Over the past decade, economic intervention by the executive branch in the name of national security has become increasingly salient.1 It has also taken new forms. Traditionally, executive economic interventions for national security primarily leveraged domestic economic strength to influence foreign entities’ actions.2 Yet, amid globalization’s distributional impacts, rising geopolitical tensions, supply chain fragilities,3 and political gridlock,4 recent presidential administrations have inverted prior practice. Nowadays, purported foreign affairs and national security (FANS) events justify executive actions to fundamentally restructure the domestic economy.5
These “new economic statecraft” actions have largely relied on a handful of trade- and security-related statutes.6 For example, the first Trump Administration imposed tariffs on various products7 under Section 232 of the Trade Expansion Act of 19628 and Section 301 of the Trade Act of 1974.9 President Biden blocked the Japanese company Nippon Steel’s proposed $14.9 billion acquisition of U.S. Steel pursuant to Section 721 of the Defense Production Act10 (DPA).11 The second Trump Administration announced reciprocal tariffs pursuant to the International Emergency Economic Powers Act12 (IEEPA)13 and acquired equity stakes in “strategic” companies14 by invoking the DPA and the Creating Helpful Incentives to Produce Semiconductors (CHIPS) Act of 2022.15
As political incentives to pursue protectionism and industrial policy have grown,16 new economic statecraft initiatives have produced legal friction.17 At first glance, the Supreme Court’s endorsement of the major questions doctrine (MQD) seems to constrain the Executive’s ability to claim expansive authority to reshape the domestic economy from statutory text.18 Three Justices in Learning Resources, Inc. v. Trump19 expressly applied MQD to cabin executive authority under IEEPA.20 Yet MQD’s limiting disposition clashes with another judicial tool: FANS exceptionalism. Indeed, at least two Justices have recently invoked FANS exceptionalism to justify more relaxed review of executive action in the FANS space.21 One Justice has even proposed categorically exempting FANS matters from MQD scrutiny.22
Commentators have also extensively documented the Court’s hesitance to strike down executive actions in the FANS space.23 Their commentary reflects widespread perceptions that the judicial branch generally applies deferential FANS exceptionalism, rather than more stringent tools like MQD, whenever an executive action implicates the FANS realm.24 These perceptions have exacerbated perverse incentives within the executive branch. Presidential administrations frame their economic statecraft initiatives in increasingly wily ways: To the American public, such measures are framed as industrial policy with large domestic economic boons.25 In court, these initiatives are classified as foreign affairs adjacent and thus merit deference on functionalist or structural grounds.26 Moreover, this Janus-faced posturing has increasingly extended beyond political rhetoric. The policy substance of new economic statecraft has crept into targeting domestic production,27 and the recharacterization of domestic economic activities as implicating FANS matters to legally justify executive interventions has only grown more brazen over time.28
To be sure, since the Founding era, U.S. policymakers have recognized links among domestic economic performance, national security, and foreign affairs leverage.29 Yet historical efforts to bolster the country’s long-term economic competitiveness via foreign commerce regulations usually involved Congress.30 Therefore, by promoting novel conceptualizations of security as viable policy and legal justifications for executive intervention in broad swaths of the domestic economy, new economic statecraft can facilitate the transfer of traditionally congressional activity into executive hands.
Examining general separation of powers tensions in the new economic statecraft space will remain relevant in the upcoming years. In Learning Resources’s aftermath, the executive branch has persisted in pursuing novel measures.31 These measures will likely spur additional litigation.32 Accordingly, this Note maps the broadened scope of new economic statecraft, traces its creeping influence over domestic economic affairs, and examines legal challenges that it might raise in statutory delegation disputes. Assuming the continued interment of the nondelegation doctrine,33 this Note argues that courts should apply MQD and forgo FANS exceptionalism when reviewing executive actions in new economic statecraft. Such an approach would have functionalist justifications, strengthen the separation of powers principles that new economic statecraft initiatives strain, and enshrine existing doctrinal commitment to MQD as a conventional tool of statutory interpretation.
