Justice Clarence Thomas’s preferred theory of constitutional interpretation is often said to be originalist, but it may be more accurately described as personalist. To Thomas, almost every American judge who served over the past two centuries wasted their lives and careers. Rather than try to determine the Constitution’s meaning to the best of their ability, they should have all waited for Thomas to tell them what it actually meant.
The senior-most justice’s approach is hardly new. Thomas has spent decades calling for dozens, if not hundreds of prior Supreme Court precedents to be overturned. He writes separately more often than any of his colleagues to expound upon his particular view of the Constitution, replete with numerous citations to his own work. As his own colleagues have said, Thomas does not believe in stare decisis or in constraining himself by the court’s prior decisions.
Even by that standard, his dissent last week in Learning Resources v. Trump is astounding. In an 17-page opinion, Thomas sketched out an utterly alien vision of the separation of powers, the scope of the legislative branch’s powers, and the founding era to argue that President Donald Trump had broad powers to levy tariffs against the American people—far beyond what any of his conservative colleagues could stomach.
“As a matter of original understanding, historical practice, and judicial precedent, the power to impose duties on imports is not within the core legislative power,” Thomas claimed. “Congress can therefore delegate the exercise of this power to the President.” Justice Neil Gorsuch, a frequent Thomas ally, broke with him to describe this approach in a separate opinion as “a sweeping theory” that “presents difficulties on its own,” in what can only be described as serious understatement.
All of this is far afield from what the other justices were talking about. At issue in the case was whether Trump’s tariffs issued through the International Emergency Economic Powers Act of 1977 were lawful. Last week, in a 6-3 majority, the court said no, they weren’t. The prevailing opinion of the court used neither the major-questions doctrine nor the nondelgation doctrine to rule against the administration. Instead, the tariffs were invalidated under what Kagan described as the “ordinary rules of statutory interpretation.”
The most notable part of the ruling, aside from the outcome, was the split between the court’s six conservatives. As I noted last Friday, three conservatives—Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett—wanted to invalidate the IEEPA tariffs on major-questions grounds. The other three—Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh—wanted to uphold it by finding a national-security exception to the major-questions doctrine. (Kavanaugh himself had proposed this in an unrelated case last summer.)
That left the three liberals as the deciding bloc, and they cast their lot with the Roberts-Gorsuch-Barrett troika, albeit on different grounds. That decision has the most bearing on future legal disputes involving IEEPA and Trump’s powers to levy tariffs through other statutes. Thomas joined Kavanaugh’s principal dissent, but also wrote one of his own. It is one of the most bizarre opinions written by a Supreme Court justice this century.
What Thomas and Gorsuch argued about is known as the nondelgation doctrine. The most fundamental version of that doctrine is that one branch of the federal government cannot permanently delegate its powers to another branch. Congress could not pass a law, for example, that says, “All of the president’s nominees are automatically confirmed without individual Senate votes” or “the commander-in-chief can pay soldiers at will without congressional appropriations.”
At the same time, basic governance requires a certain amount of discretion and adaptability by the executive branch on Congress’s behalf. In 1928, the Supreme Court set forth a test to determine what counts as a constitutional delegation versus an unconstitutional one. So long as Congress articulates an “intelligible principle” for the president or an agency to follow, the court explained, the delegation is constitutional. In the century that followed, Congress generally followed this test when crafting laws on workplace safety, environmental protection, consumer welfare, and so on.
In recent decades, legal conservatives have proposed a much stricter version of the nondelgation doctrine as part of their campaign to curb federal regulatory power. Many observers wondered if the post-Trump conservative supermajority might replace the intelligible-principle test with something more restrictive. (I was among them.) A fair number of petitions reached the court asking them to do just that, but almost all of them were turned away. A rare exception was Gundy v. United States, a 2019 case involving federal sex-offender regulations in which Alito joined the four liberals to leave the status quo intact.
Americans always operate with incomplete information when dealing with the Supreme Court. Perhaps that outcome reflected deeper fissures among the conservatives. Perhaps Alito simply voted that way because of his general deference for law enforcement throughout his tenure. Whatever the reason, it soon became clear that the Roberts Court had settled on the major-questions doctrine as its preferred tool for trimming back the administrative state, and a new version of nondelegation was not on the horizon. Kavanaugh admitted as much in last year’s aforementioned concurring opinion in Consumers’ Research.
