P. G. Monateri (University of Turin – Faculty of Law; SciencesPo, École de Droit) has posted Economic Statecraft and Political Question: Why the Court used the Wrong Doctrine on SSRN. Here is the abstract:
This Article argues that the Supreme Court used the wrong doctrine to decide Learning Resources, Inc. v. Trump, its recent case invalidating “emergency tariffs.” By allowing judicial review over core instruments of economic foreign policy, the Court ignores the logic of the political question doctrine. The Court treated the dispute as a textbook major questions case. The deeper question, however, is not how to read IEEPA, but who should decide whether a President may use emergency tariffs as a tool of economic statecraft—shaping negotiations with other states and reallocating economic costs across domestic sectors. Asking courts to arbitrate these choices pushes them beyond ordinary legal interpretation into institutional design. In such cases, the major questions doctrine answers the wrong question. The Article therefore proposes a simple conceptual clarification. The major questions doctrine addresses how courts should read statutes once they intervene; the political question doctrine addresses the prior institutional question of whether courts should intervene at all. In disputes involving economic statecraft, that threshold question should come first.
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