Part I considers the expanding breadth, protectionist focus, and functionalist justifications underpinning the new economic statecraft. Through case studies of the 2018 steel and aluminum tariffs, the 2024 review of the U.S. Steel acquisition, and the 2025 “Liberation Day” tariffs, it documents how perceived judicial deference has exacerbated security creep and undermined functionalist rationales for FANS exceptionalism in the economic statecraft space.34 Part II analyzes the separation of powers dilemmas that the new economic statecraft imposes. It concludes that applying MQD while declining to invoke FANS exceptionalism would best address the separation of powers concerns arising from these executive initiatives. Part III finds that applying MQD, rather than FANS exceptionalism, to new economic statecraft actions better aligns with existing case law. Though courts may have proven historically reticent to strike down executive actions implicating foreign affairs,35 extending FANS exceptionalism to recent economic statecraft actions unnecessarily broadens facially narrow court holdings and creates irreconcilable conflicts with recent MQD developments.
I. New Economic Statecraft and Security Creep
Economic statecraft, the leveraging of domestic economic power to pursue geopolitical goals,36 has grown increasingly broad and Executive-led over the past decade.37 Traditionally, Presidents have invoked economic statecraft statutes — such as IEEPA, Section 232, and Section 721 of the DPA — to pursue offensive economic actions tailored to impact foreign economies and influence foreign entities’ actions in discrete and fundamentally noneconomic crises.38 Resolving these noneconomic crises plausibly required executive expertise, speed, and secrecy — characteristics that traditionally justified deferential judicial review of FANS actions on functionalist grounds.39 However, recent administrations have invoked the same statutory authorities to restructure the supply side of the domestic economy in response to more nebulous, abstract threats.40 The Executive’s perception of judicial deference in the FANS realm may have emboldened national security creep into economic policy.41 Far from being innocuous, security creep has resulted in increasingly contorted and frequent recharacterization of domestic economic policies as matters under FANS’s purview. As a result, economic and national security policy has grown more politicized while becoming less predictable, transparent, and reflective of expertise42 — values that underpin the prevailing functionalist justifications for FANS exceptionalism.
A. The Expansion of Economic Statecraft
The scope of executive action pursuant to economic statecraft statutes has considerably widened in recent years. The evolving invocations of three statutes highlight this trend.
First, consider Section 232, which authorizes the President, after a Commerce Department investigation, “to adjust . . . imports . . . so that such imports will not threaten to impair the national security.”43 Before the 2010s, Section 232 actions generally consisted of limited import adjustments tailored to address noneconomic foreign affairs crises44: President Carter imposed an embargo on Iranian oil to gain leverage in hostage negotiations,45 President Reagan imposed an embargo against Libyan oil to pressure the Libyan government against supporting terrorism,46 and Presidents Nixon and Ford replaced oil quotas with licensing fees to blunt OPEC threats to withhold oil.47 By contrast, the first Trump Administration’s 2018 Section 232 tariffs covered (among multiple products) all steel and aluminum imports from all countries to address “insufficient” domestic steel and aluminum production.48
Next, consider IEEPA, which allows the President to “regulate”49 imports “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States.”50 Again, pre-2010s usage of IEEPA generally addressed noneconomic foreign crises51: President Carter froze Iranian government assets to induce Iran to release American hostages,52 President George H.W. Bush placed an embargo on Iraq to force the country to abandon its invasion of Kuwait,53 and President George W. Bush froze assets of terrorist groups after September 11.54 By contrast, the second Trump Administration used IEEPA to impose global reciprocal tariffs, on the theory that inducing a domestic manufacturing upswing could counter trade deficits and “the hollowing out of [the U.S.] manufacturing base.”55
