The Supreme Court’s opinion in Learning Resources, Inc. v. Trump is sure to garner countless news reports, media commentaries, and academic responses. Much of this attention will focus on Chief Justice Roberts’s majority opinion holding that President Trump’s attempts to impose sweeping import duties were not statutorily authorized by the International Emergency Economic Powers Act (IEEPA) or the intra-conservative debate about the major questions doctrine. This essay, however, seeks to bring attention to Justice Thomas’s solo dissent.

His separate writing is important not because it finds a constitutional defect in IEEPA, but because it insists the opposite—that there are no separation-of-powers issues with the statute at all because the power to impose tariff duties is not a “core” legislative power. In doing so, this dissent would narrow the constitutional meaning of “legislative power” while simultaneously describing much of Article I’s enumerated authority as “prerogative” powers, historically held by the Crown and therefore easily returnable to (and perhaps even more properly exercised by) the President.

This opinion creates an asymmetry that is hard to miss. Article II becomes a reservoir of historically grounded executive authority, while Article I becomes, in practice, a catalogue containing many powers that Congress may freely “delegate back” to the President. Given Justice Thomas’s role as one of the Court’s most vocal proponents of the unitary executive theory, it is worth taking the time to examine what his opinion might portend. Ultimately, the risk is less a single dramatic transfer of authority than a jurisprudential drift toward a presidency that looks increasingly prerogative-like in the very domains where unilateralism is most tempting—foreign affairs, emergency governance, and external economic policy.

The Unitary Executive Theory and the Vesting Clauses

In Zivotofsky v. Kerry, Justice Thomas bases his partial dissent in a constitutional contrast. Article I vests “[a]ll legislative Powers herein granted,” in Congress, while Article II vests in the President “the executive Power” without any qualifiers. Following a well-trod line of reasoning, Thomas draws a sweeping inference from this distinction, namely that the executive power “is not confined to those powers expressly identified in the document,” but instead “includes all powers originally understood as falling within the ‘executive Power’ of the Federal Government.”

Justice Thomas is not alone in his view that the vesting clauses connote substantive content, as this has become what Jed Shugerman terms a “pillar” of the unitary executive theory. And while disagreement exists, even among unitary executive enthusiasts, regarding the content of “the executive power,” the unifying thread in these discussions had been the view that the absence of a “herein granted” limitation in Article II meant that whatever powers were included in the phrase, they were all vested in the President.

This argument is usually framed as a parallelism between Articles I and II: if “legislative Powers” and “executive Power” are meaningful terms, then the presence of “herein granted” in Article I limits Congress to a subset of legislative authority, while the omission of that phrase in Article II suggests that the President receives the full historically understood “executive Power,” except where the Constitution expressly limits or reallocates it.

While this interpretation of Article II’s vesting clause has been hotly debated, what has received less scholarly and judicial attention is what this understanding means for Article I’s reference to “all legislative powers herein granted.” Perhaps this is due to the broad (though not universal) agreement that the phrase “all legislative Powers herein granted” must be read as limiting congressional authority to what the Constitution itself prescribes. This consensus, however, masks a subtle but important difference in how to best understand the phrase “legislative Powers” itself.

One possible reading is that, like “executive power,” the phrase “legislative powers” also encompasses a certain set of authority, but Congress is prevented from using all of that authority because the Constitution only vests in it a subset of those powers. Alternatively, one could read “legislative powers” as lacking any such substantive content on its own and instead define the term to include whatever powers the Constitution grants to Congress. The first interpretation is consistent with the unitary executive understanding of Article II. The second is not. But both readings of the clause would seem to understand those enumerated powers given to Congress by the Constitution as the “legislative Powers herein granted.”

In his Learning Resources opinion,however, Justice Thomas invokes a third reading—one that is not only inconsistent with his interpretation of Article II’s vesting clause, but also further empowers the presidency at Congress’s expense.

Learning Resources and “Core” Legislative Power.

