Learning Resources for Learning Resources

Learning Resources v. Trump may seem like a very important decision today, but I’m not sure how much it will matter in the near future.

First, Chief Justice Roberts wrote the majority opinion. The Chief, per his usual style, said very little. He purported to simply apply longstanding doctrine, even where he broke new ground, especially on the application of the major questions doctrine for foreign affairs. Moreover, Roberts did not fully engage with most of the historical precedents advanced in Justice Kavanaugh’s dissent. Roberts opinions are, as a general matter, not good teaching tools. Students invariably are left feeling unfulfilled.

Second, it isn’t clear to me whether this case even belongs in a constitutional law casebook. I think classes on statutory interpretation could benefit from this decision. The major questions doctrine also makes sense for an administrative law class. But the majority opinion says very little about constitutional law. Sure, the Chief Justice gestures to Article I, which reserves the taxing power to Congress. And that principle does some work with the major questions doctrine. But the real work is not doing based on the text of the Constitution, but instead on how Congress over time delegated the power to impose taxes to the President. Again, this is not really about constitutional law. (I suspect the birthright citizenship will also be resolved on statutory grounds, removing another possible entry to a constitutional law casebook.)

Third, what should students make of the disagreement between Justice Gorsuch and Justice Barrett? I feel like not much new is added from Biden v. Nebraska. Indeed, Justice Barrett, as well as Justice Kagan, seem annoyed that Justice Gorsuch is still making them expend time on this dispute. Is any of this back-and-forth helpful to students in a class on statutory interpretation? I am doubtful. This opinion took nearly five months after oral argument to publish. Query how much of that delay was caused by Justice Gorsuch responding to the four “camps.”

Fourth, what about the non-delegation doctrine? After oral argument, I suspected that Justice Gorsuch would at least discuss the non-delegation doctrine, but ultimately it made only a few brief appearances in his opinion. By contrast, Justice Thomas introduced an entirely new line of thought: the non-delegation doctrine only applies to core legislative powers that affect life, liberty, and property. But powers outside that core, that do not affect public rights, can be delegated without limitation. Is Justice Thomas right? I need to think about it some more. Justice Gorsuch raises some questions, but he doesn’t really have a strong response. The Thomas dissent may be the only part of the entire case that belongs in a constitutional law casebook. I’ll admit it is strange to only include a dissent, but students will benefit from Thomas’s careful study.

Fifth, what about Justice Kavanaugh’s dissent? It is nearly twice the length of the majority opinion. I found it more persuasive than I expected. Even though I have been following this issue for the past year, I never took the time to carefully walk through the statutory history. I don’t think the issue is as “clear” as Kavanaugh said, but I am convinced this issue is close. There is no way that Justice Kagan could be right that the government loses based solely on the statute. I think the government loses only through an application of the major questions doctrine. And I need to think a bit more about Justice Kavanaugh’s historical account of the tariff power controls. I almost wish that the Chief assigned the majority opinion to Justice Barrett, as she would have taken the time to fully engage the dissent. But Roberts kept this one for himself.

Ultimately, like much of Trump law, I don’t think this decision will have much staying power. It is just another application of the major questions doctrine, even if the Justices still do not agree what that doctrine is.