The Major Questions Doctrine is in the Constitution because it simply is the logical obverse of the Doctrine of Incidental Authority, which pervades the Constitution.
This essay first appeared on March 11, 2026 in Law & Liberty.
Justice Neil Gorsuch’s concurring opinion in the tariff case of Learning Resources v. Trump rightfully has garnered favorable attention. This is largely due to its clear explanation of the Supreme Court’s “major questions doctrine.” As recited by Justice Gorsuch, the major questions doctrine is that, “to sustain a claim that Congress has granted them an extraordinary power, executive officials must identify clear authority for that power.” Not all the members of the court agree with that formulation, but it does seem to command a majority of the justices.
Justice Gorsuch’s statement of the doctrine, however, leaves a circle open that I would like to close. My thesis is that the major questions doctrine is simply the logical obverse of the doctrine of incidental (or implied) authority. This is a doctrine of agency law assumed throughout the Constitution, and embodied specifically in the Necessary and Proper Clause.
Hallmarks of the Gorsuch Opinion
Before examining the doctrine of incidental authority, let’s review some other reasons why Justice Gorsuch’s opinion is a notable one.
First, Justice Gorsuch recognizes that the Constitution is essentially a fiduciary document whereby principals (“We the People”) granted enumerated powers to designated agents—that is, to federal officials and certain other persons, assemblies, and officers. Moreover, the Constitution shares characteristics with other eighteenth century enumerated power instruments, including corporate charters, stewardship agreements, and, especially, powers of attorney. In fact, at several points during the 1787–90 ratification debates, participants explicitly analogized the Constitution to a power of attorney.
Thus, it is not surprising that Article I and (when properly understood) Articles II and III all follow a drafting pattern common in eighteenth century enumerated power documents, including in powers of attorney.
Second, Justice Gorsuch recognizes that in congressional delegation cases, Congress (as agent and sub-principal) delegates authority to the executive branch (as sub-agent). The major questions doctrine protects the interests of Congress from sub-agents’ excessive claims of authority. This is particularly important because government power, once given, is difficult to take back.
Third, Justice Gorsuch seems to acknowledge an insight I first published in early 2020, and which Professor Chad Squitieri has since developed: Under the Constitution, the people did not delegate to Congress any single legislative power. Rather, they delegated over 30 separate powers. Because an agent’s authority to delegate power to a sub-agent depends on the consent of the principal, for each congressional power, one must deduce the scope of permissible sub-delegation from the constitutional text and its background. There is no single “non-delegation doctrine,” but many.
Fourth, Justice Gorsuch shows that the major questions doctrine is not a recent invention. Critics’ claims that it is “new” seem tenable only because twentieth-century progressive judges and commentators temporarily displaced it with novel interpretive methods of their own. In this respect, the major questions doctrine shares a characteristic with constitutional originalism: Originalism is not, as sometimes charged, new. It is just a name that Professor Paul Brest invented in 1980 for two methods of documentary interpretation (perhaps really just one) that—as he recognized—had prevailed for centuries. Originalism seems novel to some critics only because twentieth-century progressive judges and commentators temporarily displaced it with novel interpretive methods of their own.
Justice Gorsuch’s Cited Cases
Justice Gorsuch marshals eight cases—four English, four American—to demonstrate the antiquity of the major questions doctrine. These judicial pronouncements do show that the doctrine is not a newcomer. However, a skeptic might not find them constitutionally persuasive. The six that are most probative arose in the nineteenth century, decades after the Constitution was ratified. And the other two offer only weak evidence that the American Founders knew of the major questions doctrine as the Supreme Court now describes it.
The two pre-constitutional cases are Entick v. Carrington, decided by the Court of Common Pleas in 1775, and Kirk v. Nowill, issued by the Court of King’s Bench in 1786. In Entick, Lord Campbell observed that if government functionaries sought to exercise an extraordinary power, authority to do so “ought to be as clear as it is extensive.” But Lord Campbell’s statement resulted from a search of the common law rather than from statutory interpretation. In Kirk, Lord Mansfield ruled that a corporation could not exercise an extraordinary power unless that power had been given expressly. But at the time, corporate agents—unlike those later empowered by the Constitution—enjoyed no incidental authority.
Still, Justice Gorsuch is correct about the constitutional pedigree of the major questions doctrine. But this is not because “a similar precept applied in agency law.” It is because the obverse of the major questions doctrine was agency law. Specifically, it was the obverse of key precepts in the eighteenth century doctrine of incidental authority.
Incidental Authority in Enumerated Power Documents
An eighteenth century enumerated power document, like a modern one, listed specific powers the principal granted to the agent. The listed items were the express or principal powers. (In McCulloch v. Maryland, Chief Justice John Marshall called them “great powers.”) A prevailing legal maxim was that enumerated powers were construed strictly. This meant that if there was a reasonable question as to whether an unmentioned power was within the scope of an express one, it did not exist.
