . . . . . . . . 30
Exec. Order No. 14,257,
90 Fed. Reg. 15,041 (Apr. 7, 2025) . . . . . . . . . . . . . . . 17
Other Authorities
Amy Coney Barrett, Substantive Canons and
Faithful Agency, 90 B.U. L. Rev. 109 (2010) . . . 21, 22
Br. for Pet’r N. Am. Coal Corp., West Virginia v. EPA,
597 U.S. 697 (2022) (No. 20-1530) . . . . . . . . . . . . . . . 25
Br. of Richard L. Revesz as Amicus Curiae in
Supp. of Resp’ts, West Virginia v. EPA,
597 U.S. 697 (2022) (No. 20-1530) . . . . . . . . . . . . . . . . 2
Br. of the Inst. for Pol’y Integrity as Amicus Curiae in
Supp. of Defs.-Appellees, Utah v. Su, 109 F.4th 313
(5th Cir. 2024) (No. 23-11097) . . . . . . . . . . . . . . . . . 1, 2
Natasha Brunstein & Donald L. R. Goodson,
Unheralded and Transformative: The Test
for Major Questions After West Virginia,
47 Wm. & Mary Env’t L. & Pol’y Rev. 47 (2022) . . . . 1, 8
Natasha Br unstein & Richard L. Revesz,
Mangling the Major Questions Doctrine,
74 Admin. L. Rev. 217 (2022) . . . . . . . . . . . . . . . . . . . . 1
xi
Cited Authorities
Page
Nat a sha Br u nst ei n, Majo r Q u esti o n s in
Lower Courts, 75 Admin. L. Rev. 661 (2023) . . . 2, 8, 9
Christopher A. Casey et al., Cong. Rsch. Serv.,
R45618, The International Emergency Economic
Powers Act: Origins, Evolution, and Use (2025),
https://perma.cc/Q7V3-V958 . . . . . . . . . . . . . 15, 16, 18
H.R. 505, 119th Cong. (2025) . . . . . . . . . . . . . . . . . . . . . .20
Douglas A. Irwin, The Nixon Shock After Forty
Years: The Import Surcharge Revisited,
12 World Trade Rev. 29 (2013) . . . . . . . . . . . . . . . . . . 17
Timothy Meyer & Ganesh Sitaraman, The National
Security Consequences of the Major Questions
Doctrine, 122 Mich. L. Rev. 55 (2023) . . . . . . . . . . . 31
Saikrishna B. Prakash & Michael D. Ramsey,
The Executive Power over Foreign Affairs,
111 Yale L.J. 231 (2001) . . . . . . . . . . . . . . . . . . . . . . . 28
Richard L. Revesz & Max Sarinsky, Regulatory
Antecedents and the Major Questions Doctrine,
36 Geo. Env’t L. Rev. 1 (2023) . . . . . . . . . . . . . . . . . . . 1
S.J. Res. 49, 119th Cong. (2025) . . . . . . . . . . . . . . . . . . . 20
Cass R. Sunstein, There Are Two “Major Questions”
Doctrines, 73 Admin. L. Rev. 475 (2021) . . . . . . . . . 21
xii
Cited Authorities
Page
Trade Review Act of 2025, S. 1272,
119th Cong. (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States: Datasets, Int’l Monetary Fund (last
updated Oct. 2025), https://perma.cc/W8NV-PU8P . . 20
Brock R. Williams et al., Cong. Rsch. Serv.,
R45529, Tr ump Administration Tar if f
Actions: Frequently Asked Questions 10 (2020),
https://perma.cc/34YN-EHRP . . . . . . . . . . . . . . . . . 15
Erika York & Alex Durante, Trump Tariffs:
Tracking the Economic Impact of the Trump
Trade War, Tax Foundation (Oct. 3, 2025),
https://perma.cc/3AJM-NBJ9 . . . . . . . . . . . . 17, 19, 20
1
INTEREST OF AMICUS CURIAE
The Institute for Policy Integrity at New York
University School of Law (Policy Integ rity)1 is a
nonpartisan, not-for-profit think tank dedicated to
improving the quality of government decisionmaking
through advocacy and scholarship in the fields of
administrative law, economics, and public policy. 2
Policy Integrity has produced extensive scholarship
on administrative law. Our faculty director, Professor
Richard L. Revesz, is one of the nation’s most cited
environmental and administrative law scholars, having
published more than 100 articles and books in the field.
Of relevance here, Revesz and Policy Integrity staff have
published extensively on the major questions doctrine.
E.g., Richard L. Revesz & Max Sarinsky, Regulatory
Antecedents and the Major Questions Doctrine, 36 Geo.
Env’t L. Rev. 1 (2023); Natasha Brunstein & Donald L.
R. Goodson, Unheralded and Transformative: The Test
for Major Questions After West Virginia, 47 Wm. &
Mary Env’t L. & Pol’y Rev. 47 (2022); Natasha Brunstein
& Richard L. Revesz, Mangling the Major Questions
Doctrine, 74 Admin. L. Rev. 217 (2022). Revesz and Policy
Integrity have also filed amicus curiae briefs in litigation
involving the major questions doctrine, e.g., Br. of the Inst.
for Pol’y Integrity as Amicus Curiae in Supp. of Defs.1. Per Supreme Court Rule 37.6, no party’s counsel authored
this brief wholly or partly, and no entity or person outside of
amicus curiae contributed money intended to fund its preparation
or submission.
2. This brief does not purport to represent the views, if any,
of New York University School of Law.
2
Appellees, Utah v. Su, 109 F.4th 313 (5th Cir. 2024) (No.
23-11097); Br. of Richard L. Revesz as Amicus Curiae in
Supp. of Resp’ts, West Virginia v. EPA, 597 U.S. 697 (2022)
(No. 20-1530), including in the district- and appellate-court
proceedings at issue here.
In a previous amicus curiae brief filed in this Court,
we emphasized the importance of providing workable
standards for applying the major questions doctrine. Br.
of Richard L. Revesz, supra, at 2. This Court did so in
West Virginia v. EPA, 597 U.S. 697 (2022). Yet many lower
courts have since employed the major questions doctrine
inconsistently with that precedent—sometimes applying
it to actions that are hardly “extraordinary.” Id. at 723.
Accordingly, Policy Integrity submits this brief to urge
the Court to further clarify the doctrine’s contours and
thereby help ensure its consistent and proper application
in lower courts.
SUMMARY OF ARGUMENT
I. The major questions doctrine has generated
substantial confusion in lower courts. See Natasha
Brunstein, Major Questions in Lower Courts, 75 Admin.
