Since the Supreme Court announced the major questions doctrine in 2022, the doctrine has generated extensive confusion in lower courts and academic commentary. As colleagues and I explained in an amicus brief in the Supreme Court’s tariffs litigation, lower courts have expressed considerable confusion over both when the major questions doctrine applies and how the doctrine functions, providing a need for more clarity.

The Court’s decision last week in Learning Resources v. Trump is not quite the clarion call we hoped for, with at least five separate opinions discussing the major questions doctrine and none garnering support from a majority of the Court. But across the varied opinions, several key points of agreement emerge. The opinions reinforce the major questions doctrine as a tool for discerning the best meaning of a regulatory statute in extraordinary cases.

First, most Justices—seemingly all six in the majority—hold that the major questions doctrine is not triggered, if at all, unless the asserted executive authority (1) was unheralded, (2) sought to transform the actor’s statutory role, and (3) was of great economic and political significance. This three-part test is consistent with the Supreme Court’s prior decisions in West Virginia v. EPA and Nebraska v. Biden.

Second, a majority of Justices—plausibly eight, but at a minimum five—state that when the major questions doctrine applies, it functions as a linguistic canon that aids in finding the best statutory reading, not a substantive clear-statement rule that puts a thumb on the scale against executive action. This too is consistent with recent Supreme Court precedent.

When Does the Doctrine Apply?

Before Learning Resources, recent Supreme Court decisions have stressed that only “extraordinary cases” trigger the major questions doctrine, with the Court focusing on the challenged action’s history, breadth, and significance.

In West Virginia, the Supreme Court found that the doctrine was triggered because the challenged Clean Power Plan was entirely unprecedented under the statute and would transform the Environmental Protection Agency’s role from an environmental to an energy regulator. In Nebraska, the Court similarly emphasized that the challenged student-loan-forgiveness plan was unprecedented under the invoked statutory authority, would transform the regulator’s role, and was of great economic and political significance.

Despite the Court’s relatively consistent approach, some uncertainty over these triggers has persisted. In a two-Justice concurrence in West Virginia, Justice Gorsuch argued that the doctrine should apply to executive actions with “political significance” alone or that impose “billions of dollars” in private costs. Justice Gorsuch’s formulation overlooked the majority’s requirement of unheralded and transformative action and seemingly enabled the doctrine to apply in challenges to a wider range of executive actions (after all, $2 billion is a relatively modest cost for a nation with a gross domestic product exceeding $30 trillion). Some decisions from lower courts have invoked the doctrine based on significance alone, sometimes citing Justice Gorsuch’s opinion for that authority.

Learning Resources reemphasizes that the major questions doctrine applies only where the challenged action reflects unheralded and transformative authority. The majority opinion—in a section signed only by Chief Justice Roberts, Justice Gorsuch, and Justice Barrett—walks through the same factors emphasized in West Virginia and Nebraska. First, the opinion recognizes that the authority “to unilaterally impose unbounded tariffs” would reflect a “transformative expansion of the President’s authority over tariff policy” compared to the “clear and limited delegations” provided in other statutes. Second, it explains that “no President has invoked” the International Emergency Economic Powers Act (IEEPA) in its 50-year history “to impose any tariffs—let alone tariffs of this magnitude and scope.” Third, the opinion highlights the vast “economic and political significance of the authority the President has asserted.” While the majority focuses more on breadth than novelty, it ultimately walks through the same factors as prior major questions cases.

Although he writes separately on the major questions doctrine, Justice Gorsuch does not appear to have concerns with the majority’s analysis, which he joins in full, of why the major questions doctrine applies. Rather, his separate writing focuses on the question of how the major questions doctrine operates when it applies. I discuss it further below.

In a separate writing, the three other Justices in the majority—Justices Kagan, Sotomayor, and Jackson—reject the notion that “a special brand of legislative clarity” should apply in particular cases. Seemingly, these Justices reject the major questions doctrine and imply that it never or rarely applies. Combined with the other authors in the majority, this provides likely six—at a minimum five (not including Justice Gorsuch)—votes for the view that the major questions doctrine cannot be triggered, if at all, unless the challenged assertion of authority (1) is unheralded, (2) transforms the actor’s delegated role, and (3) is of vast economic and political significance.

The dissent appears to disagree. Joined by Justices Thomas and Alito, Justice Kavanaugh indicates that the major questions doctrine can apply outside the context of foreign affairs to any “executive actions of major economic and political significance.” And while Justice Kavanaugh does discuss such considerations as the action’s novelty and transformative nature, as discussed further below, he puts these considerations under the analysis of whether “clear congressional authorization” is present once the major questions doctrine is triggered—not whether to apply the doctrine in the first place.

