Outside the Beltway

The Tariff Ruling and the Balance of Power

The case has major implications beyond the taxation issue.

James Joyner · Saturday, February 21, 2026 · 3 comments

Jack Goldsmith offers some “Quick Thoughts on the Tariff Decision and the President’s Angry Reaction.” As is the norm for a profession that calls a 300-page document a “brief,” they are actually rather expansive. While the whole thing is worth reading, I want to focus on the middle section, “The Bigger Legal Picture.”

2. The doctrinal underpinnings and scope of the [Major Questions Doctrine (MQD)] in one sense emerged from this decision more confused than ever. Three conservative justices who have been drawn to the doctrine, Justices Gorsuch, Barrett, and Kavanaugh, had sharp disagreements about how it should operate here. The deeper one gets into the weeds of the doctrine, the harder it gets to apply. But need one get into those weeds? The Chief Justice, who has never concerned himself with a theoretical or academic account of the doctrine, had no trouble applying it in a way that gathered the support of Justices Barrett and Gorsuch, even though they disagreed among themselves about the nature of the doctrine.

3. A very significant aspect of the Chief Justice’s MQD analysis is that three conservative justices embraced it to rule against President Trump’s signature policy. And they did so in the most difficult possible context, with an issue involving national security and foreign affairs. This is a rebuttal to those who have claimed that the Court, or at least those three justices, invoke the doctrine opportunistically and politically to hurt Democratic presidents. And I think it signals more clearly than ever that, going forward, this Court is going to view broad delegations of statutory authority to a president to act, and/or extravagant presidential interpretations of authorizations to act, with skepticism. The three justices firmly committed here to the MQD can (if they wish) ensure that outcome in a case of just about any political configuration.

To the extent this is true, it is a hugely important complement to the Court’s emerging broad view of the unitary executive. Put another way, it is a vindication of Sarah Isgur’s view that the tradeoff on the Court for enhancing vertical unitary presidential control is “for the court to rein in Congress’s bad habit of delegating vast and vague powers to the executive branch,” including through MQD. It also puts in a better light the Court’s interim orders to date in Trump 2.0, a large number of which, due to the application strategy of the Solicitor General, involved issues of vertical control. The tariff opinion gives the lie to the notion that the Court is in the bag for the president and also makes its approach to issues of presidential power in Trump 2.0 both clearer and more nuanced.

Goldsmith’s knowledge of the law and the inner workings of the US political system dwarfs mine, and I certainly hope he’s right. Still, I’m going to need more than even one big case to get over my skepticism that this court has become blatantly partisan. In particular, Justices Alito and Thomas no longer even seem to pretend otherwise.

Beyond that, though, Goldsmith’s analysis is reassuring.

While the Unitary Executive Theory has some academic merit, in that the Framers simply would not recognize the way our system now operates, our government would grind to a halt if it had to actually operate to the letter of the 1789 Constitution (even as amended). And it would simply be absurd—not to mention anathema to the spirit of the Constitution—for the President to simply use any power delegated to the Executive branch as he personally saw fit.

But the version of MQD that Goldsmith advocates largely solves those problems. Regulatory agencies could still regulate, but Congress would actually have to legislate on matters with major societal and economic impacts. (Of course, it creates problems of its own, practically inviting lawsuits of which policies are “major.”)

4. There is a large open question after this opinion about how the MQD applies in so-called national security or foreign affairs cases. I have written about this issue a lot, including in an article with Curt Bradley that was cited in both the Gorsuch and Kavanaugh opinions—opinions that had sharp disagreements on MQD on just this point! Here is what I think preliminarily. Three justices—the Chief Justice and Justices Gorsuch and Barrett—seem ready to apply the MQD in the national security and foreign affairs context without much if any qualification. Three justices—Justices Kagan, Sotomayor, and Jackson—don’t much care for the MQD in any context. And three justices—Justice Kavanaugh, Thomas, and Alito—appear ready to carve out in this context room for the MQD’s applications. The net impact going forward in this context is hard to fathom, especially if one tries to take the Marks rule seriously. I think Justice Kavanaugh is probably right that “the question of whether or how the major questions doctrine applies in foreign affairs cases remains at least an open question.”

Rather clearly, Trump has demonstrated the problem of simply leaving it up to the President to decide what constitutes a question of “national security.” Forcing Congress to do its damn job is the obvious Constitutional solution to balancing that power.

Alas, that institution has become stultified in recent decades, partly because it has delegated so much power to Executive agencies. I have little confidence that it will actually function again anytime soon.

Lastly, I hope Goldsmith is right here:

[T]he Trump press conference was an amazing portrait of a president who claims to be unbound by law seethingly acquiescing in a court ruling on “an important case to me” that he abhorred with every fiber of his body. It is clear the administration will use every alternative legal tool at its disposal to replicate or go further in deploying international economic weapons. That is its legal prerogative. But still, Trump’s anger combined with his acquiescence in the ruling elevated the Court and was a remarkable testament to its power.

SCOTUS’ power has always been a function of the other branches acquiescing to the norm that the judiciary has the final say. It has no real ability to force Presidents to comply. Many of us have speculated that one reason this court has been so reluctant to constrain Trump is their fear that he would simply ignore them, setting off a Constitutional crisis. Thus far, at least, Trump appears to be accepting the court’s authority, if in the least gracious way possible.

Indeed, NYT chief legal correspondent Adam Liptak declared the ruling “The Supreme Court’s Declaration of Independence.”

Starting with the 2024 decision that gave President Trump substantial immunity from prosecution and continuing through a score of emergency orders provisionally greenlighting an array of his second-term initiatives, Mr. Trump has had an extraordinarily successful run before the Supreme Court.

That came to a sudden, jolting halt on Friday, when Chief Justice John G. Roberts Jr., writing for six members of the court, roundly rejected Mr. Trump’s signature tariffs program. It was the Supreme Court’s first merits ruling — a final judgment on the lawfulness of an executive action — on an element of the administration’s second-term agenda. It amounted to a declaration of independence.

Emphasis mine, but a hugely important point. Trump’s wins thus far had been temporary rulings under the so-called Shadow Docket. It’s possible that yesterday’s ruling starts a trend in the other direction.

This, too, is worth highlighting:

In his first administration, Mr. Trump did poorly in the Supreme Court in argued cases in which the United States, an executive department, an independent agency or the president himself was a party. He prevailed only 42 percent of the time, the lowest rate since at least Franklin D. Roosevelt’s administration.

In other words, a fundamentally conservative court, with a six-justice majority of Republican appointees that includes three named by Mr. Trump himself, had not been particularly receptive to his arguments. The Biden administration, by contrast, did somewhat better, landing on the winning side 54 percent of the time.

We shall see how it unfolds. Trump’s rant yesterday, calling the conservatives who ruled against him “fools and lapdogs for the RINOs and the radical left Democrats” and “very unpatriotic and disloyal to our Constitution” and accusing them of being “swayed by foreign interests” may well stiffen some spines.