Textualist Tension: Can the Major Questions Doctrine Be Reconciled with Textualism?

Zach Liebl*

In February of 2026, the Supreme Court held in Learning Resources, Inc. v. Trump that the International Emergency Economic Powers Act, which gives the President the power to, among other things, “regulate . . . importation,”¹ does not authorize the President to impose tariffs.² Six justices agreed with this conclusion, but they disagreed in their reasoning. Justices Kagan, Sotomayor, and Jackson argued that the outcome was supported by “the ordinary tools of statutory interpretation.”³ While Chief Justice Roberts and Justices Gorsuch and Barrett invoked the so-called Major Questions Doctrine.⁴ What the Major Questions Doctrine is and how it works, however, are far from clear. In Learning Resources and other, earlier cases, Justices Gorsuch and Barrett, both textualists, have developed different understandings of the doctrine.⁵ In this Blog, I first describe the Major Questions Doctrine, including Justice Gorsuch’s and Justice Barrett’s views. Then, I argue that Justice Gorsuch’s view is inconsistent with textualism while Justice Barrett’s is arguably consistent

I. What Is the Major Questions Doctrine?

The Major Questions Doctrine might be described as the idea that “Congress does not usually ‘hide elephants in mouseholes.’”⁶ It is rooted in the belief that extraordinary grants of power are not hidden in “ambiguous statutory text.”⁷ Accordingly, the Supreme Court has used the Major Questions Doctrine to invalidate various attempts to enact significant political or economic policy changes through “ambiguous statutory text.”⁸

For example, the Court has refused to interpret the power to “waive or modify” laws about financial assistance programs to include the power to cancel $430 billion in student loan debt;⁹ the power to determine the “best system of emission reduction” to include the power to move the nation away from coal;¹⁰ or power to ensure “safe and healthful working conditions” to include the power to impose a vaccine mandate on eighty-four million Americans.¹¹

Under the doctrine, when the Government claims “broad, expansive power on an uncertain statutory basis,” the Court requires the delegation to be “clear[],” even where “the statutory text might as a matter of definitional possibilities have been read to delegate the asserted power.”¹² The basis for this “clear” delegation requirement, and its effect on ordinary statutory interpretation, however, is contested.

a. The Gorsuch View

Justice Gorsuch sees the Major Questions Doctrine as a means of protecting constitutional separation of powers.¹³ Even when there are strong arguments that “statutory language, commonsensically read, grant[s] the power [the President or an agency] claim[s],” the Major Questions Doctrine acts as a “dice-loading rule . . . designed to protect Article I . . . .”¹⁴ In his understanding, the Major Questions Doctrine is a strong-form substantive canon,¹⁵ that is, it “operate[s] as an interpretive trump card” allowing judges to overcome the most natural reading of the text in favor of external policy considerations.¹⁶ By imposing a clear statement rule, the Major Questions Doctrine is not merely a tiebreaker helping judges decide between two plausible readings of a text, it places a “thumb on the scale,” so to speak, against delegation of major and expansive powers.¹⁷

b. The Barrett View

Justice Barrett sees the Major Questions Doctrine “as an ordinary application of textualism.”¹⁸ In her view, the doctrine reads text in context, including “background legal conventions, common sense, and constitutional structure.”¹⁹ Rather than reading the doctrine as a substantive canon,²⁰ which may lead to interpretations inconsistent with the most natural reading of the text, Justice Barrett believes it flows naturally from commonsense principles of communication²¹: “Because Article I grants all legislative powers to Congress,” she says, “the reasonable interpreter would expect Congress ‘to make the big-time policy calls itself, rather than pawning them off to another branch.’”²²

An example is helpful. Imagine parents hire a babysitter to watch their children for the weekend.²³ As they leave, they give her a credit card and tell her to “[m]ake sure the kids have fun.”²⁴ The babysitter then takes the kids on a road trip to an amusement park for the weekend.²⁵ “Was the babysitter’s trip consistent with the parent[s’] instruction?”²⁶ While the road trip may have been consistent in a literal sense, says Justice Barrett, it was not consistent with a reasonable understanding of the instruction.²⁷ In context, the instruction more likely meant getting ice cream or going to a movie.²⁸ Though, she says, other context, such as tickets to the amusement park on the counter, could change what a reasonable interpretation would be.²⁹

Justice Barrett sees the Major Questions Doctrine in the same way. It is nothing more than reading text in context, and, like the babysitter example, we would not read an unclear or ambiguous text as granting extraordinary power. So, rather than being an external principle informing her interpretation, the Major Questions Doctrine—and the “clear” delegation requirement—is rooted in the Constitution’s textual context.

