“How Clear is Clear?”: Tariffs Edition

Let us cast our minds back to the dim past, even unto 2024, when the Court — in an opinion by the Chief Justice in Loper Bright Enterprises v. Raimondo — condemned and overruled the Chevron decision. And let us recall the Court’s grounds for declaring Chevron “unworkable,” in order to ask how the so-called “major questions doctrine” holds up against the Chief’s withering critiques of Chevron. In particular, does the application of “major questions doctrine” in the tariffs decision, Learning Resources v. Trump, by the three Justices who thought it applicable, avoid those very same critiques? The reader will have guessed the answer I suggest: everything that the Court said in condemnation of Chevron can be said with at least as much force against the so-called “major questions doctrine.” (I add “so-called” because, as will become clear, I am not convinced that the Court’s forays into the topic of “major questions” have yet produced any legal doctrine worthy of the name).

In the tariffs case, the Chief’s multi-part opinion has an odd and interesting structure, nested within the larger fracturing of the Court. Part II.A.1, which is for the Court (joined by Justices Gorsuch, Barrett, Kagan, Sotomayor, and Jackson) emphasizes the “unique importance” of the taxing power, all in the service of establishing a proposition that no party or commentator had denied, that the President has no “inherent authority” to impose taxes, and was instead relying on statutory authority for tariffs.¹

Part II.A.2. advances a “major questions” argument. The point of the Chief’s discussion on behalf of three Justices in this part is to establish that, in virtue of the “major questions doctrine,” a kind of standard of review governs the question of statutory authority: “the President must point to clear congressional authorization to justify his extraordinary assertion of the power to impose tariffs” (emphasis added; internal quotation omitted). This part, however, was very much not for the Court — Justices Kagan, Sotomayor and Jackson having jumped off the train at this point, because, as Justice Kagan explained for her sub-group, they believed that the President lacked tariff authority under ordinary principles of statutory interpretation, and in general see no need for any “so-called major-questions doctrine,” as Kagan put it. The Chief’s major questions discussion did not even command full assent from the Chief’s own sub-group, at least in the sense that Justices Gorsuch and Barrett each felt it necessary to file lone concurrences to explain their particular views of the “doctrine’s” scope and justifications.

In Part II.B, now with the Kagan group back on the train, the Chief advances arguments from ordinary statutory interpretation to reject the President’s position, concluding that “the terms [of the statute] do not authorize tariffs.” Presumably there is no reference to “clarity” here so as to keep a majority for that piece of the opinion.

In Part III, however, with the Kagan group having leapt off the train yet again (how exhausting!), the Chief, for his own group of three, returns to the standard of review for legal authority: “In light of the breadth, history, and constitutional context of [the President’s] asserted authority, he must identify clear congressional authorization to exercise it (emphasis added)... we hold that [the statute] does not authorize the President to impose tariffs.” For the Chief as of 2026, the “major questions doctrine” asks: is the claimed statutory authority “clear”?

For those few of us elders who remember the yesteryear of Loper Bright, all this induces a certain sense of vertigo, of the world spinning too rapidly. Recall that in Loper Bright, the Court — through the Chief — offered, in stern language, a set of arguments intended to show that Chevron was “unworkable.” First and foremost among those arguments was that Chevron required, intolerably, that courts apply something like a standard of review for legal authority, determining whether the agency’s claimed authority was sufficiently “clear.” For the Chief — at least the Chief as of 2024 — any such standard of clear statutory authorization faced insuperable conceptual and practical obstacles. It’s worth quoting Loper Bright’s discussion in relevant part, cleaned up and with internal quotation and citation omitted:

The defining feature of [Chevron’s] framework is the identification of statutory ambiguity, which requires deference at the doctrine’s second step. But the concept of ambiguity has always evaded meaningful definition. As Justice Scalia put the dilemma just five years after Chevron was decided: “How clear is clear?” We are no closer to an answer to that question than we were four decades ago. ‘[A]mbiguity’ is a term that may have different meanings for different judges. One judge might see ambiguity everywhere; another might never encounter it. A rule of law that is so wholly in the eye of the beholder invites different results in like cases and is therefore arbitrary in practice. Such an impressionistic and malleable concept cannot stand as an every-day test for allocating interpretive authority between courts and agencies.

What a difference a couple of years makes. Now, it seems, it is straightforward or has again become straightforward to determine whether the President has “clear congressional authorization” for tariffs. The question “how clear is clear?”, which once seemed so cutting and incisive to the Chief and indeed the whole Loper Bright majority, is nowhere to be found. Or rather, that very question, far from being an insuperable obstacle to workable law, has itself once again become law, has become the standard that courts are to apply to determine the authority of a co-ordinate branch, the executive branch (which, the Chief has repeatedly admonished us, is wholly embodied in the President).

