Document Type
Article
Abstract
Justice Kavanaugh’s concurring opinion in FCC v. Consumers Research was remarkable in a number of respects, principally because it expressed very strong views on matters currently under consideration by the Supreme Court, although some of the issues he resolved were not issues posed by the Consumers’ Research case itself. Foremost among the positions he expressed were a muted version of the nondelegation doctrine and the view that the major questions doctrine has virtually no application to matters involving foreign affairs. The tariff decision now pending before the Court, in the V.O.S. Enterprises and Learning Research cases, may present a collision between two lines of recent Supreme Court decisions concerning Article II of the Constitution. One line has imposed restrictions on the power and discretion of executive agencies; the other has encouraged and articulated an expansive view of the power of the president individually. The tariff case presents an occasion where the former line, particularly the major questions doctrine, points to a result at odds with the latter line. Justice Kavanaugh, though at the center of the Roberts Court, has appeared to be the single Justice least disturbed by the emerging inconsistency between the Court’s anti-administrativist cases and its decisions protective of the presidency.
Recommended Citation
Stanley I. Langbein, Checks, Balances, Tariffs, and Justice Kavanaugh, 17 ConLawNOW 121 (2025)