II. Is the Major Questions Doctrine Consistent with Textualism?

In West Virginia v. EPA, another Major Questions Doctrine case, Justice Kagan accused the Court of being “textualist only when being so suits it” and described the Major Questions Doctrine as a “get-out-of-text-free card[].”³⁰ Picking up on this point, legal scholars have questioned the Major Questions Doctrine’s compatibility with textualism.³¹ “[A]t its core, textualism is associated with the basic proposition that judges must seek and abide by the public meaning of the enacted text, understood in context (as all texts must be).”³² While Justice Gorsuch’s understanding of the Major Questions Doctrine cannot be considered textual, Justice Barrett’s, while a close call, can.

a. Justice Gorsuch’s View Cannot Be Squared with Textualism

Justice Gorsuch’s view of the Major Questions Doctrine cannot be squared with textualism. As a strong-form canon of construction, his view can lead to interpretations other than the most faithful reading of the text in context. As Justice Barrett wrote, “[s]trong-form substantive canons—canons instructing a judge to adopt ‘an inferior-but-tenable reading’—veer beyond interpretation and into policymaking.”³³ Since, under this view, the doctrine can overcome the most natural reading of the text by placing a thumb on the scale, it is inconsistent with textualism. That the external considerations here are rooted in separation of powers does not resolve the issue, since they are rooted in the purpose or policy behind the Constitution rather than its text. As Justice Barrett put it: “If Justice Gorsuch thinks that we should forgo the most natural reading of a statute because it is preferable for Congress, rather than the President, to make big decisions, that way lies a lot of trouble for the textualist.”³⁴

b. While a Close Call, Justice Barrett’s View Is Arguably Consistent with Textualism

Whether Justice Barrett’s view of the Major Questions Doctrine is consistent with textualism is a closer question. While she describes a textualist methodology—reading text in context—her requirement that major delegations be clear seems to be in tension with textualism for two reasons. First, her view operates much like Justice Gorsuch’s in application. By requiring major delegations to be clear, she effectively places a thumb on the scale against them, just as he does. Second, her view seems bound to congressional intent—to what Congress intended when it wrote a statute—rather than what the text itself would naturally mean.

Despite its tension with textualism, Justice Barrett’s view is plausibly textual. Reading text in context—textualism—includes commonsense communication principles. For instance, metaphors like “it’s raining cats and dogs” are not read literally, even though a literal interpretation is textually plausible. Likewise, interpretations of delegations, such as parents leaving a babysitter a credit card, are limited by context. And intent is a relevant contextual factor. In Justice Barrett’s view, Congressional delegations are read the same way. When Congress delegates major powers, an average reader would assume it would do so clearly. Under this view, there is a strong argument that Justice Barrett’s view is consistent with textualism.

* * *

The Major Questions Doctrine’s requirement that broad delegations be “clear” is in significant tension with textualism, but it may not be entirely inconsistent. Although they reach the same conclusion, Justice Gorsuch’s view is inconsistent with textualism, while Justice Barrett’s view provides a plausible defense.

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* Zach Liebl, J.D. Candidate, University of St. Thomas School of Law Class of 2027 (Associate Editor).

1. 50 U.S.C. § 1702(a)(1)(B). The relevant text authorizes the President, under certain conditions and after declaring a national emergency, to “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.” Id. (emphasis added). ↩︎
2. Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 646 (2026) (“IEEPA does not authorize the President to impose tariffs.”). ↩︎
3. Id. at 674 (Kagan, J., concurring in part). ↩︎
4. Id. at 638–42 (applying the Major Questions Doctrine); id. at 646 (Gorsuch, J., concurring) (explaining that the opinion written by Chief Justice Roberts and joined by Justices Gorsuch and Barrett “[a]pply[s] the major questions doctrine . . . .”). ↩︎
5. Compare id. (Gorsuch, J., concurring) (arguing that the Major Questions Doctrine is rooted in substantive principles external to statutory text), and West Virginia v. EPA, 597 U.S. 697 (2022) (Gorsuch, J., concurring) (same), with Learning Resources, 146 S. Ct. 628(Barrett, J., concurring) (arguing that the Major Questions Doctrine is nothing more than a normal application of textualism) and Biden v. Nebraska, 600 U.S. 477 (2023) (Barrett, J., concurring) (same). ↩︎
6. NFIB v. OSHA, 595 U.S. 109, 125 (Gorsuch, J., concurring) (2022) (quoting Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001) (opinion by Scalia)). ↩︎
7. Learning Resources, 146 S. Ct. at 638. ↩︎
8. Id. at 638. ↩︎
9. Id. (citing Biden v. Nebraska, 600 U.S. 477 (2023)). ↩︎
10. Id. (citing West Virginia v. EPA, 597 U.S. 697 (2022)). ↩︎
11. Id. (citing NFIB v. OSHA, 595 U.S. 109 (2022)). ↩︎
12. Id. at 639 (citation modified). ↩︎
13. See NFIB, 595 U.S. at 124 (Gorsuch, J., concurring) (explaining that the Major Questions Doctrine is “designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands.”). ↩︎
14. Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 657 (Gorsuch, J., concurring) (2026) (quotations omitted). ↩︎
15. Chad Squitieri, “Recommend … Measures”: A Textualist Reformulation of the Major Questions Doctrine, 75 Baylor L. Rev. 706, 729 (2023) (“Justices Gorsuch . . . sees the major questions doctrine as a strong-form substantive canon.”). ↩︎
16. Id. at 712 (“The conventional wisdom is that substantive canons operate as an interpretive trump card, allowing judges to reject statutory readings dictated by other tools of construction in favor of readings based on external policy considerations.”). ↩︎
17. See id. (explaining that, to Justice Gorsuch, the Major Questions Doctrine is “not a weaker tie-breaking substantive canon that only helps judges decide ‘choos[e] between equally plausible interpretations of ambiguous text’” (quoting West Virginia v. EPA, 597 U.S. 697, 742 n.3 (Gorsuch, J., concurring))); see also Advisory Opinions: Supreme Court Strikes Down Trump Tariffs at 17:22 (Spotify, Feb. 20, 2026) (explaining Justice Gorsuch’s view as a “thumb on the scale”). ↩︎
18. Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 672. ↩︎
19. Id. (citation modified). ↩︎
20. Biden v. Nebraska, 600 U.S. 477, 508, 509 n.2 (“[I]f the major questions doctrine were a newly minted strong-form canon, I would not embrace it.”). ↩︎
21. Id. at 514. ↩︎
22. Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 672. ↩︎
23. Biden v. Nebraska, 600 U.S. 477, 513. ↩︎
24. Id. ↩︎
25. Id. ↩︎
26. Id. ↩︎
27. Id. ↩︎
28. Id. at 514. ↩︎
29. Id. ↩︎
30. West Virginia v. EPA, 597 U.S. 697, 779 (2022) (Kagan, J., dissenting). ↩︎
31. See, e.g., Kevin O. Leske, Major Questions Hypocrisy, 76 Admin. L. Rev. 771, 815 (2024) (“Despite attempts to defend the doctrine on various bases, the Court’s major questions doctrine is irreconcilable with textualism.”); Squitieri, supra note 15, at 777 (“Textualists have important reasons to object to both the substantive [Gorsuch] and linguistic [Barrett] conceptions of the major questions doctrine that are currently on offer.”). ↩︎
32. Kevin O. Leske, Major Questions Hypocrisy, 76 Admin. L. Rev. 771, 799 (2024) (internal quotation omitted). ↩︎
33. Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 673. ↩︎
34. Id. (Barrett, J., concurring) (internal quotations omitted). ↩︎