The United States Constitution
was designed around a simple but powerful idea: three co-equal branches
of government, each checking the others so that no single institution could
dominate public life. The executive would enforce the law, Congress would write
it, and the courts would interpret it. That balance—fragile by design—has
sustained the republic for more than two centuries.
Today, however, that equilibrium
is under real strain.
A growing body of judicial
doctrine, most notably the Major Questions Doctrine (MQD), has
elevated the judiciary from interpreter to final policymaker in disputes
involving economic, regulatory, and national policy. The result is a structural
imbalance in which unelected judges exercise veto power over elected
branches—without any democratic override. Whether one applauds or opposes the
outcomes of particular rulings, the constitutional implications deserve serious
scrutiny.
This is not a partisan argument.
It is an institutional one.
These Constitutionally
established three co-equal branches of government — legislative, executive, and
judicial — were each designed to check the others. The structure was
deliberate. Power was to be divided not merely to slow government, but to
prevent dominance by any single institution.
Recent Supreme Court decisions
suggest that balance is under increasing strain.
On February 20, 2026, in a 6–3
decision in Learning Resources, Inc. v. Trump (consolidated with Trump v.
V.O.S. Selections, Inc.), the Supreme Court invalidated presidential tariffs
imposed under the International Emergency Economic Powers Act (IEEPA). Chief
Justice Roberts announced the judgment of the Court and authored the principal
opinion, which was joined in full on the core statutory holding by Justices
Sotomayor, Kagan, Gorsuch, Barrett, and Jackson (though joins varied across
sections, with some partial concurrences).
The Court held plainly: “IEEPA
does not authorize the President to impose tariffs.”
While IEEPA permits the
President to “regulate… importation” during declared national emergencies, the
majority concluded that tariffs are taxes or duties — powers constitutionally
reserved to Congress under Article I. Regulation, the Court emphasized, is not
taxation.
The opinion leaned heavily on
statutory text and historical practice. It did not formally adopt
the “Major Questions Doctrine” as the exclusive basis in every section, but
several justices—including Roberts in the principal opinion, and Gorsuch and
Barrett in concurrences—employed closely associated reasoning: where executive
action carries vast economic and political significance, courts require
unmistakably clear congressional authorization. Such clarity, the majority
found, was absent here.
The ruling’s practical effect
was to invalidate sweeping tariff measures that had major economic
consequences. Its structural effect was to reaffirm the judiciary’s authority
to determine when Congress has delegated power clearly enough.
From Judicial Review to Judicial
Supremacy
The roots of this issue stretch
back to the early 19th century. Judicial review—the power of courts to
invalidate laws they find unconstitutional—was established in Marbury
v. Madison (1803). While now treated as foundational, that
authority does not appear explicitly in the Constitution’s text. It was
inferred, accepted, and ultimately normalized.
For much of American history,
courts exercised this power cautiously, mindful of their limited democratic
legitimacy. But over time, judicial review evolved from a shield against
unconstitutional laws into a broader gatekeeping function over policy itself.
The Major Questions Doctrine
represents the latest—and most consequential—stage in that
evolution, requiring unmistakably clear congressional authorization before
agencies or the executive can resolve questions of vast economic or political
significance.
The Institutional Pattern
Two landmark cases—often cited
as evidence of ideological inconsistency—actually reveal a deeper institutional
pattern.
In NFIB v. Sebelius (2012),
the Court upheld the Affordable Care Act’s individual mandate by
recharacterizing a statutory “penalty” as a tax. While critics called this
judicial gymnastics, the underlying logic was deferential: Congress had acted,
and the Court strained to preserve that action under Congress’s taxing
authority.
Fast-forward to February 20,
2026, when the Supreme Court, in a 6–3 decision in Learning Resources,
Inc. v. Trump, invalidated presidential tariffs imposed under the
International Emergency Economic Powers Act (IEEPA). The majority held that
while IEEPA permits the President to “regulate… importation” during declared
emergencies, it does not authorize tariffs—forms of taxation
constitutionally reserved to Congress. Several justices applied reasoning akin
to the Major Questions Doctrine, requiring unmistakable congressional
authorization for actions of such sweeping economic consequence.
The outcomes differed—one
upheld, one struck down—but the through-line remains clear: the Court
asserts itself as the final arbiter of congressional delegation boundaries.