L. Rev. 661 (2023). This case presents a prime opportunity
for the Court to clear up the confusion.
Since West Virginia, courts have taken many different
approaches to determine whether the doctrine applies.
Some have even been inconsistent from one case to the
next. Most notably, courts often rely on the challenged
action’s economic and political significance alone,
extending the doctrine to routine actions. This haphazard
application produces results that are unpredictable and
often appear outcome-driven.
3
This Court’s precedents, however, already provide
guideposts—many lower courts just appear to have
missed them. Major questions decisions from this Court
have looked to history, breadth, and significance to
determine whether the doctrine applies—requiring, in
essence, an unheralded and transformative exercise of
power in addition to economic and political significance.
Given the widespread confusion in lower courts, this Court
should now reemphasize those triggers.
The President’s reliance on the International
Emergency Economic Powers Act (IEEPA) to impose
the tariffs at issue here meets these requirements. It is
unheralded, transformative, and of vast economic and
political significance. Indeed, if this case does not call for
applying the doctrine, it is unclear what would.
II. Lower courts have also struggled to reconcile the
“ongoing debate” over the “source and status” of the major
questions doctrine. Biden v. Nebraska, 600 U.S. 477, 507
(2023) (Barrett, J., concurring). Some treat the doctrine as
a substantive canon or, more specifically, a clear-statement
rule that puts a thumb on the scale; others, as a linguistic
canon that aids in finding the best reading of the statute.
Still others have acknowledged the confusion and not
taken a position. Only this Court can resolve this debate.
Again, the answer lies in this Court’s precedents.
Those decisions do not put a thumb on the scale favoring
(or disfavoring) a particular reading. Instead, they require
“clear congressional authorization,” which demands more
than a “merely plausible” statutory basis but also does not
require magic words. West Virginia, 597 U.S. at 722–23,
732–36. Properly understood, this requirement helps a
4
court discern, not depart from, the “best meaning” of
the statute, Loper Bright Enters. v. Raimondo, 603 U.S.
369, 400 (2024), thereby functioning as a linguistic canon
rather than a clear-statement rule.
III. This Court has never suggested any carveout to
the major questions doctrine for actions by the President
or related to foreign affairs or national security—and
should not create one now. Actions taken by the President
do not merit a more lenient interpretive standard than
those taken by agencies, as the President is responsible for
the actions of Executive Branch officials. Nor are actions
relating to foreign affairs a safe harbor: Delegated foreign
affairs powers remain subject to “the ordinary controls
and checks of Congress,” Zivotofsky ex rel. Zivotofsky v.
Kerry, 576 U.S. 1, 21 (2015), and so unprecedented and
extraordinary statutory claims in that realm warrant
similar skepticism. That is especially true here, where
the Constitution grants Congress the power to impose
import taxes. Moreover, prior actions subject to major
questions review have similarly implicated foreign affairs
or emergency powers.
Creating doctr inal car veouts would also sow
uncertainty and impede administrability—concerns
that plagued the Chevron doctrine and contributed to its
demise. The Court should not repeat those mistakes here.
ARGUMENT
I.
The Court Should Resolve Uncertainty In The
Lower Courts Over When The Major Questions
Doctrine Applies.
Well over 100 lower-court decisions have applied the
major questions doctrine since West Virginia. Those
5
opinions diverge widely. Some imply that the major
questions doctrine is easily triggered; others state a more
demanding test. Scholars have also observed that lower
courts appear to apply the major questions doctrine in line
with the policy preferences of the party of the President
who nominated the deciding judge. Given this uncertainty,
inconsistency, and perceived outcome-oriented flexibility,
further clarity is needed from this Court.
This Court’s decisions already furnish the necessary
contours. They provide that the major questions doctrine
is triggered when the challenged action (1) is unheralded,
(2) transforms the government actor’s role, and (3) is of
vast economic and political significance. But lower courts
do not consistently apply these requirements. Given this
inconsistency in the lower courts, this Court should take
the opportunity to clarify the factors that trigger the
major questions doctrine.
The major questions doctrine is triggered here
because the challenged tariffs meet all three factors.
In other words, “this is a major questions case.” West
Virginia, 597 U.S. at 724.
A.
Lower courts have applied this Court’s major
questions precedents haphazardly and far
beyond the “extraordinary” case.
This Court has explained that the major questions
doctrine applies only in “extraordinary cases.” Id. at 721
(quoting Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 159 (2000)). But lower
courts have applied the doctrine inconsistently and often
in undisciplined ways. This uneven application has also
created the appearance of outcome-driven results.
6
1.
Courts apply different tests for triggering
the major questions doctrine.
In assessing whether the major questions doctrine
applies, some decisions focus mainly or exclusively on
economic and political significance—finding that when the
government action at issue implicates “a question of vast
economic and political significance, it is a major question.”
In re MCP No. 185, No. 24-7000, 2024 WL 3650468, at *3
(6th Cir. Aug. 1, 2024) (per curiam) (cleaned up).
For example, the Fifth Circuit applied a singletrigger test in concluding that the Nuclear Regulatory
Commission lacks authority to license certain private
storage facilities for spent nuclear fuel. Texas v. Nuclear
Regul. Comm’n, 78 F.4th 827, 844 (5th Cir. 2023), rev’d
on other grounds, 605 U.S. 665 (2025). In a two-sentence
analysis, the court determined that the major questions
doctrine applied because “[w]hat to do with the nation’s
ever-growing accumulation of nuclear waste . . . has been
hotly politically contested for over a half century.” Id. The
Fifth Circuit’s unidimensional analysis did not consider
that “history and precedent offer significant support for
the Commission’s longstanding interpretation”—facts
this Court emphasized when overturning the appellate
decision on other grounds. Nuclear Regul. Comm’n v.
Texas, 605 U.S. 665, 683 (2025).
Similar examples abound. To give just a few: In 2022,
a court applied the major questions doctrine to a Medicare
rule issued under the first Trump Administration simply
because it constituted a “major policy decision[].” Kaweah
Delta Health Care Dist. v. Becerra, No. CV 20-6564-CBMSP(X), 2022 WL 18278175, at *9 (C.D. Cal. Dec. 22,
7
2022), aff’d in part on other grounds, vacated in part
123 F.4th 939 (9th Cir. 2024). In 2023, a court applied the
doctrine to a minimum-wage directive issued under the
Biden Administration because it “significantly affects
the economy.” Texas v. Biden, 694 F. Supp. 3d 851, 869
(S.D. Tex. 2023), vacated as moot Texas v. Trump, No.