Rather than understanding the Constitution’s enumerated grants of power to Congress as a limiting definition of “legislative power,” Justice Thomas argues in Learning Resources that the Constitution not only limits which legislative powers Congress gets to enjoy but actually gives Congress different powers that are not really legislative power at all. According to Justice Thomas, these real, or “core,” legislative powers are defined not by Article I’s vesting clause, but by the Due Process Clause of the Fifth Amendment, and they “include[] only the power to make ‘law’ in the ‘Blackstonian sense of generally applicable rules of private conduct,’ the violation of which results in the deprivation of [the natural rights of life, liberty, and property.’]” Thus, despite the fact that the power “To lay and collect Taxes, Duties, Imposts and Excises” leads off the laundry list of powers granted to Congress by Article I, Section 8, Thomas does not view it as a core legislative power.

This understanding of legislative powers would reclassify a large portion of Article I’s enumerated powers as not “legislative” in the relevant sense at all. Indeed, Justice Thomas makes this point explicit, quoting Michael McConnell for the proposition that though, “[w]e now think of the powers listed in Article I, Section 8 as quintessentially legislative powers, … many of them were actual, former, or asserted powers of the Crown.” This framing has consequences because, according to Thomas, anything outside of these “core legislative powers” can be freely delegated. 

There the danger lies. This is an even more aggressive view of the unitary executive theory that would further ease the path towards concentrating additional power in the hands of the President. Remember, in his Zivotofsky opinion, Justice Thomas treated “executive power” as a historically meaningful category whose content expanded presidential authority beyond enumerated clauses. In Learning Resources, he now treats “legislative power” as a historically meaningful category too—but narrows it to a pure legislative “core” while rebranding many enumerated congressional powers as not really legislative at all, and therefore easily transferable to the executive.

This creates an asymmetrical system of vesting. Article II’s vesting clause becomes a source of presidential authority grounded in historical meaning. Meanwhile, Article I’s vesting clause not only limits Congress’s “legislative powers” to those explicitly granted in the Constitution but imposes further limitations by splitting even these enumerated powers into a narrow “core” that Congress must exercise itself and a large set of executive-like powers that Congress may feely return to the President.

Justice Thomas’s own historical narrative highlights the concerns raised by his taxonomy of “core” legislative powers. Even accepting the premise that some of the powers the Constitution grants to Congress had previously been viewed as part of the king’s prerogative, the Framers’ decision to place former prerogative powers in Congress should be understood as a deliberate anti-monarchical design choice. Thomas’s approach in Learning Resources risks reversing the practical effect of that design. By describing many enumerated Article I powers as prerogative, and thus outside the “core legislative” category, he makes it easier for Congress to hand those powers “back” to the executive through broad statutes—precisely the kind of dynamic that the constitutional structure seems designed to prevent.

This is not to say that non-delegation is necessary (or even helpful) in slowing the accumulation of federal power in the office of the President. Indeed, in many ways non-delegation is problematic itself because it provides additional limitations on how Congress can choose to implement its own legislation and allows the judiciary to further aggrandize its own ability to shape the structural design of the federal government.

Rather, the point here is that an understanding of the Constitution that is skeptical of any limits on presidential power, and hostile towards the constitutional authority of Congress, will further erode the checks-and-balances built into our constitutional structure.

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Though often writing dissents and concurring opinions, Justice Thomas’s views of constitutional law from substantive due process, to equal protection, to the privileges and immunities clause have worked their way into majority opinions that are reshaping doctrinal understandings. This trend, along with Thomas’s consistent defense of the unitary executive theory, signals that we should perhaps pay attention to what might at first seem like outlier views.

It may well be that Justice Thomas’s dissent in Learning Resources is one such instance that we should heed, especially given the likelihood that the headline-grabbing nature of the majority opinion is likely to shield this opinion from much scrutiny. There is real danger in Thomas’s interpretation of Article I should it become more widely adopted. It proposes a doctrinal architecture that repeatedly favors presidential accumulation of power by limiting many enumerated congressional powers to easily returned prerogatives rather than responsibilities that must remain in Congress.

This matters because in the modern state, the most consequential governmental choices are often made in precisely the settings Justice Thomas’s framework treats as “non-core” including foreign affairs and emergency responses. IEEPA itself is an emergency statute designed to empower rapid executive action in response to “unusual and extraordinary” external threats, an area of law in which courts are already hesitant to find checks on presidential authority. It is not hard to see how that combination could nurture a presidency that increasingly resembles the very prerogative model the Constitution was drafted to resist.

Brandon J. Johnson is an Assistant Professor at the University of Nebraska College of Law where he teaches (among other things) Administrative Law and Election Law.