“Many of the broader structural concerns about expansive delegations have been substantially mitigated by this Court’s recent case law in related areas—in particular (i) the Court’s rejection of so-called Chevron deference and (ii) the Court’s application of the major questions canon of statutory interpretation,” he opined. (Chevron deference, which ended last year, required courts to defer to agencies’ interpretation of their authorizing laws under most circumstances.)
Under the major-questions doctrine, the question shifts from constitutional grounds to statutory ones. Imagine that the president were to use a hypothetical New Deal-era law to seize old pumpjacks in western Texas with compensation for their owners. Let’s say the law was intended to allow oil-field workers to keep their jobs at underproducing wells during the Great Depression. Now a new Democratic president wants to use it to combat climate change by shutting them down altogether.
That move might survive judicial scrutiny under the normal rules of statutory interpretation. But the major-questions doctrine allows conservative justices to probe deeper. Did Congress, the doctrine asks, “speak clearly” enough in the law in question to authorize the executive branch to make a decision of “vast economic and political significance?” If the answer is no, then the president’s action can be invalidated without striking down the law itself.
One can see the appeal of this doctrine from the conservative justices’ perspective. On a superficial level, the major-questions doctrine protects legislative power from executive-branch abuses and thefts. But in practical terms, it retroactively applies a vague and mercurial standard—How “clearly” is clear enough? What counts as “vast”?—to a century of existing laws enacted by the people’s elected representatives. That discretion amounts to is a massive agglomeration of power by the judicial branch and, in particular, the conservative majority on the Supreme Court.
To that end, the Supreme Court has used this doctrine to invalidate a wide range of major policy decisions by Democratic presidents. For the Biden administration alone, the conservative justices used it to nix national vaccine-or-testing mandates from OSHA during the COVID-19 pandemic, a moribund Obama-era plan for regulating carbon emissions at power plants, the Biden administration’s largest effort to forgive billions of dollars in student-loan debt, and more. The major-questions doctrine, in its fully articulated form, has never been used against a Republican president. As a result, it often appears to be nothing more than a freewheeling veto on progressive policymaking that the conservative bloc can reach for whenever it suits them.
Thomas agreed with Kavanaugh’s dissent that argued there was a national-security exception to the major-questions doctrine and would have decided the case on those grounds. At the same time, he sought to shift things back to the constitutional level of analysis, which he argued was highly favorable to the executive branch. In doing so, he sought to carve out a major new exception to the nondelgation doctrine.
“The power to impose duties on imports can be delegated,” he declared. “At the founding, that power was regarded as one of many powers over foreign commerce that could be delegated to the President. Power over foreign commerce was not within the core legislative power, and engaging in foreign commerce was regarded as a privilege rather than a right.”
First, Thomas argued that the nondelegation doctrine did not apply to all of Congress’s powers, and instead only limited Congress’s “core legislative powers.” What counts as a care legislative power, you might ask? To Thomas, the “legislative power” is “the power to make substantive rules setting the conditions for deprivations of life, liberty, or property,” borrowing language from the Fifth Amendment’s Due Process Clause. He describes this as the “Blackstonian sense of generally applicable rules of private conduct, the violation of which results in the deprivation of core private rights,” referring to a prominent English judge and scholar.
There is some discussion of Magna Carta as well, and of one of Stuart-era English jurist Lord Coke’s most famous rulings on the royal prerogative in 1611. Thomas ultimately suggests that the “core legislative powers” are those once held by the British Parliament, while the non-core powers were those once held, claimed, or asserted by the British monarchy.
“These include the powers to raise and support armies, to fix the standards of weights and measures, to grant copyrights, to dispose of federal property, and, as discussed below, to regulate foreign commerce,” Thomas wrote. “None of these powers involves setting the rules for the deprivation of core private rights. Blackstone called them ‘prerogative’ powers, and sometimes ‘executive.’”