23-40671, 2025 WL 968277 (5th Cir. Mar. 28, 2025). And
earlier this year, a court applied the doctrine to the second
Trump Administration’s rescission of various COVIDrelated public health grants, pointing principally to the
policy’s economic and political significance. Colorado v.
U.S. Dep’t of Health & Hum. Servs., 788 F. Supp. 3d 277,
302 (D.R.I. 2025).
Other courts include factors beyond economic and
political significance, but vary in their approaches. Some
decisions apply a three-part, disjunctive test, asking
whether the challenged action is “of great political
significance,” “require[s] billions of dollars” in private
spending, or “seeks to intrude into” traditional state-law
domains. E.g., Mayfield v. U.S. Dep’t of Lab., 117 F.4th 611,
616 (5th Cir. 2024) (citation omitted) (stating that “each” of
the three factors “independently trigger[s] the doctrine”).
Others apply a multi-factor balancing test. E.g., Kansas
v. Kennedy, 787 F. Supp. 3d 906, 930–31 (N.D. Iowa 2025)
(finding that different factors counseled in different
directions and concluding that, “[o]n balance,” a challenge
to a Medicaid staff rule presented “an extraordinary
case”).
In contrast to those formulations, numerous decisions
apply a conjunctive test that requires the history (i.e.,
unprecedented nature of the action), breadth (i.e.,
transformation of the actor’s role), and economic and
8
political significance of the challenged action each to call
for caution. E.g., United States v. Cal. Stem Cell Treatment
Ctr., Inc., 117 F.4th 1213, 1221 (9th Cir. 2024); State v.
Su, 121 F.4th 1, 14 (9th Cir. 2024) (“If both prongs [i.e.,
(1) history and breadth, and (2) significance] are met, the
major questions doctrine applies . . . .”). As described
below, this test is consistent with this Court’s precedents.
See infra Sec. I.B.
The “vastly different approaches to defining and
applying the doctrine” appear not only “across circuits”
but also even “within” them. Brunstein, supra, at 663. For
instance, the Fifth Circuit applied three different versions
of the major questions test in a span of 16 months. First,
in August 2023, it focused exclusively on economic and
political significance. See Texas, 78 F.4th at 844. Next, in
September 2024, it applied the three-factor disjunctive
test noted above. See Mayfield, 117 F.4th at 616. Finally,
in December 2024, it applied a conjunctive test assessing
history, breadth, and economic and political significance.
See All. for Fair Bd. Recruitment v. Sec. & Exch. Comm’n,
125 F.4th 159, 180–83 (5th Cir. 2024) (en banc).
Inconsistent application of the major questions
doctrine creates significant uncertainty for regulated
individuals and businesses, litigants, and policymakers.
2.
The doctrine’s inconsistent application
risks outcome-driven and anomalous
results.
Uncertainty over the major questions doctrine’s
requirements—and their perceived f lexibility—has
also created the appearance of outcome-driven results.
9
For example, within 15 months of West Virginia, 21
opinions considered the doctrine in response to Biden
Administration actions. Of these, “eight involved
Democratic appointees upholding Biden Administration
agency actions or executive orders, and nine of these
cases involved Republican appointees invalidating Biden
Administration agency actions or executive orders.”
Brunstein, supra, at 667.
Inconsistent and unprincipled application of the
major questions doctrine also risks applying the doctrine
well beyond the extraordinary case. In fact, numerous
lower-court decisions have already applied the doctrine
expansively. For instance, in 2022, a federal court invoked
the doctrine after the first Trump Administration adjusted
the Medicare reimbursement schedule by reducing
inpatient hospital payments by 0.2016%. See Kaweah, 2022
WL 18278175, at *4, *9. While that adjustment resulted
in a cut of only $3.8 million to the plaintiffs, id. at *4,
the court reasoned that it constituted a “‘major policy
decision[]’ and a ‘fundamental’ change” in the statute, with
little additional analysis. Id. at *8 (quoting West Virginia,
597 U.S. at 723).
And this June, another court found that the federal
government’s legal position in support of removing a
noncitizen who had “conceded removability” ran afoul
of the major questions doctrine. Luvian v. Bondi, No.
25-CV-04035-TLT, 2025 WL 1616538, at *2 (N.D. Cal.
June 7, 2025); see also id. at *4. Specifically, the court
concluded that the government’s attempt to terminate
removal proceedings and proceed to deportation
without judicial review because the noncitizen “had been
previously removed from the United States pursuant to
10
a valid removal order” constituted a transformative and
unprecedented expansion of authority. Id. at *2, *4–5.
To prevent anomalous and outcome-driven decisions,
further guidance from this Court is necessary on when
the major questions doctrine applies.
B. Under this Court’s precedents, history, breadth,
and economic and political significance are all
required to trigger the doctrine.
Despite lower courts’ inconsistent application of
the major questions doctrine, this Court’s decisions
already indicate when the doctrine applies. Repeatedly,
this Court has emphasized that three factors—history,
breadth, and significance—must each “provide a ‘reason
to hesitate before concluding that Congress’ meant to
confer” the authority asserted. West Virginia, 597 U.S. at
721 (quoting Brown & Williamson, 529 U.S. at 159–60);
accord Nebraska, 600 U.S. at 501. Specifically, the doctrine
applies where an “unheralded” government action
“transform[s]” the delegated authority of the relevant
actor and has great “economic and political significance.”
West Virginia, 597 U.S. at 721, 724 (citation omitted). The
Court should take this opportunity to reiterate that this
is the proper test.
1.
This Court’s precedents emphasize history
and breadth.
This Court’s major questions analyses have always
examined the history and the breadth of the asserted
authority.
11
Take West Virginia, this Court’s most thorough
discussion of the doctrine. There, “a major questions
case” was present because the Environmental Protection
Agency (EPA) “‘claim[ed] to discover in a long-extant
statute [1] an unheralded power’ [2] representing a
‘transformative expansion in [its] regulatory authority.’”
Id. at 724 (quoting Util. Air Regul. Grp. v. EPA, 573
U.S. 302, 324 (2014)). The Court first addressed why the
challenged action was “unheralded,” see id. at 724–28,
and next addressed why that action also represented a
“transformative” change in EPA’s authority, see id. at
728–32. Biden v. Nebraska, 600 U.S. 477 (2023), similarly
first addressed history and breadth in its analysis of the
major questions doctrine. See id. at 501–02.
