Since beginning his second term, President Trump has issued a wave of executive orders reshaping tariff policy. For a deeper dive, check out this firm’s earlier posts: “Which Trade Pill to Swallow: The Red Pill or Blue Pill” and “The Tariff Matrix Reloaded.” Now, those tariffs are facing legal pushback. In two standout cases—V.O.S. Selections, Inc. v. Trump and Learning Resources, Inc. v. Trump—courts have sided with businesses challenging the tariffs. A wine and spirits importer and a group of toy companies both successfully argued their cases using the major questions doctrine, scoring wins at the Federal Circuit and district court levels.
The Court’s reasoning in these two cases follows a broader judicial trend: neither government agencies nor the executive may assert sweeping authority based on vague or ambiguous statutory language. When it comes to “major questions” of economic or political significance, the legislative branch must speak clearly. This has come to be known as the major questions doctrine.
While this doctrine naturally flows from the Nation’s commitment to the separation of powers, the major questions doctrine was not so-named by the Supreme Court until 2022, in West Virginia v. EPA. In this case, the Court addressed the Environmental Protection Agency’s (EPA) 2015 Clean Power Plan, a new way to regulate emissions.
The Clean Power Plan would have had far-reaching impacts not only on power plants but also on consumers, as any increases in the costs of energy production would be passed on to them. Put simply, the EPA’s rules would have had a major economic impact. The Court determined that the section of the Clean Air Act the EPA cited did not clearly authorize that agency to regulate emissions in this way. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” So, in the absence of such a clear delegation from Congress, the EPA could not implement the Clean Power Plan.
West Virginia v. EPA applied the major questions doctrine to federal agencies. Since then, courts have been increasingly signaling that both federal agencies and the President require explicit statutory authorization before they can issue any regulations or orders that will have a significant economic or political impact.
In V.O.S. Selections and Learning Resources, the U.S. Court of Appeals for the Federal Circuit and the U.S. District Court of D.C. ruled that the President’s tariff orders are not expressly contemplated by the International Emergency Economic Powers Act (IEEPA), the statute the President cites as his authority to act. In the dispute over IEEPA tariff authority, the Court considered the novelty of a president relying on IEEPA to levy tariffs, the lack of express language in IEEPA addressing tariffs, and the sweeping impact the President’s tariffs have politically and economically. Attuned to the larger trend in invoking the major questions doctrine, the Court discussed the need for unambiguous Congressional authorization. To interpret the IEEPA as authorizing tariffs would “[require] a clear statement from Congress [because] the interpretation . . . would have a ‘question of ‘deep economic and political significance’ that is central to [the] statutory scheme.’” Utilizing the major questions doctrine, both courts determined that the President does not have Congressional authorization to levy tariffs.
Following these decisions, the Supreme Court granted the government’s request to review the Federal Circuit’s decision in V.O.S Selections. It also granted Learning Resources’ request for expedited review before the D.C. Circuit hears the case. These cases have been consolidated and are scheduled to be heard the first week of November.
The Supreme Court in 2025 decided FCC v. Consumers’ Research. In this case, the Supreme Court addressed the extent of the Federal Communications Commission’s (FCC) authority in overseeing the Universal Service Fund, a redistribution program that spreads the cost of telecommunications services in low-income households, rural areas, libraries, hospitals, and schools across all consumers.
The Court determined that the Communications Act is sufficiently clear in granting the FCC the authority it claimed to possess. In his concurrence, Justice Kavanaugh expresses concern for broad delegations of legislative power, citing West Virginia v. EPA and invoking the major questions doctrine. He states, “courts ‘presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies.’” Here, the agency overcame the presumption.
Also in his concurrence, Justice Kavanaugh foreshadows his position in the consolidated V.O.S. Selections and Learning Resources case, or any future dispute over IEEPA tariff authority. Justice Kavanaugh suggests that the major questions doctrine may be limited to domestic matters. He writes “the major questions canon has not been applied by this Court in the national security or foreign policy contexts, because . . . the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people.”
It will be interesting to see how the major questions doctrine impacts tariffs and any other executive orders. What was once celebrated as a check on federal agencies (and the so-called “administrative state”) may now be applied to the President as well. Depending on the Supreme Court’s ruling in the consolidated V.O.S. Selections and Learning Resources case, there are likely to be numerous challenges to executive actions in the coming months.
Should the Supreme Court determine that the major questions doctrine limits the President’s power, the President will likely need clear congressional authorization before taking any future action, as it is difficult to imagine an executive order that would not touch an issue of major political or economic impact. Anything that merits the President’s attention typically has major political implications.
Similar issues will continue to arise in state courts, forcing state courts to determine whether they will adhere to the major questions doctrine. West Virginia v. EPA has been invoked by the Arizona Supreme Court to hold the Arizona Department of Administration accountable, the North Carolina Supreme Court to hold the Office of Administrative Hearings accountable, and a dissenting Alabama Supreme Court chief justice in an attempt to hold the Alabama governor accountable. Just as at the federal level, state courts seem to be trending towards utilizing the major questions doctrine to hold the entire executive branch accountable, not just agencies.
The elucidation of the meaning of the major questions doctrine, and its expanded application, coupled with the recent overturn of Chevron, signals widespread judicial disenchantment with the once unbridled power of the executive branch. It will be interesting to see how this call on Congress to speak clearly impacts legislation moving forward.
For businesses, the major questions doctrine necessarily implies a level of uncertainty, at least at present. Heightened scrutiny of regulatory actions may delay or derail agency initiatives, especially those with economic or political stakes. Restoring power to the legislative branch should give businesses increased opportunity to anticipate and prepare for changing compliance requirements, since the legislative branch is slower to act than the executive. With the ever-changing nature of statutory and regulatory schemes, compliance can be challenging.