Lastly, Section 721 of the DPA allows the President, after a review by the Committee on Foreign Investment in the United States (CFIUS), “to suspend or prohibit any . . . transaction that threatens to impair the national security,” so long as the President finds “credible evidence” indicating that any foreign entity “that would acquire an interest in a United States business . . . might take action that threatens to impair the national security.”56 Presidential blocking of transactions pursuant to Section 721 has increased in both frequency and scope in recent years.57 Seven of the nine total Section 721 blockings occurred after 2015.58 Early blockings primarily targeted Chinese-owned companies’ potential acquisition of militarily relevant frontier technologies.59 However, President Biden’s recent blocking of Nippon Steel’s proposed acquisitions of U.S. Steel prevented a non-Chinese firm from acquiring a low-tech steel producer,60 likely on grounds that Japanese ownership of U.S. steel production facilities would endanger domestic economic security.61
Some commentators view new economic statecraft actions simply as contemporary variants of prior actions undertaken pursuant to the same statutes. For example, Professor Jack Goldsmith has suggested that the Liberation Day tariffs did not prove “unheralded,” in part because prior duties had been imposed under IEEPA’s predecessor, as part of an economic security action.62 Similarly, Professors Timothy Meyer and Ganesh Sitaraman have likened the first Trump Administration’s Section 232 tariffs to anti-terrorism and anti-nuclear sanctions measures that the George W. Bush and Obama Administrations pursued.63 However, these commentators understate the extent to which recent actions depart from prior practice by targeting domestic production and framing long-term, structural, and fundamentally economic phenomena as security threats per se. Twentieth-century oil embargoes and sanctions sought to incentivize foreign political actors to resolve discrete, noneconomic foreign crises.64 In contrast, new economic statecraft actions implemented under the same statutes have primarily aimed to bolster long-term domestic economic production.65
Still, before Learning Resources, executive assertions of authority to conduct new economic statecraft initially faced virtually no pushback from courts on statutory-authorization grounds.66 According to Professors Kathleen Claussen and Timothy Meyer, lower courts have been unwilling to push back on broad assertions of authority to implement Section 232 tariffs.67 Relatedly, Meyer and Sitaraman have suggested that the Supreme Court will likely “attempt to employ foreign affairs exceptionalism” to eschew MQD scrutiny of executive economic statecraft actions.68
B. New Economic Statecraft in Practice
Perhaps anticipating FANS-specific judicial deference, the executive branch has increasingly stretched the definition of “national security” to insulate unilateral pursuit of domestic political objectives from judicial scrutiny.69 For instance, President Biden blocked Nippon Steel’s proposed acquisition of U.S. Steel by invoking “credible evidence” that Nippon Steel “might take action that threatens to impair” U.S. security interests through acquiring U.S. Steel.70 Based on President Biden’s statement, the acquisition may inferably impair long-term U.S. steelmaking capacity and employment.71 Yet recharacterizing fluctuations in steelmaking capacity as a national security threat may have simply offered President Biden a procedurally safe route to achieving domestic political goals. On closer consideration, national security consequences appeared beside the point to President Biden’s decision. First, CFIUS review of the merger’s national security risks proved inconclusive.72 Second, in blocking the merger, President Biden reportedly sided with domestic political advisors over his National Security Advisor, Secretary of State, and Secretary of Defense.73 Even if national security risks existed, it seems doubtful that many domestic political advisors, but few national security advisors, would accurately identify such risks.74
Similar dynamics may have influenced President Trump’s tariffs. In imposing Section 232 tariffs on steel and aluminum imports in 2018,75 President Trump accepted the Commerce Department’s assessment that such imports threatened the Defense Department’s ability to satisfy national defense requirements,76 despite the Defense Department’s assessment to the contrary.77 Moreover, independent empirical studies suggest that domestic political objectives drove such policy: The 2018 tariffs did not cause substantial upticks in manufacturing output or employment,78 but their imposition shifted voters in protected industries, on balance, toward greater support for Republican candidates in subsequent elections.79 Likewise, when announcing the 2025 reciprocal tariffs, President Trump acknowledged that efforts to induce changes in trading partners’ behavior “ha[d] stalled” and framed the primary emergency as arising from the effect of trade “asymmetries . . . on U.S. domestic production.”80 Moreover, the Administration’s reciprocal tariff rates were nearly four times higher than what their own rate-setting formula and cited research papers appeared to propose.81 Whether deliberate or not, such upward unmooring of final tariff rates from the Administration’s own purported rate formula reinforced the perceived primacy of domestic economic concerns in shaping the Administration’s tariff policy.