There are a few problems with this approach. One is that it has no basis in the Constitution’s text at all. This seems like a significant oversight on the Framers’ part, given the vast importance of this core/non-core division that Thomas has expounded upon. But the list of congressional powers laid out by the Constitution makes no such distinction. (Indeed, they might all be reasonably described as “core powers.”) Justice Neil Gorsuch, who frequently votes with Thomas, sounded almost taken aback when describing his colleague’s theory in his own concurring opinion.
“If all that’s true, what do we make of the Constitution’s text?” Gorsuch wrote. “Section 1 of Article I vests ‘[a]ll legislative Powers herein granted’ in Congress and no one else. Section 8 proceeds to list those powers in detail and without differentiation. Neither provision speaks of some divide between true legislative powers touching on ‘life, liberty, or property’ that are permanently vested in Congress alone and ‘other kinds of power[s]’ that may be given away and possibly lost forever to the President.”
This is a polite way of saying “you’ve made it all up.” (None of the other justices addressed Thomas’s dissent, perhaps because saying nothing would be the most polite option.) Gorsuch went on to explain how Thomas’s vision of congressional powers is unsupported by the Framers’ own words and writings, early congressional debates. Nor can any support be found from the court’s own precedents on congressional delegations, “which have never turned on Justice Thomas’s view of life, liberty or property,” Gorsuch noted.
The most bracing part of Gorsuch’s concurrence is when he reaches Thomas’s argument that Congress could delegate “the tariff power” because, as Gorsuch summarizes, it “was considered a ‘prerogative right’ of the British King.’” This is an absurd framework to apply to the United States, which does not have royal prerogatives or a monarchy. (At least, not yet.) But it was the historical errors that truly stood out.
“That seems doubtful,” Gorsuch explained as politely as possible while citing historical scholarship. “Tariffs may have been among the King’s prerogative powers during the reign of Edward I. But even before the year 1400, Parliament had achieved some ‘victory over the King in the matter of imposing import duties.’ And after the Glorious Revolution of 1688, as this Court has put it, Parliament ‘secured supremacy in fiscal matters.’” In other words, Thomas has profoundly misread the arc of crown-parliament relations in English history.
Other flaws abound. For one, even if you somehow accept Thomas’s argument, Trump’s IEEPA tariffs should still meet the threshold he describes. Surely the president’s ambitious plan to collect trillions of dollars in tariffs, which are paid by American businesses and individuals, counts as an infringement on the private right to “property”? Not so fast, Thomas said in a footnote.
“I refer to charges on imported goods as ‘duties,’ not ‘tariffs’ or ‘taxes,’” Thomas explained, citing Noah Webster’s dictionary from 1806. “When the government charged money for importing goods, that charge was historically called a custom or impost, each of which was a kind of ‘duty.’” He argued, citing sources like Benjamin Franklin, that while the revolutionary generation opposed “internal taxes” levied by the British government, they accepted Parliament’s power to “[lay] duties to regulate commerce.”
This is absurd on a few levels. First, the IEEPA tariffs are plainly meant as taxation and they operate as such, no matter what Noah Webster wrote 220 years ago. Second, Thomas’s history is once again deeply flawed. Gorsuch noted that the few revolutionary-era leaders who saw differences between “internal” and “external” taxation abandoned it as independence neared. “And, of course, it was duties on foreign tea that triggered the Boston Tea Party,” Gorsuch pointed out. “Are we really to believe that the patriots that night in Boston Harbor considered the whole of the tariff power some kingly prerogative?”
Gorsuch’s bafflement is palpable. He and other legal conservatives had spent years sketching out a vision of the nondelegation doctrine that could constrain federal regulatory agencies at the root. Now one of his closest allies has gone on to articulate a weirdly monarchical vision of the Constitution that treats the presidency as a kingship-in-waiting and Congress as a supplicatory medieval parliament, one that appears to spring entirely from his own mind. (In addition to his various historical citations, Thomas cites his own previous opinions on seventeen separate occasions, more than all of the other justices combined.)
One might be tempted to conclude that Thomas’s dissent exposes the flaws in originalism as practiced by legal conservatives and the high court. Similar criticism has been leveled against a 2022 decision that Thomas wrote about the Second Amendment and an individual right to bear arms. But that would almost be unfair to originalism and those who champion it, especially since none of the court’s other originalists found it persuasive. The only Constitution that seems to matter to Thomas is the one that exists in his imagination.