When looking to history, this Court has asked whether
the challenged action has a comparable antecedent under
the relevant statutory provision. In West Virginia, the
Court began its application of the major questions doctrine
by concluding that EPA fundamentally departed from
“prior Section 111 rules” in issuing the Clean Power
Plan, making the action “unheralded.” 597 U.S. at 724,
726. Other major questions cases similarly focus on the
unprecedented nature of the government action. E.g.,
Nebraska, 600 U.S. at 501–02 (stressing that the agency
had “never previously claimed powers of this magnitude
under” the operative statute); Nat’l Fed’n of Indep. Bus. v.
Dep’t of Lab. (NFIB), 595 U.S. 109, 119 (2022) (per curiam)
(highlighting that the agency “never before adopted a
broad public health regulation of this kind”); Ala. Ass’n
of Realtors v. Dep’t of Health & Hum. Servs. (Alabama
Realtors), 594 U.S. 758, 765 (2021) (per curiam) (noting
that the government’s claim of “expansive authority” was
12
“unprecedented” over the relevant provision’s 77-year
history). 3
In contrast, when this Court has declined the
invitation to apply the major questions doctrine, it has
highlighted the challenged action’s consistency with past
practice. For example, after the Fifth Circuit cited the
major questions doctrine when invalidating a vaccine
mandate for staff at Medicare and Medicaid providers,
Louisiana v. Becerra, 20 F.4th 260, 262 (5th Cir. 2021), this
Court upheld the requirement, noting that the government
“routinely imposes [similar] conditions of participation”
in those programs, Biden v. Missouri, 595 U.S. 87, 94
(2022) (per curiam). Similarly, the Fifth Circuit invoked
the major questions doctrine in holding unlawful the
Nuclear Regulatory Commission’s licensing of off-site
storage, Texas, 78 F.4th at 844; this Court cast doubt on
that analysis by emphasizing “50 years” of precedent for
that licensing program, Texas, 605 U.S. at 683 (reversing
on threshold issues).
When looking to breadth, this Court has asked
whether the challenged action would transform the
government actor’s authority relative to previous
applications or understandings. In West Virginia, after
concluding that the challenged action was unheralded, the
Court next discussed how it also “effected a ‘fundamental
3. Of course, the government need not identify an identical
antecedent, as new actions will rarely be identical to previous ones.
Cf. United States v. Rahimi, 602 U.S. 680, 692 (2024) (explaining,
in a separate context, that courts should not insist on a “historical
twin” to justify current government action (citation omitted)).
Rather, this Court’s analyses suggest that the relevant antecedent
must be an analogous exercise of authority.
13
revision of the statute, changing it from one sort of scheme
of regulation’ into an entirely different kind.” 597 U.S. at
728 (alterations omitted) (quoting MCI Telecomms. Corp.
v. Am. Telephone & Telegraph Co., 512 U.S. 218, 231
(1994)). Specifically, the challenged rule was predicated
on a “different kind of policy judgment” than prior EPA
actions: how to distribute “national electricity generation”
among energy sources rather than how to limit pollution
at “each individual regulated source.” Id. In Nebraska,
this Court concluded that the government’s reading of the
relevant statute would effectively permit the Secretary of
Education to “unilaterally define every aspect of federal
student financial aid,” 600 U.S. at 502, similarly effecting
a “fundamental revision of the statute,” id. (quoting West
Virginia, 597 U.S. at 728).
2.
Economic and political significance are
necessary but insufficient.
This Court has also emphasized the “vast economic
and political significance” of the challenged action when
invoking the major questions doctrine. E.g., West Virginia,
597 U.S. at 716 (quoting Util. Air Regul. Grp., 573 U.S.
at 324). In Nebraska, this Court emphasized that the
“economic and political significance of the [challenged]
action is staggering by any measure,” noting that it would
“cost taxpayers between $469 billion and $519 billion.” 600
U.S. at 502 (cleaned up). In Alabama Realtors, the Court
emphasized the “sheer scope” of the claimed authority
and cited $50 billion as a reasonable impact estimate. 594
U.S. at 764.
But economic and political significance alone have
never sufficed to trigger the doctrine. For instance, while
the size of the student-loan cancellation program played a
14
role in Nebraska, see 600 U.S. at 502–03, this Court first
addressed its history and breadth, see id. at 501–02. In
Alabama Realtors, this Court likewise emphasized the
eviction moratorium’s “unprecedented” nature and the
“breathtaking amount of authority” it would allow. 594
U.S. at 764–65. A major questions test that turned purely
on economic and political significance would undeniably be
triggered here, see infra Sec. I.C.3, but such an application
would miss such key questions as how Presidents have
previously invoked IEEPA.
This Court’s three-pronged analysis—considering
histor y, breadth, and signif icance —makes sense
given that the major questions doctrine applies only
in “extraordinary” cases. Many federal actions can be
described as economically and politically significant; for
instance, the large scope of many government programs
(such as Medicare) means that cases concerning those
programs often involve billions of dollars in spending or
costs. Yet far fewer are unprecedented or represent a
transformative change in authority.
C.
All factors signaling an “extraordinary case”
for the major questions doctrine are present
here.
This is an extraordinary case that triggers the
major questions doctrine, as the challenged tariffs
are unheralded, transformative, and economically and
politically significant.
1.
The challenged tariffs are unheralded.
The challenged tariffs are both of a different character
and far broader in scope than prior actions taken under
IEEPA.
15
In the nearly half-century since Congress enacted
IEEPA, no President had ever used it to impose a tariff.
Christopher A. Casey et al., Cong. Rsch. Serv., R45618,
The International Emergency Economic Powers Act:
Origins, Evolution, and Use 60 (2025), https://perma.cc/
Q7V3-V958. Rather, past Presidents have used IEEPA
only to impose targeted economic sanctions in response to
relatively narrow emergencies, like import bans and asset
freezes. See id. at 30–32; see also id. at App. A (listing
every past use of IEEPA). As of January 2025, Presidents
had declared 70 national emergencies invoking IEEPA,
id. at 69–73, but “no President had used IEEPA to impose
tariffs,” id. at 60.