C. Security Creep and Functionalist Failures
The recharacterization of long-term domestic production as a national security matter risks politicization and mission creep. Such risks compel the application of MQD, while undermining the functionalist justifications for FANS exceptionalism — expertise, secrecy, and dispatch.82 Politicization and self-aggrandizing mission creep in executive regulation are nothing new.83 Yet concerns about politicization and mission creep are especially severe in the definitionally nebulous new economic statecraft context. Indeed, expansive economic statecraft frameworks grant the executive branch enormous leeway over domestic economic activity.84 Reshaping long-term domestic production trajectories via executive-led economic statecraft also raises transparency and variability concerns. For example, as Meyer and Sitaraman note, without procedural guardrails, “presidential regulation” can prove especially opaque and unstable.85 Exacerbating these worries, presidential decisions under Section 721 are subject to heavily limited judicial review,86 and courts have proven especially reluctant to “second-guess[]” factual determinations of emergency situations by the executive branch.87
On the flip side, the domestic economic focus of new economic statecraft renders invocations of expertise, speed, and secrecy unpersuasive. Even when the executive branch has successfully avoided mathematical miscalculations in applying international economic expertise, recent economic statecraft actions have consistently disregarded national security advisors’ tautological expertise on national security matters in favor of domestic political advisors’ non-expert opinions on such matters.88 Nor does new economic statecraft require secrecy or dispatch. As Meyer and Sitaraman observe, trade policy’s domestic economic dimensions diminish secrecy’s value and increase opacity’s costs.89 More broadly, because new economic statecraft targets long-term domestic production, little need for clandestine or speedy action exists. Fundamental reshaping of U.S. industries’ economic performance will almost inevitably take time to achieve.90 Likewise, secrecy is less vital when domestic economic transformation serves as the primary mechanism to address a global emergency or security threat.91 Overall, by focusing on domestic economic output as the result of and solution to global emergencies and security threats, recent executive economic statecraft actions have undermined the traditional functionalist justifications for FANS exceptionalism.
II. Separation of Powers Strains and the Major Questions Solution
By recasting long-term domestic productive capacity in national security terms, the new economic statecraft raises not only functionalist but also separation of powers concerns. To some degree, all forms of executive-led economic statecraft raise such concerns by implicating both foreign commerce and FANS.92 When evaluating economic statecraft actions, courts face conflicting separation of powers risks: allowing infringement on congressional authority or second-guessing executive judgment. Caught between Scylla and Charybdis, jurists have often turned to historical interbranch practices in the foreign commerce and FANS spaces.93
New economic statecraft actions amplify the risk of the Executive infringing on congressional authority and mitigate the risk of courts second-guessing executive judgments by aiming to regulate domestic economic activity, traditionally Congress’s domain,94 in service of (ill-defined) national security goals.95 Formally, the Constitution assigns authority to regulate foreign commercial activity to Congress.96 Moreover, whereas twentieth-century historical practice may to some degree soothe separation of powers concerns raised by traditional economic statecraft actions, new economic statecraft initiatives conflict with historical understandings of separation of powers boundaries.97 Therefore, MQD, rather than FANS exceptionalism, serves as the more suitable judicial tool to ascertain congressional intent and safeguard congressional powers during review of new economic statecraft actions.98
A. General Separation of Powers Dilemmas in Economic Statecraft
In addition to implicating functionalist concerns of speed, secrecy, and expertise, virtually all delegations of foreign commerce powers raise two conflicting separation of powers concerns. On the one hand, strict interpretations of FANS-adjacent delegations risk unwittingly impinging on the President’s ill-defined Article II powers.99 Consequently, courts have frequently construed such delegations broadly to avoid determining Article II powers.100 Furthermore, because constitutional text defining executive FANS powers is generally viewed as sparse, courts have at times used historical “gloss” to infer congressional authorization when executive action in FANS has gone unchallenged.101
On the other hand, excessive deference in FANS-related delegations may enable the executive branch to increasingly infringe Congress’s enumerated constitutional powers. General concerns about executive mission creep and aggrandizement at Congress’s expense extend beyond FANS: Such concerns have animated recent MQD and agency deference jurisprudence.102 Yet perceived proximity to Article II powers can exacerbate these general concerns. As Claussen and Meyer note, deferential judicial posturing has invited the executive branch to tie foreign commerce delegations to the President’s inherent foreign affairs powers.103 This tying strategy can raise immediate concerns about second-guessing executive judgment, engender continued judicial deference, and cumulatively undermine Congress’s control over foreign commerce by condoning executive aggrandizement.104
