A Small Step Towards Restoring the Separation of Powers

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Apr 16

Written By Joseph K. Griffith II and Gabriel Perez-Polanco

In Federalist #47, James Madison warned that consolidated power posed an existential threat individual liberty, calling “the accumulation of all powers, legislative, executive, and judiciary in the same hands” “the very definition of tyranny.” Attempting to persuade the people of New York to ratify the proposed Constitution, Madison wrote that the “dangerous tendency” of rulers to aggrandize their authority meant that dividing the powers of government was an absolute necessity. “No political truth is certainly of greater intrinsic value,” he wrote, than the principle of separation of powers.

But Madison knew that, absent reinforcement, these boundaries on the government’s authority were paper thin. As Martin Diamond, one of the great students of American politics, once wrote, the solution was to build the Constitution on the “solid but low” foundation of human nature. As Madison wrote in Federalist #51, the proposed Constitution would buttress these parchment barriers by channeling the human desire for power in the right direction: if each of the three branches of government possessed the tools to defend itself against encroachments from the others, then “ambition” could be made to “counteract ambition.”

In the twenty-first century, Madison’s warning seems as relevant as ever. But while Madison argued that the Constitution would tie “the interest of the man” to “the constitutional rights of the place,” it seems that Congress has lost its institutional mojo. Each successive presidential administration seems to rule by a vast array of executive orders, left mostly unchecked by the branch vested with “all” the legislative powers of government granted by the Constitution.

Recently, the judiciary has attempted to come to the rescue. In the last four years, the Roberts Court has consistently defended the powers of Congress from presidential overreach by means of the “major questions doctrine.” This principle announces the expectation that Congress will speak clearly when authorizing the president to take action of major “economic and political significance.” In other words, courts should be skeptical when presidents claim “broad, expansive power” based on “uncertain” statutory language. Congress does not delegate “highly consequential power” through “ambiguous” text. “Congress seldom effects ... sea changes through ‘vague language.” Congress does not hide elephants in mouseholes.

In its recent opinion of Learning Resources v. Trump, the Supreme Court struck down President Trump’s stunningly broad tariff regime. The decision represents a small step towards demonstrating its non-partisan commitment to the separation of powers—and, importantly, the Court’s first attempt to restrain a Republican president under the major questions doctrine.

The Court has, until now, employed the major questions doctrine in only one direction: against the progressive policies of Democratic presidents.

In 2022, for example, the Court ruled in West Virginia v. EPA that the Obama administration overstepped its statutory authorization by attempting to overhaul the country’s electric grid through an ambitious cap-and-trade regulatory regime. If Congress meant to empower the president to implement a politically controversial, nationwide shift to green energy—that would have “reduced GDP by at least a trillion 2009 dollars by 2040”—it would not have done so in an obscure, ambiguously worded statute.

That same year, the Court ruled in National Federation of Independent Business v. OSHA, that the Biden administration usurped Congress’ authority by requiring employees of large companies to be vaccinated against COVID-19. In a concurring opinion, Justice Neil Gorsuch faulted President Biden for attempting to exploit “unintentional, oblique, or otherwise unlikely delegations of the legislative power” in order to accomplish his policy objectives. According to the Court, Congress tasked OSHA with setting “workplace safety standards,” “not broad public health measures,” even during times of emergency.

Finally, in 2023, the Court struck down the Biden administration’s attempt to cancel a "staggering" $430 billion in student-loan debts. Again, the Court overturned the order under the major questions doctrine, ruling that the president was claiming “virtually unlimited power to rewrite” the law by pointing to a vague statute. While the act in question did authorize the president to “waive” payments “in connection with a war or other military operation or national emergency,” the Court wrote that the administration “‘modified’ the cited provisions only in the same sense that ‘the French Revolution “modified” the status of the French nobility.’”

The Court’s fidelity to the principle of separation of powers in these cases—and therefore opposition to certain policies of the Obama and Biden presidencies—has earned it the ire of progressives inside and outside the Court. In their dissenting opinions in major questions cases, the Court’s “liberal” justices have accused their peers of taking an “anti-administrative-state stance” in order to thwart Congress’ attempt to empower administrators with scientific and technical expertise. And in a September 2025 Gallup survey measuring attitudes toward the Court and other governmental institutions, 43% said the Supreme Court is too conservative, a much higher percentage than the 17% who said it is too liberal.

But all eyes were on the Court as it considered the limits of executive power when a Republican was in the White House. Early in his presidency, President Trump declared a national emergency in response to “drug trafficking” and America’s “trade deficits” and then imposed a “dizzying array” of tariffs on nearly “every nation in the world.” What authorized the president’s tariffs? According to Trump, two words from the International Emergency Economic Powers Act (IEEPA) empowered the president to impose tariffs in response to emergencies: “regulate... importation.”

The economic and political consequences of Trump’s tariffs were, to put it mildly, major. According to Trump, these tariffs would determine whether “we are a rich nation” or a “poor” one; and he maintained that they would reduce the national deficit by approximately $4 trillion and add $15 trillion to the economy. The restructuring of the energy grid, a vaccine mandate, and the forgiveness of $430 billion of student-loan debt look like small potatoes in comparison.

In its 6-3 decision of Learning Resources v. Trump, the Court held that IEEPA did not authorize Trump’s tariffs. Writing for the Court, Chief Justice John Roberts dismissed the assertion that Congress, by using the words “regulate” and “importation,” intended to delegate to the executive branch the unilateral authority to impose “tariffs of unlimited amount and duration, on any product from any country.” “Those words cannot bear such weight,” Roberts wrote. Invoking the major questions doctrine, Chief Justice Roberts argued that when Congress intends to confer power, “it does so clearly and with careful constraints.” IEEPA did not do so here.

Moreover, the Court ruled, the major questions doctrine demands zealous protection of Congress’ core functions from presidential encroachment. Tariffs are best understood as taxes, as Chief Justice John Marshall wrote in the landmark 1824 case of Gibbons v. Ogden.And Article I, Section 8 of the Constitution very clearly gives Congress, and “Congress alone,” the power to “collect Taxes, Duties, Imposts and Excises.” A tariff is a tax, and only Congress has the power to tax. Like Presidents Obama and Trump before him, President Trump overstepped his constitutional authority.

At a press conference following the decision, President Trump labeled the ruling “deeply disappointing” and called his own nominees, Justices Amy Coney Barrett and Neil Gorsuch, “an embarrassment to their families,” as well as “unpatriotic and disloyal to our Constitution.” “I’m ashamed of certain members of the court, absolutely ashamed for not having the courage to do what’s right for our country,” he said.

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. And in applying the major questions doctrine for the first time against a Republican administration, it is demonstrating that its commitment to the separation of powers rises above short-term, tribalistic politics. The opinion models how to think constitutionally rather than partisanly. No president, Democratic or Republican, may claim the role of Congress—because as Madison knew well, keeping the powers separated is an “essential precaution in favor of liberty.”