Even President Trump during his first term used
IEEPA as his predecessors had: to impose targeted
economic sanctions like asset freezes in response to
relatively narrow emergencies. See id. at 72–73 (listing
uses from 2017–2020). When he sought to impose tariffs on
imports from China, he relied on Section 301 of the Trade
Act of 1974, 19 U.S.C. § 2411. Brock R. Williams et al.,
Cong. Rsch. Serv., R45529, Trump Administration Tariff
Actions: Frequently Asked Questions 10 (2020), https://
perma.cc/34YN-EHRP. When he sought to impose tariffs
on steel and aluminum imports, he relied on Section 232
of the Trade Expansion Act of 1962, 19 U.S.C. § 1862. Id.
at 9. When he sought to impose tariffs on solar cells and
washing machines, he relied on Section 201 of the Trade
Act of 1974, 19 U.S.C. § 2251. Id. at 8. These statutes all
require the government to follow specific procedures
before imposing tariffs—procedures President Trump
followed in his first term but not here.4
4. True, President Trump threatened to impose tariffs under
IEEPA during his first term, but he never carried out the threat.
See Casey et al., supra, at 60 n.460. The fact thus remains that,
16
To be sure, President Nixon relied on a predecessor
emergency statute, the Trading with the Enemy Act
(TWEA), to impose a 10% ad valorem tariff on a limited
subset of imports. See Casey et al., supra, at 6 & n.46,
63–64. But this Court has not considered actions taken
under another statute when assessing whether an action is
unheralded for major questions purposes. West Virginia,
for example, did not consider EPA actions issued under
other Clean Air Act provisions in its “unheralded”
analysis. 597 U.S. at 726 n.1 (rejecting the relevance of
similar EPA actions that “were not Section 111 rules”); see
also Nebraska, 600 U.S. at 502 (focusing on “regulation[s]
premised on the HEROES Act” (cleaned up)). While
government actions taken under “other provisions” may
be relevant for assessing whether clear congressional
authorization is present, West Virginia, 597 U.S. at 732,
those actions do not inform the “unheralded” analysis
under this Court’s precedents.
Moreover, even if this Court finds that actions analyzed
under TWEA are relevant to the “unheralded” inquiry,
President Nixon’s actions were far more “modest and
narrow in scope” than President Trump’s. Nebraska, 600
U.S. at 501. President Nixon imposed a 10% ad valorem
charge on only those “dutiable” articles that had been
subject to earlier tariff concessions, with the total rate not
to exceed that prescribed in the Tariff Schedules. United
States v. Yoshida Int’l, Inc., 526 F.2d 560, 577–78 (C.C.P.A.
1975). In upholding President Nixon’s actions, the U.S.
Court of Customs and Patent Appeals underscored that
until now (and certainly not before President Trump), no previous
President had ever invoked IEEPA to impose tariffs, much less
the sweeping tariffs at issue here. Id. at 60.
17
it did not “sanction the exercise of an unlimited power.”
Id. at 583. Instead, it emphasized that the tariffs were
“limited,” “temporary,” and did not “supplant the entire
tariff scheme of Congress.” Id. at 578 (citation omitted).
President Trump’s tariffs, in contrast, are essentially
unlimited. The order imposing reciprocal tariffs, for
example, imposed a 10% ad valorem duty on “all imports
from all trading partners” (subject to some productspecific exceptions), and higher rates up to 50% on 57
countries, far exceeding the existing tariff schedule. Exec.
Order No. 14,257, 90 Fed. Reg. 15,041, 15,045 & Annex
I (Apr. 7, 2025). The order specified that the rates would
continue indefinitely, until the President determined
that the conditions they were intended to rectify were
“satisfied, resolved, or mitigated.” Id. at 15,045.
Moreover, President Nixon’s tariffs raised $485 million
in revenue (or about $3.8 billion in 2025 dollars) before they
were terminated less than a year after being adopted. See
Douglas A. Irwin, The Nixon Shock After Forty Years:
The Import Surcharge Revisited, 12 World Trade Rev.
29, 46 n.16 (2013). President Trump’s tariffs, on the other
hand, are estimated to increase federal tax revenue by
more than $170 billion in 2025 alone. Erika York & Alex
Durante, Trump Tariffs: Tracking the Economic Impact
of the Trump Trade War, Tax Foundation (Oct. 3, 2025),
https://perma.cc/3AJM-NBJ9. Thus, even if actions under
TWEA provided a relevant comparison for “unheralded”
purposes for actions under IEEPA, no President has ever
“previously claimed powers of this magnitude” under
either statute. Nebraska, 600 U.S. at 501.
Because, in its nearly 50-year history, IEEPA has
never been used to impose tariffs—much less any other
18
actions approaching the scale of the challenged tariffs—
President Trump’s use of IEEPA here is unheralded.
2.
The President’s interpretation of IEEPA
is transformative.
The President’s use of IEEPA is also transformative:
It turns a statute used to provide surgical tools for narrow
sanctions during national emergencies into the power to
override all of Congress’s carefully drawn trade statutes,
effectively appropriating Congress’s authorities over
foreign taxation as his own.
As noted above, Presidents have previously used
IEEPA to impose targeted trade restrictions meant to
address specific threats posed by hostile actors or illicit
trade. For instance, previous invocations of IEEPA have
been targeted sanctions (not tariffs) that: (1) concerned
certain goods such as chemical and biological weapons,
rough diamonds, and weapons of mass destruction; or
(2) addressed international crises or hostile actors by
blocking property to groups such as transnational criminal
organizations, those engaging in malicious cyber-enabled
activities, or persons contributing to foreign conflicts. See
Casey et al., supra, at App. A. As opposed to these surgical
and targeted uses, the President is now attempting to
use the IEEPA tariffs to reduce trade deficits, enhance
American manufacturing capacity, and expand domestic
job opportunities, fundamentally transforming the statute
into a blank check to rebalance international trade and
manage the domestic economy. See Gov’t Br. 6–9. This
would effect a “fundamental revision of the statute,”
asserting it for “an entirely different kind” of authority.
West Virginia, 597 U.S. at 728 (citation omitted).
19
The President’s assertion of this authority is
particularly transformative because Congress has
already enacted multiple trade statutes that authorize
tariffs only in certain circumstances (e.g., specifying
industries, countries, or criteria) and after following
specified procedures. For example, Section 301 of the
Trade Act of 1974 authorizes tariffs on countries that
violate certain trade agreements, but only after the
U.S. Trade Representative satisfies various processes
including conducting an investigation and making detailed
factual findings. 19 U.S.C. § 2414. While these statutes
delegate broad tariff-setting authority, that authority is
circumscribed by procedural and substantive limitations
and is narrower than the President’s claimed power under
IEEPA. Interpreting IEEPA to give the President a blank
check to reduce trade deficits would render Congress’s
many other carefully drawn trade statutes basically
superfluous.
3.
The challenged tariffs are economically
and politically significant.
