“Major Questions” Doctrine

Aaron Tang wrote a “Guest Essay” for the NYT April 20 about the legal doctrine called “major questions”. Tang is a law professor at U California, Davis, and a former law clerk to Justice Sonia Sotomayor.

Major questions is a doctrine invented by conservative Supreme Court justices to limit presidential power. Essentially it argues that the president cannot make decisions of great “economic and political significance” unless there has been clear authorization from Congress.

 It was used to strike down President Biden’s student loan forgiveness program and to limit the ability of the EPA to regulate greenhouse gas emissions. Now it is being used in court against the Trump administration in several situations in which Congressional authorization is lacking:

·        Tariffs

·        Freezing federal funding for government agencies and NGOs

·        Revoking birthright citizenship for children born in the U.S. to undocumented immigrants

·        DOGE’s slashing of government funding and employees

When it was used against the Biden administration Democrats complained that it was preventing the president from achieving some of his goals. Justice Elena Kagan called it a “heavyweight thumb”.

Now the tables have turned and liberals are using it to try to curb Trump’s power grab and no doubt the Republicans are complaining that it is preventing Trump from achieving his objectives.

There is an old saying “What’s good for the goose is good for the gander”.

Politicians pushing for something need to consider how it could be used by the opposition when they are in power. When the Supreme Court last July granted presidents immunity from prosecution for criminal acts committed while in office, some Democrats were urging Joe Biden to make good use of the opportunity because they knew that Donald Trump certainly would.

A more current example is the Trump administration’s pushing the president’s ability to have people arrested and deported to an offshore prison without any due process, based solely on an allegation or the whim of the leader. The Republicans should consider if they would want, say, Alexandria Ocasio-Cortez to have that power should she become the next president.

 

Source:

https://www.nytimes.com/2025/04/20/opinion/trump-challenge-supreme-court.html