Strict construction could, however, defeat the intent of the parties. So to effectuate the intent, the courts acknowledged a countervailing rule: In specified circumstances, an express power might, by implication, encompass unmentioned lesser ones.
When the sovereign granted a corporate charter, incidental authority was not implied because grants from a sovereign were construed in favor of the sovereign. But in most other cases, the parties could decide whether their document conveyed incidental powers. If the document excluded incidents, as did Article II of the Articles of Confederation (reserving powers not “expressly delegated”), then the exclusion was enforced.
If the document said nothing, then the default rule was that the grant included incidental authority. Parties unwilling to rely on the default rule often utilized certain common phrases to emphasize that the agent could exercise incidental authority. These phrases stated that the agent could carry out his express functions by methods that were “necessary,” “needful,” “expedient,” “meet,” “fit,” or “appropriate.” One of the most common phrases of this kind used the expression “necessary and proper.”
The phrases just described should be distinguished from variations employed to narrow or widen the agent’s authority by, for example, requiring absolute necessity (as in the Constitution’s Article I, Section 10, Clause 2) or granting additional discretion (as in Article II Section 3: “as he shall judge necessary and expedient”—and Article V: “shall deem it necessary”).
To qualify as incidental, a purported power had to be at least arguably within the scope of the express language. It also had to be (1) of lesser importance (“less worthy”) than the express power and (2) either (i) a customary way of executing it or (ii) reasonably necessary to its execution.
The question of greater or lesser importance was a deciding issue in McCulloch v. Maryland (1819), where Chief Justice Marshall found that chartering a national bank could be incidental because it did not rank in importance with the Constitution’s principal or “great powers.”
If a putative power was of lesser importance, then to be incidental, it still had to be a customary or necessary way of executing the express power. From the express power of a steward to manage an estate, the courts derived authority to lease individual plots to tenants for short terms, because such leases were both “less worthy” than management of the entire property and were customary methods of management. On the other hand, the power to sell the land was not incidental to a management contract: It was as “worthy” as management and certainly not customary or necessary for carrying it out.
A right of access for the grantee of a mine to cross the grantor’s land was incidental when of lesser value than operating the mine and necessary or customary for doing so. Correspondingly, even if of lesser value, it was not incidental if it was neither customary nor necessary for mine operations.
Closing the Circle
Let us return to Justice Gorsuch’s statement of the major questions doctrine: “to sustain a claim that Congress has granted them an extraordinary power, executive officials must identify clear authority for that power.” To say that the power is “extraordinary” (i.e., outside the normal order) is to say that (1) it is of equal or greater magnitude than powers expressly granted or (2) it is otherwise discordant—i.e., neither customary nor necessary to exercising powers expressly granted. Thus, if the power is “extraordinary,” it cannot be incidental. Under those circumstances, one can infer that if Congress intended to grant such a power, it would have said so.
The doctrine of incidental authority appeared in some of the nineteenth-century cases Justice Gorsuch cited to show that the major questions doctrine is not new. Here is an excerpt from Hawtayne v. Bourne (1841). I have italicized words referencing custom and necessity:
“Now the extent of the authority conferred upon the agent by his appointment was this only—that he should conduct and carry on the affairs of the mine in the usual manner; there is no proof of express authority to borrow money from bankers for that purpose, or that it was necessary in the ordinary course of the undertaking; and certainly no such authority could be assumed.”
Similarly, in the 1857 Alabama case of Ex Parte Burnett, the court held that a municipality’s authority to regulate the sale of liquor could not imply the even greater power of prohibiting it.
In summary, the major questions doctrine holds that if an executive agency’s power is extraordinary, it must be express. The doctrine of implied, incidental powers says that for a power to be incidental, it cannot be extraordinary. They are logically the same.
Parthian Shots
I close with two more observations:
First, the same constitutional limitations on incidental powers that apply to congressional delegations to the executive also apply to the people’s delegations to Congress. The powers to regulate manufacturing, agriculture, crime, and land use are at least as “worthy” as the power to “regulate Commerce.” Treating them as mere incidents of the Commerce Power, as the Supreme Court now does, is very far-fetched.
Second, the Trump tariffs were imposed for mixed regulatory and revenue purposes. In the debates leading to the American Revolution, the Founders classified such mixed-purpose tariffs as regulations of commerce and not as taxes. I therefore disagree with Justice Gorsuch’s (and the court’s) conclusion that the Trump tariffs are not clearly included within the “regulate importation” language of the International Emergency Economic Powers Act (IEEPA).
On the other hand, I do not see how an unfettered delegation of power to “regulate importation” whenever the president decides to declare an emergency can be constitutional. Ideally, the court should have voided that part of the IEEPA rather than quarreled with the president’s interpretation of it.