Although there is no precise threshold for economic
significance, the anticipated effects of the President’s
tariffs surpass those deemed significant in prior major
questions cases. As one reference point, Alabama
Realtors found significant the roughly one-year, $50 billion
economic impact of President Biden’s eviction moratorium.
594 U.S. at 764.
The President’s full slate of recent tariffs is projected
to “increase federal tax revenues by $174.9 billion” in
a single year, representing “the largest tax hike since
1993.” York & Durante, supra. And they are projected
20
to reduce GDP by 0.8% (before foreign retaliation), id.,
which equates to over $200 billion per year or more than
$2 trillion over ten years. 5 Those anticipated economic
effects satisfy any measure of economic significance.
The tariffs are politically significant, too. There
are few decisions that are more politically fraught than
taxation. Given that these tariffs, as just noted, by one
estimate represent the largest tax hike in a generation,
it is unsurprising that they have been the subject of
“earnest and profound debate across the country.” West
Virginia, 597 U.S. at 732 (quoting Gonzales v. Oregon, 546
U.S. 243, 267–68 (2006)). Legislation was introduced in
Congress before President Trump took office that would
have enacted worldwide 10% tariffs, see H.R. 505, 119th
Cong. (2025), and, since the tariffs were adopted, members
of Congress have proposed legislation to terminate the
emergency underlying the reciprocal tariff order, see S.J.
Res. 49, 119th Cong. (2025), and to limit the President’s
ability to enact new tariffs, see Trade Review Act of
2025, S. 1272, 119th Cong. (2025). Although this Court’s
precedents have not spelled out a clear test for political
significance, these IEEPA tariffs would qualify under any
reasonable standard.
***
The major questions doctrine is limited in scope. But
if the President’s tariff orders are not “extraordinary”
enough to trigger the doctrine, it is hard to imagine an
5. U.S. GDP is currently over $30 trillion. United States:
Datasets, Int’l Monetary Fund (last updated Oct. 2025), https://
perma.cc/W8NV-PU8P.
21
action that would be. The Government therefore “must
point to ‘clear congressional authorization’ for the power it
claims.” West Virginia, 597 U.S. at 723. We leave the more
detailed textual arguments concerning whether clear
congressional authorization exists to the parties’ briefing.
II. The Court Should Also Resolve Uncertainty In The
Lower Courts Over Whether The Major Questions
Doctrine Is A Linguistic Or Substantive Canon.
In addition to clarifying what factors trigger the
major questions doctrine, the Court should further clarify
that the doctrine is a linguistic tool that aids a court in
discerning statutory meaning—not a substantive canon
that permits a court to diverge from the best reading of
the statute.
A.
Lower courts have expressed uncertainty
over whether the doctrine is a linguistic or
substantive canon.
As one Justice of this Court has highlighted, there
is “an ongoing debate” over the “source and status” of
the major questions doctrine, with different courts and
commentators expressing uncertainty as to whether it
serves as a substantive or linguistic canon. Nebraska, 600
U.S. at 507 (Barrett, J., concurring); see also, e.g., Cass R.
Sunstein, There Are Two “Major Questions” Doctrines,
73 Admin. L. Rev. 475 (2021).
This distinction has significant consequences. A
clear-statement rule is commonly understood to permit
a court to diverge from the most natural reading of the
text to further a value external to the statute. Amy Coney
22
Barrett, Substantive Canons and Faithful Agency, 90 B.U.
L. Rev. 109, 118–19 (2010). A linguistic canon, in contrast,
functions as “a tool for discerning—not departing from—
the text’s most natural interpretation” by “situat[ing]
text in context.” Nebraska, 600 U.S. at 508, 511 (Barrett,
J., concurring); see also Barrett, supra, at 117. Courts
applying the doctrine in this light would lack “permission[]
to choose an inferior-but-tenable alternative” statutory
reading. Nebraska, 600 U.S. at 516.
Yet lower courts have been divided over how the major
questions doctrine applies. Some judges have referred
to the doctrine as “essentially a clear-statement rule.”
Georgia v. President of the United States, 46 F.4th 1283,
1314 (11th Cir. 2022) (Anderson, J., concurring in part
and dissenting in part); see also Baxter v. Becerra, No.
3:23-CV-92 (RCY), 2024 WL 627262, at *7 (E.D. Va., Feb.
14, 2024), aff’d sub nom. Baxter v. Kennedy, 136 F.4th
70 (4th Cir. 2025). Others have likened the doctrine to
the interpretive principle that Congress does not “hide
elephants in mouseholes,” see Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 468 (2001), thus framing the major
questions doctrine as a linguistic canon, see, e.g., Bradford
v. U.S. Dep’t of Labor, 101 F.4th 707, 725–26 (10th Cir.
2024); All. for Fair Bd. Recruitment, 125 F.4th at 180; In
re MCP No. 185, 2024 WL 3650468, at *3.
And still other courts have declined to take a position.
For example, the Fifth Circuit has questioned “whether
the doctrine is one interpretative tool among many
or a clear-statement rule.” Mayfield, 117 F.4th at 616.
Similarly, the D.C. Circuit has asked whether the doctrine
serves as “a linguistic canon, or a substantive canon with
a constitutional basis safeguarding the separation of
23
powers, or both.” Save Jobs USA v. U.S. Dep’t of Homeland
Sec., Off. of Gen. Couns., 111 F.4th 76, 80 (D.C. Cir. 2024),
cert. denied, No. 24-923, 2025 WL 2906616 (Oct. 14, 2025).
A Ninth Circuit judge has acknowledged competing
justifications for the “source and status” of the doctrine,
while claiming that the “Supreme Court in West Virginia
. . . does not take a side on that debate.” Su, 121 F.4th at
18 (R. Nelson, J., concurring) (citation omitted). And the
Fourth Circuit has observed the “ongoing debate,” while
noting that “clear-statement rules sit uncomfortably with
our commitment to textualism.” N.C. Coastal Fisheries
Reform Grp. v. Capt. Gaston LLC, 76 F.4th 291, 296 n.5
(4th Cir. 2023).
Given this widespread confusion, clarification of this
point would be beneficial. As noted above, a court applying
the major questions doctrine as a substantive canon might
come to a different outcome on an issue than a court
applying it as a linguistic canon—choosing “an inferiorbut-tenable reading” rather than “the text’s most natural
interpretation.” Nebraska, 600 U.S. at 508–09 (Barrett,
J., concurring).
B. Under this Court’s precedents, the major
questions doctrine operates as a linguistic
canon, not a substantive clear-statement rule.
