With increasing frequency in recent years, the White House has run afoul of a legal theory that has come into vogue among the Supreme Court’s conservatives: the major questions doctrine. It’s a trend we’ve covered quite a bit at TPM.
The newish “doctrine” holds that for the executive branch to take action on a “major question,” it must explicitly be granted the power to do so by Congress. What is a “major question”? The Court decides! You can see how this might be useful to justices who are particularly eager to tie the hands of regulatory agencies.
The Court’s ever-more right-wing majority has gestured toward the doctrine increasingly frequently, using it nearly exclusively to block policies championed by Democratic administrations, including Obama’s Clean Power Plan, aimed at diminishing U.S. reliance on coal, and Biden’s student loan forgiveness plan.
Yet Trump has scrambled everything. Tying the hands of regulatory agencies is a very 2024 area of right-wing legal concern. We are in a brave new world now, where the executive branch eschews such things as “helping” “borrowers” or “protecting” the “environment.” And, so, oral arguments in the tariffs case last November saw the liberal justices somewhat trollishly needling the Trump administration’s solicitor general (and, implicitly, their major questions doctrine-loving colleagues) about how sweeping tariffs reshaping the global economy could possibly not run afoul of the doctrine when, for example, student loan forgiveness did.
Some of the conservatives took the bait, Layla A. Jones wrote in our Friday coverage of the ruling. Justices John Roberts, Amy Coney Barrett and Neil Gorsuch all leaned in part on the major questions doctrine to block Trump’s tariffs. The three liberal justices joined their majority, but argued that you didn’t need to point toward any doctrine, that normal interpretation of the law as written was enough to come to the conclusion that Donald Trump had gone far beyond the powers granted to him in the emergency statute he cited to impose tariffs.
Lest the Court be accused of ideological consistency, however, Justices Sam Alito, Clarence Thomas and Brett Kavanaugh dissented, finding in part that, despite their previous enthusiasm for Biden-era major questions doctrine decisions, the legal theory doesn’t apply “in the foreign affairs context, including in foreign trade.” That, as much as anything else, is the news from Friday’s ruling: that half of the conservative wing of the Court was willing to contort itself in fresh ways to yet again expand the power of Trump’s executive branch.
— John Light
‘A Disgrace to Our Nation!’
After the Supreme Court published its 6-3 decision overturning all of President Donald Trump’s tariffs imposed using the International Emergency Economic Powers Act, or IEEPA, the president called liberal justices “a disgrace to our nation” and accused conservative justices who ruled against him of disloyalty to the Constitution.
Trump also nodded at the at least five other provisions granting the executive branch tariff authority, none of which were at issue in the IEEPA case.
Each of the provisions offer a more restrictive avenue for charging a tax on foreign imports.
A Bloomberg Law explainer dug into the alternative provisions, which the administration has been considering for months.
Three of the five provisions — Section 232 of the Trade Expansion Act of 1962 and Section 201 and 301 of the Trade Act of 1974 — require a federal investigation. Under the first, the Commerce Department has 270 days to return a decision on whether the importation of certain goods are a threat to national security. Under Section 201, the International Trade Commission must hold public hearings and get public comment, and U.S. Trade Representative is usually required to meet with targeted foreign governments before the president can tariff goods under Section 301. Sections 201 and 301, along with Section 122 of the same act, limit tariff duration. And three of the five provisions — Section 338 of the Smoot-Hawley Tariff Act of 1930, along with Sections 301 and 122 — restrict the tariff rate. The approaches are more piecemeal, can apply to just specific products or industries, and take far longer to enact than a stroke of Trump’s pen.
— Layla A. Jones
Will MAHA Help or Hurt Republican Candidates in the Midterms?
I have been contemplating for some time now whether and to what extent the Health and Human Services Secretary Robert F. Kennedy Jr., his highly controversial decisions over the past year and his loyal Make America Health Again (MAHA) movement will become a leading issue in the upcoming Republican primaries and general elections for congressional seats.
The MAHA movement has its own ride-or-die followers, but it remains to be seen how enduring the movement’s overlap is with the GOP voter base.
MAHA PAC, a group headed by prominent movement activists, certainly seems to think you need MAHA behind you if you want to win as a Republican — and wants the party to understand their support is not guaranteed.
“Over the last decade, Republicans who have failed to embrace the gift of the MAGA movement have had their political careers meet an untimely demise because they failed to connect with the new Republican coalition built by President Trump,” Tony Lyons, a leading MAHA activist, wrote in a memo shared with the press this month, urging Republican leadership to use MAHA talking points to win elections. “Republicans serving now shouldn’t make the same mistake and fail to embrace the new gift of the MAHA movement.”
Despite MAHA’s self proclaimed power, progressive groups like Protect Our Care, which advocates for lawmakers to expand access to health care, see RFK Jr. as a major weakness for the Republican party in general.
“It’s a complete head scratcher to me, why anyone in the White House or on the campaign trail thinks that that Freakazoid, RFK Jr., would be a benefit to any Republican candidates anywhere in the country,” Brad Woodhouse, president of Protect Our Care, told TPM. “This is someone who is extraordinarily unpopular. ”
“The coalition that he had, that people felt like there was some political benefit to, is tearing apart at the seams,” Woodhouse added. “And every position that he’s taken on vaccines and science and public health, and what they’ve done to health care — cutting Medicaid, cutting the Affordable Care Act — is so extraordinarily unpopular that we’d pay to put him on the road. I’d paid for his travel to go out and campaign for Republicans.”
— Emine Yücel
Virginia Democratic Redistricting Effort Faces Setback
In a loss for Democrats, a county judge in Virginia temporarily blocked the advancement of an April voter referendum to approve new Democratic-favoring congressional maps ahead of the midterm elections.
Siding with Republicans, Tazewell Circuit Court Judge Jack Hurley Jr. on Thursday granted an emergency injunction filed by the Republican National Committee, halting the Democratic-led April 21 referendum from occurring.
As a reminder, the state supreme court ruled earlier this month that the referendum could move forward. The state supreme court, however, has yet to make a final ruling on whether or not the proposal is legal.
On Wednesday, the RNC filed a lawsuit against Virginia election officials, arguing that both the redistricting proposal and the April referendum are unconstitutional.
In his Thursday ruling, siding with the RNC, Hurley said that the ballot language — in particular, the description that the proposal “restores fairness” — actually, according to Hurley, “destroys fairness, is the product of unfairness and is intended to increase unfairness.”
Thursday’s ruling is the latest development in a larger redistricting battle.
For months now, Trump has been pressuring red states across the country to adopt new gerrymandered maps as a way to ensure Republicans maintain control of the U.S. House in the midterm elections.
States like Virginia, California, and Maryland have responded with new Democratic-favoring maps of their own as a way to offset the impact of Trump’s gerrymandering blitz.
— Khaya Himmelman