Therefore, of all FANS-related congressional delegations,105 foreign- economic-relations delegations pose some of the trickiest questions for judicial review. As Meyer and Sitaraman observe, many foreign commerce–related statutes delegate authorities that implicate both foreign and domestic issues.106 Courts may not be well-positioned “to disentangle domestic and foreign economic aspects”107 of these delegations without resorting to “foreign policymaking.”108 Such line-drawing difficulties persist when determining whether a statutory delegation touches on independent executive powers.109 Whereas some commentators have suggested that most economic security statutes do not implicate independent powers,110 others have suggested that economic security measures naturally implicate independent executive powers over FANS.111
B. Dichotomous History and Practice
To navigate the multifaceted separation of powers concerns in the foreign affairs space, courts have relied on historical gloss112 and practical context113 to ascertain boundaries between executive authority (whether inherent or delegated) and congressional authority. When evaluating history and context in foreign economic relations, a dichotomy between traditional economic statecraft actions geared toward generating international agreements or resolving discrete, noneconomic foreign crises and new economic statecraft actions aimed at reshaping the domestic economy emerges.
On the one hand, twentieth-century practice has arguably ameliorated concerns over flexible executive interpretation of statutes authorizing traditional economic statecraft measures in response to fickle foreign events.114 As Professors Curtis Bradley and Jack Goldsmith note, presidential implementation of emergency trade measures to address foreign crises has occurred since at least the early twentieth century.115 Under certain assumptions, such longstanding historical practice may counsel against MQD and for broad interpretation of congressional delegations in the sanctions space.116 Relatedly, Professors Kristen Eichensehr and Oona Hathaway document an extensive history of congressional delegations that conferred on the President broad authority to craft executive agreements with foreign nations during the twentieth century.117 They conclude, on more functionalist grounds, that congressional delegations to construct such agreements should not be subject to MQD constraints.118
On the other hand, historical practice proves less favorable to deferential review of new economic statecraft. From the Founding era to the early twentieth century, foreign commercial measures aimed at shaping the domestic economy proceeded via congressional legislation.119 Whereas Congress delegated some discretion to the President for sanctions related to national security,120 it directly legislated on peacetime regulations of foreign commerce.121 As a result, regulatory measures aimed at promoting long-term domestic industry clearly fell under Congress’s purview.122 By contrast, presidential actions shaping long-run foreign commerce policy occurred “pursuant to express statutory delegation[s]” that were primarily “narrow in scope and highly conditional.”123 For example, even as Alexander Hamilton considered using tariffs to build a domestic industrial base to enhance national security,124 he went through Congress to pass the Tariff of 1790.125 When northern manufacturers sought to handicap foreign competition and promote national economic security, Congress passed the Tariff of 1828.126 In short, congressional primacy in foreign economic relations was at its peak when foreign economic policy measures aimed at promoting and protecting domestic economic activity.127
Nor did twentieth-century delegations authorize the President to unilaterally pursue broad protectionist intervention without clear congressional guidance. Twentieth-century Congresses delegated broad executive discretion over foreign commerce only in areas directly linked to war, foreign diplomacy, and negotiation with foreign counterparties.128 For example, the Reciprocal Tariff Act129 conferred broad authority on the President to adjust tariff rates “as [was] required or appropriate” for executing trade agreements with foreign governments.130 Likewise, the Trading with the Enemy Act131 (TWEA) originally granted the President authority to regulate various types of transactions in times of war.132 In contrast, provisions authorizing foreign commerce regulations to promote domestic production existed as narrow appendages, within broader statutes authorizing negotiation of (liberalizing) trade agreements, that allowed presidential action in narrow, clearly specified circumstances. For example, Section 232 was attached to the Trade Expansion Act of 1962, which authorized the President to negotiate tariff reductions of up to fifty percent.133 The Trade Act of 1974 contained three separate sections allowing for protectionist measures to respond to balance of payment crises (Section 122),134 privately claimed domestic industry threats (Section 201),135 and unfair foreign trade practices (Section 301).136 All sections include substantial procedural hurdles to establish that the underlying situation actually exists. Moreover, when Presidents invoked statutory language to pursue domestic-facing goals,137 Congress responded by subsequently limiting the delegated statutory authority. For example, after President Nixon invoked TWEA to impose a ten-percent import surcharge to prevent short-term dollar depreciation,138 Congress passed Section 122 to specifically limit presidential authority to resolve balance of payment crises and narrowed TWEA via IEEPA.139