Despite some confusion in the lower courts, this
Court’s precedents already demonstrate that the major
questions doctrine is a linguistic canon directing courts to
look to “context” to determine “whether Congress in fact
meant to confer the power the [government] has asserted.”
West Virginia, 597 U.S. at 721.
24
As Justice Barrett has recognized, none of this
Court’s major questions cases “requires an unequivocal
declaration from Congress authorizing the precise agency
action under review.” Nebraska, 600 U.S. at 511 (Barrett,
J., concurring) (cleaned up). Rather, this Court’s major
questions cases seek to determine the “best interpretation
of the text,” consistent with a linguistic canon. Id. For
instance, West Virginia began its statutory analysis by
reciting the “fundamental canon of statutory construction
that the words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme.” 597 U.S. at 721 (quoting Davis v. Michigan Dep’t
of Treasury, 489 U.S. 803, 809 (1989)). And then, when
it assessed whether “clear congressional authorization”
supported the challenged action, West Virginia looked
beyond the “vague” text of the operative statutory
provision, and considered other contextual factors
including nearby provisions and statutory history. Id. at
732–35 (citation omitted).
This Court has similarly treated the major questions
doctrine as a linguistic canon in other cases. King v.
Burwell, 576 U.S. 473 (2015), stressed that “oftentimes the
‘meaning—or ambiguity—of certain words or phrases may
only become evident when placed in context.’” Id. at 486
(quoting Brown & Williamson, 529 U.S. at 132). Similarly,
Nebraska treated the doctrine as an additional ground for
reaching the result arrived at through “ordinary tools of
statutory interpretation.” 600 U.S. at 506 & n.9.
Where this Court has adopted clear-statement
rules, which it has never done in its major questions
jurisprudence, it has done so explicitly. For example, a
waiver of the federal government’s sovereign immunity
25
must “be unequivocally expressed.” Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 95 (1990) (citation omitted).
Similarly, Congress “must make its intention” to interfere
with state sovereignty “unmistakably clear.” Gregory v.
Ashcroft, 501 U.S. 452, 464 (1991) (citation omitted). In
contrast, the phrase “clear-statement rule” is absent from
the West Virginia majority’s legal analysis, even though
the agency, the partial dissent below, at least one petitioner
brief, and the concurring opinion all framed the doctrine
that way. West Virginia, 597 U.S. at 699 (describing the
agency’s framing of the doctrine); Am. Lung Ass’n v. EPA,
985 F.3d 914, 999 (D.C. Cir. 2021) (Walker, J., concurring in
part, concurring in the judgment in part, and dissenting in
part), rev. and remanded sub nom. West Virginia v. EPA,
597 U.S. 697 (2022); Br. for Pet’r N. Am. Coal Corp. 17,
West Virginia v. EPA, 597 U.S. 697 (2022) (No. 20-1530);
West Virginia, 597 U.S. at 735 (Gorsuch, J., concurring).
This Court’s opinion in Loper Bright Enterprises v.
Raimondo, 603 U.S. 369 (2024), further supports treating
the major questions doctrine as a linguistic canon. Loper
Bright treated the major questions doctrine as a carveout
to Chevron deference, id. at 405, and, in eliminating that
deference regime, instructed courts to use “all relevant
interpretive tools” in agency cases to discern the “single,
best meaning” of the statute, id. at 400. As this Court’s
major questions cases demonstrate, the doctrine is one
“tool at [a court’s] disposal” in exercising “its obligation
to independently interpret the statute.” Id.
***
In short, this Court’s precedents already establish
that the major questions doctrine functions as a linguistic
26
canon. Because lower courts have expressed confusion
on this point, further clarity from this Court would be
highly useful.
III. The Court Should Also Clarify That There Are No
Carveouts To The Major Questions Doctrine.
The Government asks this Court to create doctrinal
exceptions to the major questions doctrine for acts by
the President or concerning foreign affairs. Gov’t Br.
34–36. But there is no sound basis for carving out such
exceptions—particularly not here, where Congress holds
the authority to impose import tariffs and the President
has justified the tariffs by reference to core domestic
policy matters, including economic competitiveness.
Further, this Court’s prior major questions decisions
have also implicated foreign affairs. This Court also
recently lamented the creation of doctrinal exceptions to
Chevron deference that led to that doctrine’s incomplete
and inconsistent application. Loper Bright, 603 U.S. at
404–06. Creating exceptions under the major questions
doctrine risks the same fate.
A.
The major questions doctrine applies to
presidential acts under delegated authority.
While this Court has so far applied the major questions
doctrine only to agencies or cabinet departments, nothing
in this Court’s opinions suggests that a different rule
would apply to the President when acting under delegated
authority from Congress.6 Contra Gov’t Br. 36.
6. Three courts have applied the major questions doctrine to
presidential actions. See Louisiana v. Biden, 55 F.4th 1017, 1031
27
As discussed above, the major questions doctrine is a
tool for interpreting the scope of the power Congress has
lawfully delegated. When the President acts under such a
delegation, as with any other government official, courts
must independently analyze the scope of that delegation to
assess “a claim alleging that the President acted in excess
of his statutory authority.” See Am. Forest Res. Council
v. United States, 77 F.4th 787, 796 (D.C. Cir. 2023), cert.
denied, 144 S. Ct. 1110 (2024). “An implausible reading of
a statute is no less implausible when that statute confers
authority on the President versus an agency.” Su, 121 F.4th
at 19–20 (R. Nelson, J., concurring).
Excusing presidential acts from major questions
review would also sit uncomfortably with this Court’s
teachings that “a single President [is] responsible for the
actions of the Executive Branch.” Free Enter. Fund v.
Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 496–97 (2010)
(quoting Clinton v. Jones, 520 U.S. 681, 712–13 (1997));
see also Seila Law LLC v. Consumer Fin. Prot. Bureau,
591 U.S. 197, 203 (2020). Under this Court’s precedents,
delegations to “executive officers or agencies . . . are not
analytically distinct . . . from delegations to the President
because the President controls, supervises, and directs
those executive officers and agencies.” Fed. Commc’ns
Comm’n v. Consumers’ Rsch., 145 S. Ct. 2482, 2512 n.1
(2025) (Kavanaugh, J., concurring).
& n.40 (5th Cir. 2022); Georgia, 46 F.4th at 1295–96; Kentucky
v. Biden, 23 F.4th 585, 606–08 (6th Cir. 2022). One circuit took
the opposite view, Mayes v. Biden, 67 F.4th 921, 933–34 (9th Cir.
2023), but that decision was vacated as moot, 89 F.4th 1186 (9th Cir.
