A Small Step Towards Restoring the Separation of Powers (Joseph K. Griffith II and Gabriel Perez-Polanco, 4/16/26, Ford Leadership Forum)
But by striking down a Republican president’s signature “legislative” victory under the major questions doctrine, the Supreme Court correctly exercised its constitutional role by saying what the law is, not what it should be. And in doing so, it has made an able defense of Congress’s role in our constitutional government. Unlike the executive branch, the Constitution equips our bicameral legislature for the deliberation necessary for the creation of moderate, stable, and maybe (just maybe) just laws.
To be sure, intra-Court debates portend a rocky road ahead for the major questions doctrine. Justices Gorsuch and Barrett disagree on the best way to characterize it. Though concurring in the judgment, Justices Kagan, Sotomayor, and Jackson refused to sign onto the Chief Justice’s reasoning. And in the dissent, Justice Kavanaugh argued that the doctrine should not apply in foreign-policy contexts, and Justice Thomas argued (unpersuasively) that “Congress may hand over the President most of its powers, including the tariff power, without limit.” Moreover, after the decision, President Trump quickly appealed to other statutes, such as the Trade Expansion Act of 1962 and the Trade Act of 1974, in order to reinstate versions of many of his tariffs (though, as Jack Goldsmith has pointed out, these laws require procedures that limit the President’s ability to act quickly and expansively).
Still, taken as a whole, the Court’s decision in Learning Resources v. Trump represents a small step towards Madison’s vision of a government of separated powers.