How Brett Kavanaugh Is Putting His Thumb on the Scale for Trump

Justice Brett Kavanaugh does not work for the Trump Justice Department or the White House’s Office of Legal Counsel. Yet he helped them out quite a bit last month when, in an unrelated case, he effectively argued against using one of the Supreme Court’s most prominent doctrines to limit the president’s ability to impose tariffs at will on other countries.

In FCC v. Consumers’ Research, Kavanaugh opined in a concurring opinion that the major-questions doctrine—a tool used by the court to strike down a wide range of significant policies under the Biden administration—does not carry as much weight when a president is acting on national security or foreign policy grounds.

“The canon does not translate to those contexts because of the nature of presidential decisionmaking in response to ever-changing national security threats and diplomatic challenges,” he wrote.

The Justice Department happily cited Kavanaugh’s opinion in a filing before the Federal Circuit Court of Appeals earlier this week. The U.S. Court of International Trade ruled in May that Trump’s use of the International Emergency Economic Powers Act, or IEEPA, to impose onerous tariffs on imports with little to no warning went beyond what Congress had authorized under both the major-questions doctrine and a related one known as the nondelegation doctrine. (More on the latter doctrine later.)

“Plaintiffs invoke the major-questions doctrine, but it is inapposite here,” the department claimed, referring to the companies and states challenging the tariffs. “The delegation here is to the president, not an agency; the president’s exercise of power under IEEPA is not a novel invocation of an apparently narrow statute; and it is particularly inappropriate to construe narrowly a delegation in the arena of foreign affairs and national security, where the President’s expertise and independent constitutional authority are at their apex.”

The government’s sole citation for this point was Kavanaugh’s concurring opinion. That opinion is not binding on lower courts, and it does not necessarily reflect the views of the other eight Supreme Court justices, all of whom declined to join it last month. Even so, it shows how the relationship between Trump and the Supreme Court is increasingly more collaborative than confrontational, even in the face of acts that appear to be illegal, unconstitutional, or both.

The Consumers’ Research case in which Kavanaugh wrote centered a legal challenge to the Universal Service Fund. Congress established the fund under the Federal Communication Commission’s authority in 1996 to provide telecommunications access to low-income and rural Americans who might otherwise be underserved by market forces. By law, every telecom company in America contributes to the fund.

The FCC, which supervises the fund, permanently transferred day-to-day control of it to the Universal Service Administrative Company. Justice Elena Kagan described the company as a “private, not-for-profit corporation” in her majority opinion. In addition to its administrative functions, the company helps the FCC determine the rate at which telecom companies must contribute to the fund. After announcing the new rate for 2022 four years ago, Consumers’ Research sued to overturn the funding scheme under the nondelegation doctrine.

In its most basic form, the nondelegation doctrine holds that one branch of the federal government cannot permanently or unconditionally transfer its core powers to another branch of the government. This is a logical outgrowth of the Constitution’s separation of powers: Congress could not, for example, pass a law that automatically approved all of the president’s Cabinet and judicial nominations without individual votes.

At the same time, basic governance requires that Congress give a certain amount of latitude to the executive branch and the judiciary when interpreting and applying federal laws. Good government relies on discretion when faced with unusual circumstances and adaptability when dealing with new situations. To that end, the Supreme Court has long held that the nondelegation doctrine does not kick in so long as Congress—and it is almost always Congress at issue here—provides an “intelligible principle” to guide an agency like the FCC when exercising power delegated to it by the legislature.

Kavanaugh offered a limiting principle to the major-questions doctrine. That doctrine generally holds that Congress must “speak clearly” when authorizing federal agencies to regulate on matters of “vast economic and political significance.” The doctrine’s vague phrasing, combined with Congress’s habit of legislating in broad terms, effectively gives the court a freewheeling veto over policies it doesn’t like. To that end, the six conservative justices have used it in recent years to quash all manner of policies from Democratic presidents, from the provision of student-loan debt relief to the regulation of carbon emissions from power plants.

I emphasize that the major-questions doctrine applies to “policies from Democratic presidents” because it has yet to be used to strike down a Republican president’s policies. Trump’s tariffs seemed like the best opportunity for the court’s conservatives to demonstrate some intellectual consistency. IEEPA’s relevant text does not mention tariffs by name at all. The government argues that the power to “regulate … importation” works the same, but the “vast economic and political significance” of that question should counsel against adopting that interpretation, right? Not so, says Kavanaugh, because of national security reasons: