Did Gorsuch just signal intent to defend congressional power and authority in future rulings?

[bigtree]

...are we seeing the emergence of at least three conservatives on the court (Roberts, Gorsuch, and Barrett) as limiters on the broad Executive authority Trump has claimed on agencies and issues other than trade?



excerpts from Gorsuch's agreement with the SC decision denying Trump the trade authority he had used to impose most of his tariffs:

"The Constitution lodges the Nation’s lawmaking powers in Congress alone, and the major questions doctrine safeguards that assignment against executive encroachment. Under the doctrine’s terms, the President must identify clear statutory authority for the extraordinary delegated power he claims. And, as the principal opinion explains, that is a standard he cannot meet."

"Americans fought the Revolution in no small part be-
cause they believed that only their elected representatives
(not the King, not even Parliament) possessed authority to
tax them. And, they believed, that held true not just for direct taxes like those in the Stamp Act, but also for many duties on imports, like those found in the Sugar Act..."

"...what do we make of the Constitution’s text? Section 1 of Article I vests “all 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."

"What do we make, too, of what the founders said about Article I both before and after the Constitution’s ratifica- tion? They regularly referred to powers in Article I, §8— even those that do not touch on life, liberty, or property— as legislative in nature. At the Constitutional Convention, early drafts described the powers to regulate “foreign” com- merce, “raise armies,” “equip Fleets,” “coin . . . money,” and “establish post-offices” as “legislative powers.” James Madison wrote to Congress in 1817 that “the legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution.” (noting, before the Constitutional Convention, the “legislative power over captures,” and arguing borrowing money is an “exclusive power of Legislation”)."

"Alexander Hamilton spoke similarly. (discussing “the legislative power of borrowing money” (describing “the legislative power of regulating trade with foreign nations”); (calling of “the legislative kind” and “of a legislative nature” the powers to raise money and troops, “establish rules in all cases of capture by sea or land, regulate the alloy and value of coin.”"

"For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be dis- appointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the Ameri- can people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason.

Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design.

Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions.

And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day.

In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is."

ruling: https://www.supremecourt.gov/opinions/25pdf/24-1287_4gcj.pdf

Gorsuch, Barrett side with liberals on nixing Trump tariffs https://thehill.com/regulation/court-battles/5747598-justices-limit-trump-tariff-power/

[UpInArms]

1. I can hardly believe it, but

Gorsuch basically said that the emperor has no clothes

[Buckeyeblue]

5. He certainly gave a history lesson.

[bigtree]

21. reminding of the history of a king imposing taxes without representation

...and the primacy of the legislature in making big decisions involving our money.

[Tim S]

2. One can hope

[bigtree]

19. amen

...one thing to note is that this is their THIRD strike against Trump's autocratic assertion of executive authority.

First with the Alien and Enemies Act; second with the Illinois Natl. Guard decision.

And now, this one....

[leftstreet]

3. DURec

[B.See]

4. nah. they're just trying to save

MAGAS azz these midterms because their "chosen one's" tariffs have been, for most Americans, a "DISGRACE."

... and so has HE.

[bigtree]

8. there is a strong element of saving their own financial portfolios here

...but his concurrence is lengthy and goes into historical detail that should be considered.

[B.See]

11. So, seems they know how to reference

precedent when they want to.

[bigtree]

20. there were sly exploitations of relatively recent conservative doctrine by some of the majority

...Gorsuch cited the major questions doctrine, as it's known, which has been the bane of liberals on the Court, because, it's been used by conservatives to deny agencies like EPA from imposing regulations.

Gorsuch takes it further here, though, than other conservatives, in that he applies this to the President, not just regulators at agencies.

A likewise turn on a hook conservatives on the court have used to justify overturning Democratic initiatives:

The three liberal justices insisted here on a strict reading of the trade law Trump has used to impose his tariffs, recognizing that the law doesn't have language which gives him the power to unilaterally impose taxes (which everyone but Trump recognizes is the ultimate impact of his tariffs).

[Bluetus]

6. Armies of masked thugs deporting our best customers are bad for business

They already got everything they wanted from Trump. They are through with him.

And as Thom Hartmann said on his show today, we will see many Republicans in open revolt AFTER they get past their primary this year. Trump's lame duck period started the second this SCOTUS ruling was announced.

You can be certain that this isn't lost on the likes of Musk, Theil, Palantir, Leo et Al. The only question is if Trump can be sidelined enough that they will leave him in office through 2028 (or death whichever happens sooner.) If Trump puts their power at risk, they will throw him overboard.

[Raven123]

7. Nope. Just says he values his wallet more than loyalty to Trump

[bigtree]

9. I agree with that

...money talks.

But his concurrence is an important milestone, a marker in the way of a sprint by the Executive toward dictatorship. Any port in a storm...

He talks about historical resistance in the country to 'Kings,' and other expressions of defense against autocracy which should be considered - and, perhaps, repeated.

[Raven123]

13. The problem is Gorsuch was one who agreed on the Trump immunity decision

His red line is his wallet, not resisting autocracy. I would love to believe otherwise, until a pattern emerges, not buying his line.

[bigtree]

15. I get that

..but many of us have been wondering when republicans or even the conservatives on the Court would start to defend even their own preogatives and interests.

Here we see a strident defense of legislative preogatives under the Constitution to halt or limit what they basically understand as one man controlling their money. But there was a broader assertion of Executive authority here which some of the justices (a majority) picked up on and are addressing in their concurrences.

Trump has used the same assertion of Executive power on immigration, firing of federal agency officials, domestic military deployments and military operations overseas.

I mean, it's not as if he's completely blocked from imposing other tariffs with other regulatory schemes, so, this ruling and the language the Justices used to deny Trump wasn't micromanaging trade policy, but rather establishing limits on Executive authority.

Roberts made it clear that they were't addressing trade policy so much as they were ruling on legislative prerogatives and congressional authority, so I'd expect more of that as decisions come out from behind the 'emergency' shadow-docket orders that have explicitly dodged the question of congressional power.

[lame54]

10. Or he's renegotiating

[617Blue]

12. Only when big money is at stake.

[bigtree]

16. I agree on that

...but I'm pleased to see that SOMETHING got their attention enough for them to try and reassert the Constitutional primacy of Congress in allocating or directing money.

Like everything in this world, many don't care until their own ox gets gored.

[UTUSN]

14. K&R

[dickthegrouch]

17. Sadly the process also makes it very difficult to correct unintended consequences.

When even SCROTUMS can't re-visit issues they caused without an active en-point case, and the legislature's inability to acknowledge short-sightedness many bad laws arre still on the books, and still being exploited by unscrupulous people (including many attorneys).

I remember being told in my first College-level Physics lecture "Accuracy is paramount, you are engineers now", as our professor failed the entire class on a pop quiz for making an assumption that wasn't stated in the question. Several people had objected, since they showed their working and their answer using the incorrect assumption (the gravity force being exerted) was correct.

Many years later the first mars lander crashed and was rendered an entire waste due to a similar assumption.

Lawmakers should similarly be subjected to such rigorous training.

[bigtree]

18. Gorsuch addressed that, I think, by pointing to the 'major questions doctrine'

Last edited Fri Feb 20, 2026, 05:59 PM - Edit history (2)

...writing:

"The major questions doctrine teaches that, to sustain a claim that Congress has granted them an extraordinary power, executive officials must identify clear authority for that power. Far from a novelty, much the same principle has long applied to those who claim extraordinary delegated authority, whether in private or public law."

Article I vests all federal legislative power in Congress. But like any written instrument, federal legislation cannot anticipate every eventuality, a point my concurring colleagues have observed in the past. And highly resourceful members of the executive branch have strong incentives to exploit any doubt in Congress’s past work to assume new power for themselves.

The major questions doctrine helps prevent that kind of exploitation. Our founders understood that men are not angels, and we disregard that insight at our peril when we allow the few (or the one) to aggrandize their power based on loose or uncertain authority.

We delude ourselves, too, if we think that power will accumulate safely and only in the hands of dispassionate “people . . . found in agencies.” Even if un- elected agency officials were uniquely immune to the desire for more power (an unserious assumption), they report to elected Presidents who can claim no such modesty.

Another feature of our separation of powers makes the major questions doctrine especially salient. When a private agent oversteps, a principal may fix that problem prospectively by withdrawing the agent’s authority. Under our Constitution, the remedy is not so simple.

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. Any President keen on his own authority (and, again, what President isn’t?) will have a strong incentive to veto legislation aimed at returning the power to Congress.

Perhaps Congress can use other tools, including its appropriation authority, to influence how the President exercises his new power. Maybe Congress can sometimes even leverage those tools to induce the President to withhold a veto.

But retrieving a lost power is no easy business in our constitutional order. And without doctrines like major questions, our system of separated powers and checks-and balances threatens to give way to the continual and permanent accretion of power in the hands of one man.

That is no recipe for a republic.

[bigtree]

22. 'btw'

Dilan Esper @dilanesper
BTW, Justice Gorsuch's concurrence is remarkable for a reason most people won't pick up on-- this is basically the first time another member of the Court has ever called BS on one of Justice Thomas' crazy separate opinions. Gorsuch tears him apart.

[ProudMNDemocrat]

23. It appears that 2 of the 3 TACO picks are THINKING on their butts!

Neil Gorsuch and Amy Coney Barret have disappointed TACO Don.

He can eat shit !