In sum, far from establishing congressional inclination to delegate broadly in all foreign commerce settings, twentieth-century foreign commerce delegations limited use of broader language to particular situations involving war, diplomatic crises, and negotiation of international agreements.140 By contrast, Congress has consistently delegated foreign commerce regulatory authority more narrowly and specifically when enabling inward-facing protection of domestic industry.
C. The Major Questions Solution
In light of the competing separation of powers values and the dichotomy in historical practice, applying MQD, rather than FANS exceptionalism, to executive-led new economic statecraft actions better secures separation of powers norms and reflects congressional intent. Currently, MQD mandates “Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”141 Some jurists view the doctrine as a substantive canon that deliberately construes statutory delegations narrowly to preserve congressional power.142 Others view the doctrine as a semantic canon that leverages ordinary language’s inclination against fitting “elephants in mouseholes” to properly ascertain textual meaning.143 Under either rationale, MQD works to safeguard congressional power from encroachment by executive action.144 In contrast, FANS exceptionalism assumes that Congress typically intends to delegate broadly in these spaces, either because of adjacent independent presidential powers or based on historical practice.145 Either way, limited judicial interference is viewed as best preserving separation of powers when there exists laconic and vague constitutional text.146
MQD more suitably mitigates the separation of powers strains raised by presidential action in new economic statecraft, on formalist and historical grounds. Formalistically, the Constitution’s text clearly vests in Congress the power to regulate interstate and foreign commerce.147 This textual clarity weakens the rationale for exceptionalism: Interpreting statutes to foreclose executive action over foreign commerce regulation does not risk encroaching on Article II powers because constitutional text proves clear, rather than vague, on the delegated matter.148 Delegated duties are not “interlinked with duties” constitutionally “assigned to the President.”149 Nor does subject-matter adjacency to foreign powers automatically trigger inherent executive authority.150 If anything, subject-matter overlap could strengthen the case for MQD. True, some commentators have noted that foreign commerce’s subject-matter adjacency to FANS and independent Article II powers has been used by the executive branch to advocate for broad interpretation of foreign commerce delegations.151 However, to paraphrase Professor Jed Shugerman, subject-matter adjacency to inherent executive powers can constitute a “double-edged sword”152: Such powers could properly accommodate functionalist justifications for broad delegations based on comparative executive competence, yet they could also invite executive abuse.153 As functionalist justifications for executive branch competence in foreign commerce prove more limited,154 the case for construing delegations narrowly strengthens.155
Moreover, historical practice and context fail to establish that Congress has broadly delegated to the President across all aspects of trade and foreign commerce. True, some commentators, including Bradley and Goldsmith, have concluded that such historical practices imply a general tendency for Congress to delegate sweeping authority to the President in the trade policy and economic security context.156 But this inference proves overbroad,157 especially when one considers courts’ narrow treatment of historical context in prior MQD settings.158 Furthermore, congressional delegations that enable the President to adjust trade policy to protect domestic industry have generally done so narrowly. For example, Section 122 of the Trade Act of 1974 limited “import surcharges” designed to resolve balance-of-payment deficits to fifteen percent.159 The Tariff Act of 1922160 only enabled the President to impose tariffs that scientifically equalized importers’ and domestic producers’ production costs.161 The Tariff Act of 1890162 allowed the President to adjust tariff rates on five specific products only when non-reciprocal import policy existed abroad.163 The narrowing of TWEA also suggests that Congress has historically disapproved when Presidents’ invocation of foreign economic powers could overburden the domestic economy.164 Taken together, far from allowing new economic statecraft actions to escape MQD scrutiny, historical context rebuts the application of FANS exceptionalism in the new economic statecraft space.