2023); see also Su, 121 F.4th at 17–19 (R. Nelson, J., concurring)
(explaining that the major questions doctrine should apply to the
President).
28
That the President may be more directly politically
accountable to the public than the agencies he supervises,
see Gov’t Br. 36, does not afford him greater leeway to
deviate from Congress’s design. No matter “how likely
the public is to hold the Executive Branch politically
accountable” for an action premised on delegated
authority, that action “must always be grounded in a valid
grant of authority from Congress.” Brown & Williamson,
529 U.S. at 161.
B. The major questions doctrine applies to
delegated acts that implicate foreign affairs.
Even where the challenged actions involve delegated
powers implicating foreign affairs or national security,
the major questions doctrine remains relevant. Contra
Gov’t Br. 34–36.
“[T]he President’s authority to act necessarily ‘stem[s]
either from an act of Congress or from the Constitution
itself.’” Trump v. United States, 603 U.S. 593, 607 (2024)
(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 585 (1952)). Here, the Constitution grants Congress
the power to “lay and collect Taxes, Duties, Imposts and
Excises.” U.S. Const. art. I, § 8, cl. 1. This constitutional
allocation makes “clear that no undelegated power to
. . . set tariffs[] inheres in the Presidency.” Yoshida, 526
F.2d at 572; see also Saikrishna B. Prakash & Michael D.
Ramsey, The Executive Power over Foreign Affairs, 111
Yale L.J. 231, 263 n.123 (2001) (describing the power to
set tariffs as an independent power of Congress).
The Government’s contention that a “broad reading
of . . . statutory delegation” is implicit for “foreign-policy
29
emergencies,” Gov’t Br. 35, should not remove IEEPA
entirely from major questions review. Of course, this
Court has recognized that Congress “often enact[s]”
statutes that allow “a degree of discretion.” Loper Bright,
603 U.S. at 394. But that discretion is never unlimited: The
judiciary must in all contexts “independently interpret
the statute and effectuate the will of Congress.” Id. at
395. When a government actor applies a statute in an
unprecedented and transformative manner—in any
context—there is no baseline assumption that Congress
meant to delegate in that manner. “The Executive is not
free from the ordinary controls and checks of Congress
merely because foreign affairs are at issue.” Zivotofsky,
576 U.S. at 21.
Indeed, this Court’s major questions precedents
frequently involve foreign affairs or invocations of
emergency powers. For instance, Nebraska involved
an emergency declaration under a provision of the
HEROES Act authorizing waiver or modification if
deemed “necessary in connection with a war or other
military operation or national emergency.” 20 U.S.C.
§ 1098bb(a)(1); see also 600 U.S. at 485–86. Likewise, the
eviction moratorium challenged in Alabama Realtors
was established under a provision of the Public Health
Service Act authorizing the Surgeon General to regulate
“to prevent the introduction, transmission, or spread
of communicable diseases from foreign countries into
the States.” 42 U.S.C. § 264(a); see also 594 U.S. at
760–61. NFIB dealt with an “emergency standard” that
the Executive Branch deemed “necessary to protect
employees from [grave] danger.” 29 U.S.C. § 655(c)(1); see
also 595 U.S. at 114. And in West Virginia, the challenged
Clean Power Plan was adopted to address greenhouse gas
30
emissions that contribute to climate change, 597 U.S. at
711—an issue that, like tariffs, implicates U.S. “foreign
policy” and greatly affects our ability to “work with other
countries and partners,” see Exec. Order No. 14,008, 86
Fed. Reg. 7619, 7619 (Feb. 1, 2021); see also id. at 7619–21.
In none of these cases did the challenged policy’s global
importance, the relevant statute’s foreign reach, or the
government’s emergency invocation prevent the Court
from applying the major questions doctrine.
There is no sound basis, then, for exempting the
President’s exercise of congressionally delegated tariff
authority from the same searching inquiry.
C.
Creating carveouts will repeat the errors that
led the Court to eliminate Chevron deference.
Introducing carveouts to the major questions doctrine
also risks collapsing the doctrine under its own weight,
much like what happened to the Chevron doctrine.
Last year, this Court lamented that it had “impos[ed]
one limitation on Chevron after another,” resulting in
a “byzantine set of preconditions and exceptions” that
led lower courts to apply the doctrine inconsistently,
incompletely, or sometimes not at all. Loper Bright,
603 U.S. at 404–06; see also id. at 409 (describing the
Chevron inquiry as a “dizzying breakdance”). Creating
carveouts to the major questions doctrine risks this
same fate: If the Court creates “one limitation” here,
“another” is bound to develop in a future case. See id. at
404. “[T]he basic nature and meaning of a statute does
not change when an agency happens to be involved,” id.
at 408—nor should it just because the President is the
31
one interpreting the statute, or because foreign affairs
are involved.
A foreign affairs carveout in particular would
cause the same “unworkability” issues that plagued the
Chevron doctrine. See id. at 409. As illustrated above,
the line between foreign and domestic concerns is thin
and courts may not be well-positioned to discern it. See
Timothy Meyer & Ganesh Sitaraman, The National
Security Consequences of the Major Questions Doctrine,
122 Mich. L. Rev. 55, 83–85 (2023). Creating a foreign
affairs carveout could also create perverse incentives for
the Executive Branch to pursue domestic policy goals
through statutes that ostensibly concern foreign affairs,
thus evading review under the major questions doctrine.
Id. at 85. Here, for instance, the President’s stated
goals in adopting the challenged tariffs are to “rectify
America’s country-killing trade deficits,” reinvigorate
American manufacturing, and raise “massive sums of
money.” Gov’t Br. 2–6 (citation omitted). Categorically
removing any actions taken under IEEPA from major
questions review would broadly permit the President
to use that authority and others to pursue expansive
domestic policy goals.
Given the inconsistency that has already arisen in
applying the major questions doctrine, the Court should
take the opportunity to clarify the doctrine, not complicate
it further.
CONCLUSION
This case offers the ideal opportunity to clarify the
major questions doctrine. That doctrine is reserved for
32
extraordinary cases. Because the challenged tariffs are
unheralded, transformative, and of vast economic and
political significance, this is such a case.
October 23, 2025
Respectfully submitted,
Richard L. Revesz
Counsel of Record
Donald L. R. Goodson
Kelly C. McGee
Max Sarinsky
Institute for Policy Integrity
139 MacDougal Street, 3rd Floor
New York, NY 10012
(212) 998-6567
richard.revesz@nyu.edu
Counsel for Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.