But as the opinions by Chief Justice Roberts and Justice Kagan demonstrate, the dissent’s view is the minority. For a majority of Justices, triggering the major questions doctrine requires more than significance.

How Does the Doctrine Operate?

Before Learning Resources, recent Supreme Court decisions have also emphasized that “clear congressional authorization” is required to uphold the challenged action when the major questions doctrine applies. The Supreme Court has decidedly not called the major questions doctrine a clear-statement rule.

Justices Gorsuch and Barrett have separately written in prior cases about what this clear authorization entails. In Justice Gorsuch’s view, as explained in his concurrence in West Virginia, the major questions doctrine functions as a clear-statement rule that serves the nondelegation doctrine and requires particularly clear authorization for the challenged action. In Justice Barrett’s view, as explained in her concurrence in Nebraska, the doctrine operates as a linguistic canon consistent with standard interpretive principles focused on context and common sense, requiring a court to give effect to the best statutory reading. Lower courts have also expressed confusion about the source and status of the doctrine.

Learning Resources provides some more clarity. In the case, Justices Gorsuch and Barrett—now the only two Justices to side against the government in every recent major questions case (counting 2022’s Biden v. Missouri)—reprised their dueling concurrences on the meaning of “clear congressional authorization.” But other opinions strongly indicate that a majority of the Court—and potentially every member besides Justice Gorsuch—supports Justice Barrett’s approach.

Chief Justice Roberts’s majority opinion quotes three times from Justice Barrett’s Nebraska concurrence to emphasize that the major questions doctrine looks at how a “reasonable interpreter” would understand the statute in light of context and “common sense.” In contrast, the majority opinion does not cite any Justice Gorsuch concurrence on the major questions doctrine. This disparate treatment seemingly indicates that the Chief Justice sides with Justice Barrett’s view. Moreover, in assessing whether IEEPA clearly authorized the challenged tariffs, Chief Justice Roberts (with the agreement of all six Justices in the majority) engages in a careful analysis of statutory design, context, and legislative history—detailed considerations that do not fit neatly with Justice Gorsuch’s clear-statement approach. Although Chief Justice Roberts’s opinion was deft enough to earn support from both Justices Gorsuch and Barrett, it thus appears to lean toward Justice Barrett’s view of the doctrine as a linguistic canon.

Justice Kagan’s three-Justice concurrence similarly highlights that statutory text should be read in its context, emphasizes that statutory interpretation should seek to understand legislative design, and suggests that Justice Gorsuch’s approach has not found any converts. Justice Jackson, in a separate writing, specifically emphasizes the importance of legislative history.  Together with the writings from Justice Barrett and Chief Justice Roberts, these opinions indicate that at least five Justices do not apply a clear-statement rule.

Though somewhat unclear, Justice Kavanaugh’s dissent seemingly provides another three votes for this approach. To be sure, the dissent cites both Justice Gorsuch’s and Justice Barrett’s prior concurrences without expressly favoring one over the other. But it recognizes that the major questions doctrine does not function as “a magic words requirement” and emphasizes the role of “text, history, and precedent,” including legislative history and regulatory antecedents (although this approach may partially reflect the dissent’s embrace of presidential, as opposed to agency, authority). And the dissent does not refer to the major questions doctrine as a clear-statement rule. Although the dissent could arguably be read to say that IEEPA’s history and context supply overwhelmingly clear support for the challenged tariffs, that position is difficult to square with contrary evidence credited by the other six Justices.

* * *

Going into Learning Resources, there was a need for further guidance on the major questions doctrine. In my view, Learning Resources provides important albeit implicit guidance, particularly when read together with other recent Supreme Court cases. As the opinion demonstrates, a majority of Justices—presumably six, and at least five—indicate that the major questions doctrine cannot apply if the challenged assertion of authority is not (1) unheralded, (2) transformative, and (3) economically and politically significant. And another majority of Justices—seemingly eight, but again at least five—indicate that the doctrine operates as a linguistic canon rather than a substantive clear-statement rule.

There is, of course, an irony to Learning Resources: Several of the Justices who endorse a stronger major questions doctrine in many circumstances (Justices Kavanaugh, Thomas, and Alito) find support for the challenged tariffs, while the Justices who support a weaker major questions doctrine or none at all (Justices Barrett, Kagan, Sotomayor, and Jackson) find statutory support for them lacking. This indicates that future major questions decisions—both before the Supreme Court or lower federal courts—may be decided more by specific facts and circumstances than concrete judicial philosophies.  

Max Sarinsky is the legal director at the Institute for Policy Integrity at New York University School of Law.