In his most recent column in the Washington Post Jason Willick reacts to the Supreme Court’s decision striking down the tariffs that President Trump had imposed. His column essentially notes the striking consistency among the progressive wing of the Court’s members—they remain aligned with the position of the Democratic Party leadership consistently:
The tariffs case just decided by the Supreme Court contained a dilemma for the court’s Democratic-appointed justices. The case concerned whether a broadly worded emergency law passed in 1977 authorizing the president to “regulate” the “importation” of goods allowed Donald Trump to impose tariffs. The court said no, for very good reasons.
But four times during the Biden administration, the Supreme Court confronted similar laws apparently conferring broad fiscal or regulatory powers to the executive. And each time, the court’s Democratic-appointed justices said the Biden administration did have the power it claimed, while the court’s Republican-appointed majority disagreed. The conservative justices reasoned that Congress wouldn’t give away major powers without saying so specifically, a principle known as the major questions doctrine.
Two minds with but a single thought. George Will devoted his column to the “major questions doctrine”, too:
Under Chief Justice John G. Roberts Jr., the court’s major contribution to constitutional law has been developing the major questions doctrine. The court’s tariff decision turned on the MQD, but demonstrated its insufficiency.
He goes on to urge the Court to rule more broadly on the MQD, ruling that Congress may not delegate its Constitutional powers to the executive branch.
In the spirit of Mr. Will’s column I hasten to point out that the Supreme Court has repeatedly ruled on cases not specifically within its Constitutional reponsibilities overruling common law and previous precedent. Will the Court also rule against that implicit delegation of Congress’s powers? And who would have the standing to bring such a case?
The following is a list of some of the Supreme Court’s decisions over the last 50 years that meet that description. It is far from exhaustive. The issue I’m raising is not whether the decisions are right or wrong. It is whether they are in the Court’s scope or not.
Nor is this merely a matter of textual silence. In cases such as Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges, the Court did not simply interpret ambiguous language; it displaced long-standing state criminal and domestic-relations law—core areas of the police power historically reserved to the states—based on open-ended constitutional formulations. If the major questions doctrine demands unmistakable clarity before Congress may shift its powers to the executive, structural consistency would seem to demand comparable clarity before the judiciary nationalizes matters the Tenth Amendment leaves to the states.
I don’t care to relitigate those cases here either pro or con; that is beyond the scope of this post and largely beside the point. The point is should the Supreme Court be making these decisions or should the Congress? Courts interpret law; they do not originate policy settlements in areas traditionally governed by the political branches unless the constitutional text unmistakably requires it.
| Case | Overruled | Matter |
|---|---|---|
| Dobbs v. Jackson Women’s Health (2022) | Roe v. Wade (1973); Planned Parenthood v. Casey (1992) | Removed the federal constitutional right to abortion. |
| Kennedy v. Bremerton School District (2022) | Lemon test (1971) | Abandoned the Lemon test for Establishment Clause cases. |
| Ramos v. Louisiana (2020) | Apodaca v. Oregon (1972) | Required unanimous jury verdicts in state criminal trials. |
| Franchise Tax Board of California v. Hyatt (2019) | Nevada v. Hall (1979) | Reaffirmed state sovereign immunity from private suits in other states’ courts. |
| South Dakota v. Wayfair, Inc. (2018) | Quill Corp. v. North Dakota (1992) | Allowed states to require out-of-state sellers to collect sales tax. |
| Lawrence v. Texas (2003) | Bowers v. Hardwick (1986) | Protected same-sex sexual activity under the Due Process Clause. |
| Atkins v. Virginia (2002) | Penry v. Lynaugh (1989) | Held that executing individuals with intellectual disabilities violates the Eighth Amendment. |
| Agostini v. Felton (1997) | Aguilar v. Felton (1985); School District of Grand Rapids v. Ball (1985) | Permitted public school teachers to provide remedial education in parochial schools. |
| United States v. Dixon (1993) | Grady v. Corbin (1990) | Reinstated the “same-elements” test for Double Jeopardy analysis. |
| Planned Parenthood v. Casey (1992) | Parts of Akron v. Akron Center for Reproductive Health (1983); Thornburgh v. ACOG (1986) | Replaced strict scrutiny with the “undue burden” test for abortion regulations. |
| California v. Acevedo (1991) | Arkansas v. Sanders (1979) | Allowed warrantless searches of containers in vehicles with probable cause. |
| Garcia v. San Antonio Metro Transit Authority (1985) | National League of Cities v. Usery (1976) | Applied federal labor standards to state and local governments. |
| Burks v. United States (1978) | Prior cases (1950, 1955, 1960) | Held that double jeopardy bars retrial after reversal for insufficient evidence. |
| Edelman v. Jordan (1974) | Limited Ex parte Young (1908) | Restricted retroactive monetary relief against states under sovereign immunity. |
George Will’s lament for the nondelegation argument will go unheard on this Court because there’s been scholarship of late that points to the reality that the early Congress broadly delegated its Article I powers to the President. The early federal government was not a model of jealous friction between its branches, but cooperation and blending. Madison, the Speaker of the House, wrote Washington’s addresses to Congress, and Washington appointed Chief Justice John Jay to lead an important foreign delegation to Great Britain. It’s not clear that the early practice would meet George Will’s standard for Madisonian democracy, or Gorsuch’s Constitutionally required level of specificity.
Justice Thomas pointed out in his dissent that almost half of the enumerated powers granted Congress in Article I of the Constitution would have been considered executive powers in the late 18th century. Thomas’ premise, at least in part, is that there is not a delegation problem when the power delegated is not legislative.