III. Major Questions and Economic Emergency Case Law
Applying MQD to review executive action in new economic statecraft also better enforces existing doctrinal commitments. First, such application will reinforce recent Court precedent that prevents FANS implications and emergency situations from circumventing MQD scrutiny of executive action. Second, applying MQD better aligns with courts’ historical commitment to applying contemporaneously prevalent tools of statutory interpretation and eschewing categorical conferral of FANS deference in the review of economic statecraft actions with nonnegligible domestic effects.
A. Major Questions and Emergencies
Recent Supreme Court jurisprudence has applied MQD in emergency contexts, even when underlying emergencies plausibly implicate FANS. In Alabama Ass’n of Realtors v. Department of Health and Human Services,165 the Court effectively struck down an eviction moratorium implemented in response to the COVID-19 pandemic.166 Likewise, in Biden v. Nebraska,167 the Court struck down President Biden’s student loan forgiveness program, also implemented in response to the pandemic.168 Most recently, in Learning Resources, the Court struck down President Trump’s 2025 tariff measures implemented via IEEPA.169 Although the majority’s grounds for striking down the tariffs technically remained ambiguous,170 three Justices in the majority expressly applied MQD to justify their invalidation of the tariffs.171
All three cases involved sweeping regulatory actions that occurred pursuant to statutes touching on FANS matters.172 Yet arguments invoking executive competence in exercising emergency discretion did not win over the Court’s majority.173 For example, President Biden’s order to waive student loan debt facially implicated an emergency situation,174 and loan relief authorized under the HEROES Act could implicate FANS matters depending on the triggering event.175 The eviction moratorium in Alabama Ass’n of Realtors began as a COVID-19 emergency measure,176 and Section 361(a) of the Public Health Service Act177 allows for executive branch regulation “necessary to prevent the . . . spread of communicable diseases from foreign countries.”178 Most obviously, the Liberation Day tariffs reviewed in Learning Resources invoked IEEPA, which clearly implicates foreign emergencies,179 as legal justification.180 Executive-led new economic statecraft actions may implicate discrete, noneconomic elements of foreign affairs. Yet, when a President leverages economic statecraft statutes to fundamentally reshape domestic economic conditions and impose billions in costs on domestic entities, Supreme Court precedent would suggest no exemption from MQD scrutiny.
B. Judicial Scrutiny of Economic Statecraft
Applying MQD to executive actions in new economic statecraft would also reinforce prior cases’ commitment to applying prevailing statutory interpretation tools in the economic statecraft space. True, at least before Learning Resources, courts often ruled in favor of the executive branch in FANS-related economic statecraft cases.181 Yet, when domestic economic impacts proved salient in a reviewed action, courts applied established statutory interpretation tools and forwent broad proclamations of categorical deference. Three pre–Learning Resources cases are instructive.
