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Guest Essay
April 20, 2025, 1:00 a.m. ET
By Aaron Tang
Mr. Tang is a professor at the University of California, Davis, law school and a former law clerk to Justice Sonia Sotomayor.
A legal doctrine popularized by conservatives on the Supreme Court to constrain the reach of regulatory agencies is now being brandished by opponents of President Trump to challenge his seemingly boundless claims of presidential power.
It is quite a turnaround.
In the hands of the conservative justices, the so-called major questions doctrine was used to strike down the Biden administration’s student loan forgiveness program and to limit the Environmental Protection Agency’s ability to regulate greenhouse gas emissions.
The doctrine, a particularly potent brand of judge-made law that coalesced in Supreme Court rulings in recent years, requires the government to point to a “clear congressional authorization” when it makes decisions of great “economic and political significance.”
Now, as the saying goes, what goes around, comes around. And it is not likely to be good for Mr. Trump.
One of the most recent challenges against the Trump administration was brought by a conservative legal group, the New Civil Liberties Alliance, against the president’s economy-rattling tariffs. Because the tariffs present a matter of “vast economic and political significance,” the group argues in its lawsuit, the major questions doctrine requires the president to show that the law he invoked “clearly authorizes” the tariffs. “The president cannot make that showing,” the group asserts on behalf of a Florida stationery retailer.
