Clarence Thomas Has Lost the Plot

The associate justice’s dissent in the tariffs case deserves some extra attention, because it his hopelessly uncoupled from law, history, and the Constitution.

Justice Clarence Thomas’s preferred theory of constitutional interpretation is often said to be originalist, but it may be more accurately described as personalist. To Thomas, almost every American judge who served over the past two centuries wasted their lives and careers. Rather than try to determine the Constitution’s meaning to the best of their ability, they should have all waited for Thomas to tell them what it actually meant.

The senior-most justice’s approach is hardly new. Thomas has spent decades calling for dozens, if not hundreds of prior Supreme Court precedents to be overturned. He writes separately more often than any of his colleagues to expound upon his particular view of the Constitution, replete with numerous citations to his own work. As his own colleagues have said, Thomas does not believe in stare decisis or in constraining himself by the court’s prior decisions.

Even by that standard, his dissent last week in Learning Resources v. Trump is astounding. In an 17-page opinion, Thomas sketched out an utterly alien vision of the separation of powers, the scope of the legislative branch’s powers, and the founding era to argue that President Donald Trump had broad powers to levy tariffs against the American people—far beyond what any of his conservative colleagues could stomach.

“As a matter of original understanding, historical practice, and judicial precedent, the power to impose duties on imports is not within the core legislative power,” Thomas claimed. “Congress can therefore delegate the exercise of this power to the President.” Justice Neil Gorsuch, a frequent Thomas ally, broke with him to describe this approach in a separate opinion as “a sweeping theory” that “presents difficulties on its own,” in what can only be described as serious understatement.

All of this is far afield from what the other justices were talking about. At issue in the case was whether Trump’s tariffs issued through the International Emergency Economic Powers Act of 1977 were lawful. Last week, in a 6-3 majority, the court said no, they weren’t. The prevailing opinion of the court used neither the major-questions doctrine nor the nondelgation doctrine to rule against the administration. Instead, the tariffs were invalidated under what Kagan described as the “ordinary rules of statutory interpretation.”

The most notable part of the ruling, aside from the outcome, was the split between the court’s six conservatives. As I noted last Friday, three conservatives—Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett—wanted to invalidate the IEEPA tariffs on major-questions grounds. The other three—Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh—wanted to uphold it by finding a national-security exception to the major-questions doctrine. (Kavanaugh himself had proposed this in an unrelated case last summer.)

That left the three liberals as the deciding bloc, and they cast their lot with the Roberts-Gorsuch-Barrett troika, albeit on different grounds. That decision has the most bearing on future legal disputes involving IEEPA and Trump’s powers to levy tariffs through other statutes. Thomas joined Kavanaugh’s principal dissent, but also wrote one of his own. It is one of the most bizarre opinions written by a Supreme Court justice this century.

What Thomas and Gorsuch argued about is known as the nondelgation doctrine. The most fundamental version of that doctrine is that one branch of the federal government cannot permanently delegate its powers to another branch. Congress could not pass a law, for example, that says, “All of the president’s nominees are automatically confirmed without individual Senate votes” or “the commander-in-chief can pay soldiers at will without congressional appropriations.”

At the same time, basic governance requires a certain amount........

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