My New Just Security Article on the Nondelegation and Major Questions Doctrines

The Just Security website just published my article entitled “Nondelegation and Major Questions Doctrines Can Constrain Power Grabs by Presidents of Both Parties.” Here is an excerpt:

On May 28, the U.S. Court of International Trade (CIT) issued a unanimous ruling against President Donald Trump’s massive “Liberation Day” tariffs, in a case filed by Liberty Justice Center and myself on behalf of five U.S. businesses harmed by the tariffs. The ruling also addressed a related case filed by twelve states led by Oregon. The decision was in large part based on the nondelegation and major questions doctrines: two legal doctrines backed by many conservatives and libertarians, but viewed with suspicion by many on the left. That opposition is misguided. The CIT’s tariff decision illustrates how the two doctrines help protect the constitutional separation of powers, and curb abuses by presidents of both parties….

In Federalist 47, James Madison warned, that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny,” and emphasized that the president “cannot of himself make a law.” The nondelegation doctrine helps keep these safeguards in place by preventing Congress from giving away its authority to the executive….

The nondelegation and major questions doctrines have long been criticized by progressives as mere tools for conservative judges to strike down liberal policies. But, in the IEEPA cases, both conservative and liberal judges used them to strike down a major initiative of a Republican president. The nationwide eviction moratorium struck down under the major questions doctrine during the Biden administration was actually first adopted by Trump (Biden extended it with minor modifications). These examples show the two doctrines can be used to counter power grabs by presidents of both parties, forestalling the kind of monarchical one-person rule the Framers of the Constitution sought to prevent. Indeed, Trump’s IEEPA abuses in some ways reenact King Charles I’s imposition of “Ship Money” taxes without parliamentary authorization, a power grab that helped precipitate the English Civil War.

Nondelegation is also often criticized because of the difficulty of determining when delegation goes too far. That problem is real. But we can at least agree that delegation of vast, sweeping authority like that claimed by Trump under IEEPA is excessive.

Major questions doctrine has likewise been criticized for being arbitrary and a deviation from normal rules of statutory interpretation. But there are two compelling rationales for it. If the Supreme Court remains unwilling to impose more than minimal nondelegation constraints, MQD is a more modest alternative, which at least requires Congress to be clear about its intention to delegate broad authority. In addition, as Supreme Court Justice Amy Coney Barrett emphasized in a concurring opinion in the student loan case, MQD is justified by the “commonsense principle… of communication” that we generally expect clearer, more precise statements of intent when we delegate broad power to an agent than when we delegate relatively narrow authority….

The IEEPA tariffs are not the only right-wing power grab that could be curbed by nondelegation and MQD. Trump has also claimed vast sweeping powers over immigration and imposing conditions on recipients of a staggering array of federal spending grants, including state governments and private institutions such as universities and schools. More generally, the “national conservatives” who have come to dominate the Republican party have an extensive agenda of federal government intervention in many aspects of society.

Trump’s newly announced travel ban barring nearly all or most immigration from 19 countries is the kind of measure that may be vulnerable to a nondelegation challenge. It relies on an interpretation of immigration law that gives the president virtually unlimited power to restrict migration for virtually any reason he deems to be in the “interests of the United States.” If an unlimited grant of tariff power is unconstitutional, the same may be true for unlimited executive power to impose immigration restrictions.

In currently ongoing litigation over his federalization of the California National Guard, and use of the military for domestic policing in Los Angeles, Trump is claiming Congress has delegated virtually unlimited authority to deploy the military domestically, and use it for ordinary law enforcement. If so, it would be a boundless delegation of Congress’ constitutional authority to “provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions.” Trump essentially claims he has been granted unreviewable authority to determine whether an “invasion,” a “rebellion,” or other grounds for federalizing the National Guard exists. Such massive, sweeping power surely violates nondelegation, much like a grant of unlimited authority to impose tariffs. And, for obvious reasons, it is extremely dangerous for any one person to have unconstrained authority to use the military domestically. Such power can easily be abused to target political opponents of the incumbent president. Major questions doctrine might also apply here, in so far as the scope of the power granted by Congress is not completely clear on the face of the relevant laws.

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