The Supreme Court’s Learning Resources opinion has 170 pages of fascinating opinions, but my personal favorite is Justice Gorsuch’s pox-on-all-houses, against-the-world concurrence—in which he picks up, and attempts to settle, a variety of debates both old and new with most of his colleagues on the Court. For that reason alone, it is an interesting document and worth a read. (And, with apologies to my current Administrative Law students, it has added some substantial reading for the end of the semester!)

One of the strongest contributions of Gorsuch’s concurrence—and perhaps the most surprising, at least based on his views prior to the oral argument—is his conclusion that the authority to impose tariffs belongs solely to Congress, and does not implicate the President’s Article II authorities. As near as I can tell, this conclusion represents a genuine and admirable evolution in Justice Gorsuch’s thinking over the last few years. In what follows, I trace the evolution of those views and the background debate.

In some ways, it is hardly surprising that Gorsuch—by far the Court’s biggest skeptic of broad delegations to the Executive Branch—would be skeptical of the Trump Administration’s view that the International Emergency Economic Powers Act authorized sweeping global tariffs. Gorsuch has repeatedly called for reinvigorating the nondelegation doctrine—the familiar but somewhat decrepit idea that Congress cannot grant the Executive Branch too much discretion over authorities that flow from Congress’s Article I prerogatives. The current nondelegation test, which requires that Congress supply an “intelligible principle” for a delegation, is notable for the infrequency with which statutes flunk it. To paraphrase Cass Sunstein, nondelegation is a doctrine with one good year (here’s looking at you, 1935!) and two hundred some-odd bad ones—i.e., all the rest.[1]

In Gundy v. United States—in which the Court considered and upheld Congress’s delegation of authority to the Attorney General to determine the retrospective applicability of the Sex Offender Registration and Notification Act—Gorsuch wrote a dissent in which he outlined his own vision of what a beefed-up, reinvigorated nondelegation doctrine might look like.[2] And, for a brief moment, it seemed like the Gorsuch vision might win out: Justices Roberts and Thomas signed on; Justice Kavanaugh had just joined the Court and didn’t participate in the case; and Justice Alito filed a short concurrence in Gundy noting his desire to revisit the “intelligible principle” test in an appropriate future case. Perhaps there would be five votes.

But that effort lost most of its steam last year, in the tax-adjacent case of FCC v. Consumers’ Research.[3] There, the Court considered a constitutional challenge to Congress’s delegation of authority to the Federal Communications Commission to administer and set mandatory contribution levels (a kind of administrative tax) for a shared fund designed to ensure nationwide telecommunications access. The Court held that “intelligible principle” was still the test and upheld the statutory scheme because of it.

Which brings us back to tariffs, taxes, and foreign affairs. Consumers’ Research teed up a debate between Justices Kagan and Gorsuch on whether delegations of the taxing power have been viewed historically with special skepticism. Writing for the majority, Justice Kagan said no, and pointed to—among other things—the fact that some of the Supreme Court’s earliest decisions upholding broad delegations concerned tariffs, including the very decision that coined the “intelligible principle” phrase to begin with.[4] But Justice Gorsuch distinguished those cases from the mine-run of tax delegations precisely because—among other reasons—they involved tariffs. A tariff, he noted, “arguably raises distinct nondelegation questions from domestic taxes.”[5] Why? One possibility, he suggested, was that “delegations pose[] fewer problems in the field of foreign affairs, where many powers are constitutionally vested in the president under Article II.”[6]

In my view, this tangled history of debates over nondelegation made Gorsuch a particularly interesting Justice to watch as the Learning Resources case was being litigated. On the one hand, he is the Court’s biggest skeptic of broad delegations. On the other hand, he floated, with apparently genuine curiosity, the theory that tariff delegations might be different because they implicate foreign affairs. And that was perhaps the dominant theme in how the Solicitor General briefed and argued the Learning Resources case: In IEEPA, the story went, Congress “has supplemented the President’s constitutional power over foreign affairs and national security by delegating to him the authority to manage foreign trade in response to international conditions, including by imposing tariffs.”[7]

Gorsuch emphatically rejected that view, for two reasons. First, there is no general “foreign affairs” clause in Article II. There are presidential powers that touch on foreign affairs—the commander-in-chief power, the power to receive ambassadors, and so forth—but they do not include the power to create tariffs, even if tariffs may feel somewhat foreign-affairs-y. As Gorsuch noted, the President “does not enjoy independent Article II authority to impose tariffs in peacetime.”[8] A more specific constitutional hook is required, not just generic handwaving about “foreign affairs.” Second, a more expansive view of a “foreign affairs” exception would be enormous. What, Gorsuch asks, does not touch on foreign affairs? Climate change? The COVID-19 pandemic?

I am persuaded that Justice Gorsuch has the better of this argument. But, just as importantly, I think his views here reflect genuine evolution and open-mindedness—and an evident willingness to reconsider earlier assumptions in light of new arguments. 

***

Other TaxProf Blog posts in this series:

• TaxProf Op-Ed: Endean on Delegations of the Taxing Power (Feb. 24, 2026)
• TaxProf Op-Ed: Avi-Yonah on Learning Resources and Regulatory Taxation (Feb. 23, 2026)
• The Supreme Court Strikes Down Trump’s IEEPA Tariffs (Feb. 21, 2026)

[1] Cass Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 317, 322 (2000); see A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).

[2] Gundy v. United States, 588 U.S. 128, 149 (2019) (Gorsuch, J., dissenting).

[3] 606 U.S. 656 (2025).

[4] See id. at 674 (discussing J.W. Hampton, Jr., & Co. v. United States, 276 U. S. 394 (1928)).

[5] Id. at 737 n.15 (Gorsuch, J., dissenting) (emphasis added).

[6] Id. at 746 n.20 (cleaned up).

[7] Brief for the Respondents in No. 24-1287 and the Petitioners in No. 25-250 at 12, Learning Resources, Inc. v. Trump, Nos. 24-1287 & 25-250 (U.S. Sept. 19, 2025).

[8] Learning Res., Inc. v. Trump, No. 24-1287, slip op. at 31 (U.S. Feb. 20, 2026) (Gorsuch, J., concurring).