What has changed since 2012 is
not ideology, but confidence. MQD gives courts a ready-made mechanism to
invalidate executive action without rewriting statutes—and without
democratic accountability.
What the Major Questions
Doctrine Does
In its modern form, formalized
in West Virginia v. EPA (2022), the Major Questions Doctrine
holds that when an executive agency claims authority over an issue of “vast
economic or political significance,” courts should require clear and
explicit authorization from Congress. Absent that clarity, the action is struck
down.
On its face, this sounds
reasonable. Congress, after all, holds legislative power. But the doctrine
introduces several profound problems:
- “Major” is undefined. Judges decide
which policies qualify.
- The doctrine is not textual. It
appears nowhere in the Constitution.
- It is asymmetrical in practice. It
overwhelmingly constrains executive and agency action.
- There is no override. Once applied,
MQD decisions are effectively final.
In effect, the judiciary has
created a filter on political authority, allowing it to determine not only
what the law says, but when Congress has spoken clearly enough to permit
action.
The Major Questions Doctrine:
Protection or Expansion?
Proponents argue MQD protects
congressional primacy and prevents agencies from discovering sweeping powers in
vague statutes. In that view, the doctrine safeguards democracy by forcing
elected legislators to speak clearly when authorizing transformative policy.
Critics respond that MQD
substitutes judicial judgment for legislative intent. By deciding what
qualifies as “major” and what level of clarity is sufficient, courts impose a
judge-made constraint that no elected body approved.
The concern is not motive, but
structure. A doctrine that allows courts to define the limits of
delegation—without reciprocal checks—reshapes constitutional balance regardless
of intent.
The Democratic Gap
The Constitution provides checks
on every branch—except one.
- Presidents can veto legislation, but
Congress can override.
- Congress controls spending and
impeachment.
- The judiciary, by contrast, faces no
direct democratic correction when it invents or expands doctrines
like MQD.
In an era of polarization,
constitutional amendments are functionally unattainable. Clarifying legislation
often stalls. The result is a one-way ratchet: judicial authority expands
while democratic correction mechanisms atrophy.
This produces a feedback loop.
Congressional dysfunction pushes presidents to act through agencies. Courts
strike those actions down. Power flows back to Congress—but Congress remains
dysfunctional. Over time, the judiciary becomes the most powerful branch not
by ambition, but by default.
That is not what the framers
intended.
Jurisdiction Stripping: A
Constitutional Safety Valve
The Constitution does provide
Congress with one underused but legitimate tool: jurisdiction stripping.
Under Article III, Section 2, Congress may limit the types of cases federal
courts can hear.
This is not radical. Congress
exercised this power in Ex parte McCardle (1869), withdrawing
Supreme Court jurisdiction mid-case during Reconstruction. While rarely used,
the precedent is real.
Modern proposals—such as
limiting nationwide injunctions or refining appellate jurisdiction—aim not to
dismantle judicial review, but to restore institutional balance. Critics
warn of politicization, but the greater danger lies in allowing unelected
judges to define the scope of their own authority without constraint.
Jurisdiction stripping,
carefully tailored, functions as a filter on the filter—a constitutional
mechanism for reasserting co-equality among branches.
A Structural Choice the Republic
Cannot Avoid
This debate is not about
weakening courts or empowering any particular president. It is about whether
the United States remains a system of three equal branches, or drifts
toward one in which a single branch exercises final, unreviewable authority.
A judiciary that can invent
doctrines, define their scope, and apply them without democratic recourse
ceases to be merely interpretive. It becomes legislative in effect, if not in
name.
Either the Constitution
establishes co-equality—or it does not. Either democratic authority ultimately
rests with the people and their representatives—or it migrates permanently to
the bench.
The Constitution is not
self-executing. It survives only if its structure is respected, maintained,
and—when necessary—corrected. Without effective checks, even the most elegant
charter becomes little more than words on parchment.
The question now is whether
Congress—and the public—are prepared to act before balance gives way to
permanence.
But in doing so, establishes itself as the final source of what democracy is allowed to do.
It’s the paradox of a referee who can rewrite the rulebook midgame and answer to no one.
But Congress is gridlocked and barely functional.
Therefore, the Court effectively ensures policy paralysis, which pushes people toward executive fiat (which the Court then strikes down).
That’s a feedback loop — the slower Congress gets, the more powerful and decisive the Court becomes.
And that’s where U.S. democracy now lives: in a slow-motion institutional spiral created by procedural imbalance.