I believe that the Chief was wrong the first time. I believe, in other words (as Justice Kagan observed in her Loper Bright dissent), that it is the ordinary work of courts to apply standards of clarity, or conversely ambiguity, to questions of legal interpretation. A myriad of time-honored canons and interpretive principles so require. But whatever the merits of the Chief’s critique back in the age of Loper, it is fair to hold the “major questions doctrine” to the Chief’s own quondam standards and ask why exactly, two years later, a standard of clear statutory authorization is now no longer “impressionistic,” “malleable,” and “arbitrary in practice.” Has the “eye of the beholder” suddenly sharpened its vision? Or is it just looking in a different direction?

One might offer parallel points as to Loper Bright’s other critiques of Chevron’s workability, critiques that apply in spades to the “major questions doctrine.” The Chief-as-of-2024, for example, charged that “we have … been forced to clarify the [Chevron] doctrine again and again. Our attempts to do so have only added to Chevron’s unworkability … the doctrine continues to spawn difficult threshold questions that promise to further complicate the inquiry.”

As of today, all this is true a fortiori as to “major questions.” The Chief’s group of three cannot even begin to agree on a rationale for the “doctrine” amongst themselves. In their solo concurrences, Justices Gorsuch and Justice Barrett quarrel like schoolchildren over whether the “doctrine” is better understood as a sub-constitutional implementation of nondelegation principles (the Gorsuch view), or instead a mere contextual inference, albeit with “context” enriched to the point of including the whole structure of the constitutional order and all background conventions of the legal system (the Barrett view).² It is not clear what difference, if any, this distinction makes, except that to the contending parties-of-one it seems to make a great difference indeed. Meanwhile the Chief keeps repeating that the “doctrine” is rooted in “both separation of powers principles and a practical understanding of legislative intent” — thereby resembling a teacher who tries to quiet the children by saying “you’re both right,” in the hope of peace at any price, even if that price is persistent uncertainty and disagreement at the level of principle.

So too, even the applicability and scope of the major questions “doctrine” remains desperately unclear after the tariffs case, indeed less clear than ever before. There are now three seemingly entrenched subgroups on the Court: (1) the Chief’s group-of-three, the “doctrine’s” strongest proponents, but divided amongst themselves; (2) Justices Kagan, Sotomayor, and Jackson, who more or less reject the doctrine altogether; and (3) the sub-group composed of Justices Kavanaugh, Thomas, and Alito, who have a more limited conception of the domain in which major questions even applies. In the tariffs case, the first camp thought the doctrine applicable and dispositive; the second camp thought the doctrine inapplicable, in the sense that it is never applicable; the third group, dissenting together, thought the doctrine inapplicable because the case touched on “foreign affairs.” (A large and consequential domain, especially when it comes to presidential authorization).

Six justices, in other words, thought the doctrine inapplicable in one way or another in a case in which the Chief and his sub-group thought the doctrine dispositive. There is no consensus across the Court as a body on when the “doctrine” even applies or what it might apply to. Is this a picture of a doctrine that is stable and well-delimited, or instead one that (as the Chief put it in Loper Bright) “continues to spawn difficult threshold questions that further complicate the inquiry”?

One could go on in this vein, but the point is … clear. If, as Loper Bright claimed, Chevron failed to ever truly crystallize into a settled and stable doctrine commanding the enduring assent of the Court as an ongoing body over time, then on the same grounds the major questions “doctrine” is doing no better. The overall picture is of a Court that, as to the major questions doctrine, has descended into divided and sub-divided factions that show no sign of reaching any stable consensus.

It is not as though the major questions enterprise is still in its infancy. On the contrary, the “doctrine” has been present in the caselaw in recognizable form at least since the FDA v. Brown & Williamson decision in 2000. It has had enough time, a quarter-century, to work itself towards stability and settlement, as it were, and it has conspicuously failed to do so. At a minimum, the Court in general, and the Chief Justice and his group-of-three in particular, at least owe us an explanation of why the standards and critiques applied so unsparingly in Loper Bright do not also condemn the whole increasingly fractious enterprise that goes under the label of the “major questions doctrine.” Given the Court’s inability to settle and clarify a “doctrine” that now takes center stage in so many cases of the first importance, that question itself seems one of major legal and political significance.

1. I will leave aside, for now, the fact that as recently as last Term, in FCC v. Consumer’s Research, and in earlier decisions, the Court denied that the taxing power had any special status in respect to delegation.

2. I have written a critique of Justice Barrett’s attempt to reconcile major questions with textualism, available here.