Learning Resources, Inc v. Trump - Gorsuch Goes Renegade: The Champion of the Major Question’s Doctrine
In Learning Resources, Inc v. Trump, Justice Neil Gorsuch issued one of the most comprehensive concurring opinions of the 2026 term — part constitutional treatise, part structural warning, and part pointed critique of nearly every other member of the Court. While he agreed with the majority that President Trump’s use of IEEPA (International Emergency Economic Powers Act) to impose sweeping global tariffs exceeded statutory authority, his solo concurrence extended far beyond the statutory holding. It not only defended the major questions doctrine and non‑delegation principles but also critiqued and rejected the opposing opinions of his colleagues across the ideological spectrum.
At its core, Justice Gorsuch’s concurrence argues that under the major questions doctrine, the Constitution does not permit Congress to delegate major economic powers — in this case, the power to tax — unless Congress says so in clear, unmistakable terms. In his view, IEEPA contains no such clarity. Instead, the statute authorizes the President to “regulate” economic transactions in emergencies, but nowhere does it grant the power to impose tariffs, which Gorsuch characterizes as a form of taxation traditionally and constitutionally belonging to Congress. As the plurality (composed of the Chief Justice and Justices Gorsuch and Barrett) acknowledges, when Congress delegates tariff power, “it has done so in explicit terms, and subject to strict limits,” a point that reinforces Gorsuch’s reading.
But Gorsuch goes beyond textual interpretation. His concurrence sharply criticizes Congress for enabling, and sometimes encouraging, presidents to unilaterally reshape major areas of domestic and foreign economic policy. He frames this dynamic as part of a long‑term institutional decline: Congress, in violation of the non-delegation doctrine, increasingly abdicates its constitutional duties by passing broadly worded statutes that vest the President with power that should remain firmly in legislative hands. In his words, “We delude ourselves, too, if we think that power will accumulate safely and only in the hands of dispassionate ‘people . . . found in agencies.’”
Gorsuch’s concurrence then turns to his colleagues. He begins with Justice Kagan and the Court’s liberals. Kagan, joined by Justices Sotomayor and Jackson, argued that the case could be resolved through ordinary statutory interpretation without invoking the major questions doctrine at all. However, Gorsuch rejects this idea that the doctrine is unnecessary, insisting that ignoring it risks allowing executive power to expand whenever Congress uses broad language, and crucially, without any way to retrieve that power. In Gorsuch’s words, “Once this Court reads a doubtful statute as granting the executive branch a given power, that power may prove almost impossible for Congress to retrieve.”
Another prominent feature of Gorsuch’s concurrence is his claim that the Court’s liberal justices are effectively using the major questions doctrine even as they claim to reject it. He points out that their reading of IEEPA in this case is far narrower than the broad interpretive stance they adopted in earlier disputes involving sweeping executive action under the Biden administration. These justices rejected the major questions doctrine and favored expansive constructions of statutory delegations, as in Nebraska v. Biden (2022) regarding the HEROES Act. But in this case, Gorsuch argues, they adopt a far more constrained approach, insisting that IEEPA’s general language cannot support the extraordinary power Trump claimed. To him, that narrower interpretive stance “looks remarkably like” the major questions rule—specifically, the rule that when the Executive asserts an extraordinary power, it must identify clear statutory authority.
Next, he takes aim at Justice Barrett, who wrote separately to argue that the major questions doctrine is simply an ordinary application of textualism, saying that it “situates text in context.” In Nebraska v. Biden, Barrett’s “babysitter” hypothetical framed Congress as a parent, an agency as the babysitter, and statutory authority as the instruction to “make sure the kids have fun,” arguing that ordinary linguistic context would not permit broad interpretations like a multiday amusement‑park trip. Gorsuch responds to this by insisting that the doctrine must be grounded in structural constitutional principles rather than solely in intuition. He countered that her analogy cannot work on “common sense” alone because the only reason the babysitter lacks that authority is an external, subjective interpretation of “have fun.” As he argues, the better solution would be to have consistent rules — the major questions and non-delegation — that remove any subjective intuition.
Finally, Gorsuch directed significant criticism at the dissenters — Justices Thomas, Alito, and Kavanaugh. These three argued that past statutes and history justified the President’s tariff actions. But as Gorsuch noted, each had previously defended the major questions doctrine when limiting executive power under President Biden, such as in 2022’s West Virginia v. EPA. Nevertheless, in this case, the dissenters argue that the major questions doctrine does not apply to issues of foreign affairs, as history and tradition demonstrate the President’s preeminence in this sphere. Gorsuch pushes back on this belief, arguing that the dissenter’s logic would allow Congress to “wholesale” delegate their explicit Article I powers relating to foreign affairs — such as establishing rules for naturalization — to the President without a method of retrieving that power.
Gorsuch’s concurring opinion simultaneously acts as a defense of Congress’s Article I responsibilities, a warning against executive aggrandizement, and a candid critique of his colleagues’ methods. By calling out inconsistencies, sharpening doctrinal lines, and pushing the Court to speak clearly about structural limits, Gorsuch articulated a vision of constitutional governance in which neither Congress nor the Court can afford to be passive. His concurrence ensures that the debate over the major questions doctrine — and the balance of power more broadly — contributes to the ongoing debate over the scope of the major questions doctrine.