How Judges Can Use a Roberts-Invented Judicial Tool to Curb Trump
Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.
On top of his legally dubious commandering of the California National Guard and the Pentagon's deployment of Marines to (it claims) protect federal assets, President Donald Trump appears to be perilously close to invoking a law from the early 19th century, the Insurrection Act, as a basis for deploying regular troops to police American cities. While shocking, it is unfortunately not surprising: Trump regrets not having invoked the act to respond to protests in 2020, having been talked down by the “adults” in his administration.
With the adults long since dismissed and Congress missing in action, resistance to this Trump power grab could come from an unlikely source: federal judges. Packing the judiciary was the crowning achievement of the president's first term, which resulted in a stable of young, Trump-appointed conservative judges trained by their Federalist Society boosters. Some of these same appointees might be standing in the way of Trump's most dangerous overreaches, which to survive judicial review would require judges to exhibit broad deference to the executive branch.
Trump appears frustrated by this irony on many fronts. At the end of May, a long-simmering rupture finally spilled into the open when the president took to Truth Social to lambast “ sleazebag ” Leonard Leo and the Federalist Society, perhaps the most influential political organization so far this century. The trigger? A pair of court decisions , one signed by a Trump appointee, declaring the White House's tariff regime unlawful. (One of the district courts temporarily stayed its own order, and an appeals court later stayed the other decision from taking effect while the administration appeals.)
At first blush, the outburst might seem confusing. After all, during the Trump administration's first term, the White House and Leo worked hand in glove to stock the federal courts, above all the Supreme Court, with appointees drawn from the ranks of the Federalist Society and its allies. The results were the most consequential achievement of Trump's first presidency, leading most notably to the overturning of Roe .
However, today's MAGA movement, perhaps more than in its first iteration, has a set of ideological commitments of its own—namely, a muscular, personalist, and near-monarchical vision of executive authority (especially within certain issue areas like trade and immigration). And these priors sit uneasily alongside the Federalist Society's decadeslong bid to rein in the regulatory state that it believes bedevils corporate interests. In fact, these competing priorities have been set on a collision course for some time: The MAGA 2.0 movement's policy ambitions require precisely the type of bold, transformative executive power that the anti-administrative conservative legal apparatus has spent the past several decades attempting to frustrate.
This tension also demonstrates precisely why the administration's opponents should continue to invoke Roberts court precedents, including those they might philosophically disagree with, to oppose the administration's harmful policy agenda: Such arguments could be successful, even in conservative courts. And if progressive litigants lose with these claims, it is not all bad news. As we have argued elsewhere , litigants using anti-administrative doctrines against Trump policies could lead Trump-aligned judges to curb those doctrines, which might make future progressive governance easier.
Nowhere is the overall MAGA–vs.–Federalist Society dynamic clearer than in the chaos over Trump's tariff policy. In April, industry and states launched a wave of litigation challenging the legality of Trump's steep and widely applied “liberation day” tariffs. The litigants claimed that the tariffs would raise prices, disrupt their supply chains, and otherwise increase the costs of doing business.
One tool that the plaintiffs in all three lawsuits wielded is the major questions doctrine, a rule that was formally established in a landmark 2022 decision issued by the conservative Supreme Court supermajority that Trump built during his first term. After bubbling under the surface since the early 2000s, the major questions doctrine emerged in West Virginia v. EPA to herald a new, less deferential regime in review of agency policymaking. Under the doctrine, if an agency action is “major”—if it is novel, transformative, and economically and politically significant—then it can survive only if Congress quite specifically directed the action.
During the Biden administration, the high court repeatedly invoked the doctrine to cut down a host of progressive regulations, including the Clean Power Plan , theCOVID-19 eviction moratorium , and student-debt cancellation . Lower courts got in on the action too, using the major questions doctrine to stymie several Biden efforts. And the doctrine has metastasized beyond the regulatory context, with courts applying it to individual enforcement actions , agency guidance documents , and presidential actions . Much to the chagrin of progressive lawyers, who hoped to forestall such a development, the doctrine may have all but become, in the words of Judge Jed Rakoff , “at bottom, a principle of statutory construction,” apparently applicable wherever statutes are interpreted.
Yet, now that he has returned to the White House, Trump has to contend with anti-administrative thinking, like the major questions doctrine, fashioned by the very Supreme Court supermajority he constructed, including in the context of tariffs.
In their complaints, states and businesses argued that the political significance of the “highly novel tariffs” are “staggering by any measure,” are “ likely much larger ” than those of prior “executive actions previously found by the Supreme Court to be 'major questions,' ” and represent an “unheralded” and “transformative expansion” of presidential authority. The litigants then explained that nowhere in the text of the International Emergency Economic Powers Act, under which Trump issued his tariffs, does the statute offer the “clear congressional authorization” required by the major questions doctrine.
So far, at least two courts agree. A unanimous three-judge panel, including a Trump appointee, discussed plaintiffs' major questions doctrine claims in detail and ultimately held that , “regardless of whether the court views the President's actions through the nondelegation doctrine, through the major questions doctrine, or simply with separation of powers in mind, any interpretation of IEEPA that delegates unlimited tariff authority is unconstitutional.” Similarly, Judge Rudolph Contreras of the DC District Court cited a recent SCOTUS major questions doctrine case to explain that “if Congress had intended to delegate to the President the power of taxing ordinary commerce from any country at any rate for virtually any reason, it would have had to say so.”
Tariffs are not the only MAGA priority that might suffer at the hands of doctrines that conservative jurists have pioneered in recent years. For example, an ACLU lawyer and Judge James Boasberg agreed in a hearing that the president's reliance on a 1789 wartime law to summarily deport suspected gang members was far removed from the legislation's historical use, suggesting that principles of the major questions doctrine might apply.
These examples help illustrate one reason why progressive litigants, who might philosophically oppose frameworks like the major questions doctrine, should nevertheless invoke them to challenge harmful Trump 2.0 agenda items: They might win. That is not to say that, perhaps especially at SCOTUS, we should always expect doctrinal rigor to supersede the kinds of political considerations that often undergird high-profile decisions. But the federal judiciary does not operate in a fluid, top-down fashion. Once issued, Supreme Court precedents take on a life of their own in the district and circuit courts, which enjoy ample latitude to find the play in their joints.
Moreover, and as we have suggested elsewhere , a proliferation of major questions doctrine claims against a Republican president—even if they are ultimately unsuccessful—could have a beneficial side effect. One of the key challenges that the doctrine poses to regulatory governance is its malleability, thanks to the high court's poor articulation of the philosophy's scope and application. Bringing major questions doctrine cases against Trump policies in front of Trump-aligned judges could cause those judges to discipline the unwieldy and sprawling doctrine, a medium-to-good outcome that could prove useful for future attempts at progressive governance.
Beyond the effect on any particular lawsuits, invoking these doctrines against Donald Trump's signature policies can also help expand the fault line that has emerged between the anti-administrative conservative legal apparatus and the MAGA 2.0 movement, the policy ambitions of which require precisely the type of bold, transformative executive power that the former was constructed to impede. Driving a further wedge between these onetime allies can only redound to the collective benefit of the administration's opponents.
Sign up for Slate's evening newsletter.