In United States v. Yoshida International, Inc. (Yoshida II),182 the United States Court of Customs and Patent Appeals upheld President Nixon’s ten-percent surcharge on dutiable imports.183 To some, Yoshida II appeared to support a more general authorization to impose tariffs pursuant to IEEPA due to the nearly identical language shared within the statute that authorized Nixon’s tariffs.184 However, Yoshida II had limited scope: “To uphold the specific surcharge . . . is not to approve . . . any future surcharge of a different nature.”185 Moreover, the Yoshida II court conducted means-ends review on the surcharge’s nexus with the declared emergency and “the power delegated.”186 To the Yoshida II court, means-ends scrutiny served as an established statutory interpretation “standard inherently applicable to the exercise of delegated emergency powers.”187
Similarly, in Dames & Moore v. Regan,188 the Supreme Court upheld President Carter’s nullification of liens on Iranian assets and suspension of legal claims against Iran.189 Beyond forswearing the creation of “general ‘guidelines’” and “confin[ing] the opinion only to the very questions necessary to [deciding] the case,”190 the Dames & Moore Court employed prevailing tools of statutory interpretation. First, the Court held that IEEPA specifically authorized nullification on plain textual grounds.191 Second, contrary to the government’s position, it concluded that IEEPA alone could not “be read to authorize the suspension of the claims.”192 Instead, it resolved the claim-settlement issue by referencing the “history of congressional acquiescence in” President-led international claim settlement based on the 1949 International Claims Settlement Act.193 This Act, as well as congressional acquiescence to executive-led international claim settlement agreements pursued under its auspices, proved “[c]rucial to [the] decision.”194 In sum, authority to suspend claims against foreign governments did not arise exclusively from IEEPA, an economic security statute. Rather, it also arose from the 1949 International Claims Settlement Act, which unlocked independent executive responsibilities in foreign policymaking by focusing on foreign claim settlement.195 Dames & Moore’s careful treatment of IEEPA’s text thus cuts against the conclusion that the case evinces the Supreme Court’s inclination to interpret statutes like IEEPA “with a broad brush.”196
Finally, judicial review of Section 232 also involved application of established statutory interpretation tools.197 In Federal Energy Administration v. Algonquin SNG, Inc.,198 the Court upheld petroleum license fees as an import adjustment measure.199 Yet again, however, the Court employed then-predominant statutory interpretation tools to reach its conclusion. Along with labeling its “holding . . . a limited one,”200 the Court drew upon legislative history, a then-prevalent tool of statutory interpretation,201 to arrive at its result.202
Altogether, the most salient pre–Learning Resources cases involving statutory interpretation of delegations in economic statecraft statutes do not suggest that courts have categorically accepted unduly broad interpretations of those delegations under the guise of FANS exceptionalism. Far from eschewing statutory interpretation in favor of categorical deference,203 judicial review of economic security statutes has applied prevailing statutory interpretation tools to delineate the scope of delegations conferred by such statutes.204 Thus, as Learning Resources might suggest,205 MQD should likewise govern in the economic statecraft domain, because it has emerged as a widely used statutory interpretation tool.206
Conclusion
The executive branch increasingly seeks to reshape the domestic economy by invoking security rationales. This Note demonstrates why enshrining FANS exceptionalism and deferential review of these executive efforts, rather than applying MQD, would prove misguided on functionalist, structural, and doctrinal grounds. To some, perceived judicial inaction implies that only Congress can effectively restrain executive-led national security creep.207 Yet, with Congress largely paralyzed, encouraging legislative action may prove an ineffective substitute for judicial inaction.208 Lack of congressional action over executive agency initiatives did not stop courts from constraining such initiatives in the early 2020s.209 Analogously, a strong case exists for courts to constrain executive actions in new economic statecraft with MQD. As executive-led regulation in national security’s name threatens to swallow domestic economic policy, MQD offers a viable restraint to mitigate the separation of powers strains and perverse policymaking incentives that might arise from the new economic statecraft.