This TaxProf Op-Ed on Learning Resources is by Blaine Saito (Ohio State; Google Scholar):

Major Questions, Learning Resources, and the End of Tax Regulation

Blaine Saito

The Supreme Court’s decision in Learning Resources, Inc. v. United States[1] did more than just strike down a set of emergency tariffs. It effectively doubled down on the Major Questions Doctrine (MQD) without helping to define its parameters. For tax practitioners and Treasury officials who trade in the currency of certainty, the fallout is catastrophic. We are moving toward a regime where “magic words” and judicial intuition take precedence over the functional realities. The real trouble lies in the “concurrence-palooza” that comes.

Justice Gorsuch’s concurrence is a masterclass in soaring Article I rhetoric, defending the primacy of Congress against executive aggrandizement. While the prose is beautiful, it masks a terrifying lack of utility. Gorsuch’s discussion of the MQD still hews to his desire to have a “strong” version of the nondelegation doctrine, which the Court has decided not to accept. While the goals are laudable, Justice Gorsuch provides zero functional guidelines for what actually constitutes a “major” question and when the doctrine will police delegations of authority.

The annoyance I have is that Justice Gorsuch’s approach and the thrust of the dissents seemingly reject the only path toward some level of programmatic stability in Justice Barrett’s “softening” of the MQD. Justice Barrett attempts to account for context, looking at “background legal conventions,” “common sense,” and “constitutional structure” to determine if a delegation is reasonable.[2] But Gorsuch explicitly rebuffs this accounting. He argues that these contextual clues do not resolve the issue and instead demand hyper-specificity from Congress. In his view, unless Congress uses the precise linguistic incantation, the regulation is dead on arrival. When six justices agree a doctrine exists but cannot agree on how to define its borders, as seen in cases like West Virginia v. EPA[3] and Biden v. Nebraska,[4] they have not protected the separation of powers. They have simply transferred power to the judiciary to decide, post hoc, which policies are “consequential” enough to warrant a veto.[5]

Justice Gorsuch also flatly rejects a foreign policy exception or softening to the MQD. As Justice Kavanaugh’s dissent highlights, the Executive has traditionally been granted significant deference in foreign affairs, even where powers are concurrent with Congress. Without such an exception, the Court has hampered global tax coordination. Consider Treasury’s current efforts to implement the OECD’s Pillar Two global minimum tax. Of course, Congress would need to enact legislation. But Treasury may also need to issue regulations, and such regulations would involve “vast economic and political significance.”[6] They rely on general delegations of authority to navigate complex, multilateral agreements that Congress could not have specifically envisioned decades ago. If Gorsuch’s formalist MQD applies with full force to the “foreign affairs” of taxation,[7] then any Treasury guidance not mirrored in an explicit, recent Act of Congress is a sitting duck.

The Internal Revenue Code is inherently a sieve of unforeseen gaps. Treasury and the IRS must constantly fill these gaps to respond to novel tax-avoidance schemes or shifting global norms. If we follow Gorsuch’s lead, we are essentially saying that unless Congress anticipated a specific 2026 loophole in 1986, Treasury is powerless to stop it. We are entering a regulatory limbo where the technical expertise of Treasury and potentially even Congress’s desires are replaced by textured views from the bench. Ideally, Congress would be an active partner in this discourse, as Justice Gorsuch hopes. But we do not live in the ideal. The development of tax policy is often a muddy and complex situation that requires some flexibility and pragmatism between Congress and Treasury. By muddying the MQD and rejecting pragmatic exceptions for context or foreign policy, the Court has not empowered the people’s representatives. It has simply guaranteed that the only thing certain in tax law is more litigation. For a system that relies on the predictable flow of capital, that is more than just annoying—it is a structural failure.

Other TaxProf Blog Op-Eds in this series:

• TaxProf Op-Ed: Morse, Oei & Ring on Learning Resources as a Statutory Interpretation Decision (Feb. 27, 2026)
• TaxProf Op-Ed: Appleby on the State Tax Implications of Learning Resources (Feb. 26, 2026)
• TaxProf Op-Ed: Clarke on Justice Gorsuch’s Learning Resources Concurrence (Feb. 25, 2026)
• 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] Learning Res., Inc. v. Trump, No. 24-1287, slip op. (U.S. Feb. 20, 2026).

[2] Id. at 2 (Barrett, J., concurring) (citing Biden v. Nebraska, 600 U.S. 477, 507 (2023) (Barrett, J., concurring)).

[3] 597 U.S. 697 (2022).

[4] 600 U.S. 477 (2023).

[5] Learning Res., slip op. at 8 (Roberts, C.J.) (citing West Virginia, 597 U.S. at 723–24).

[6] Id. at 32 (Kavanaugh, J., dissenting) (quotation marks omitted).

[7] Id. at 30 (Gorsuch, J., concurring).