Guest Post: The Learning Resources Roadmap for Hemani
by Joel S. Johnson
[Joel S. Johnson is Associate Professor of Law at the Caruso School of Law at Pepperdine University.]
The Supreme Court’s recent 6-3 decision in Learning Resources, Inc. v. Trump is a significant victory for those who believe the President cannot impose tariffs without a clear mandate from Congress. But as a scholar focused less on Congress’s power of the purse and more on its power to define crimes and set punishments, I see it as something more—a roadmap for the future of interpreting federal criminal statutes.
In Learning Resources, the Court held that the International Emergency Economic Powers Act does not grant the President the “extraordinary” power to impose tariffs. To reach that result, three justices relied on the major questions doctrine—an interpretive rule requiring Congress to speak with clarity before an executive actor can exercise power of “vast economic and political significance.” Three justices reached the same result using only “ordinary tools of statutory interpretation.” And three justices dissented because they thought the statute clearly empowered the President to impose tariffs.
While Learning Resources was about trade policy, the debate among the justices reveals a deep separation-of-powers commitment that is directly relevant to United States v. Hemani, a criminal case involving a Second Amendment challenge that will be argued before the Court next week.
As I argue in a recently published law review article and in an amicus brief filed in Hemani, the logic of the major questions doctrine has much to offer criminal law. In Hemani, the Court should embrace what I call “major-questions lenity” to prevent the implicit delegation of crime definition to the executive branch. Learning Resources shows how to get there.
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The fractured opinions in Learning Resources revealed the various ways the justices view the relationship between executive power and legislative clarity.
Chief Justice Roberts, writing for a three-Justice plurality, framed the major questions doctrine as a “reason to hesitate” before concluding that Congress meant to confer an “extraordinary power.” He emphasized that the doctrine applies with particular force when a delegation involves a “core congressional power,” such as the power of the purse. For him, the major questions doctrine is a front-end check that requires “clear congressional authorization” before an executive actor can exercise a “transformative” power of “vast economic and political significance.”
In a concurring opinion, Justice Gorsuch made clear that he views the major questions doctrine as a substantive clear-statement rule—a normative commitment to the separation of powers that prevents the implicit delegation of authority. In his view, an executive actor cannot exercise extraordinary power without a “definite and unmistakable expression” from Congress.
Justice Barrett wrote her own concurring opinion, renewing her view that the major questions doctrine can be understood as an ordinary textualist tool of interpretation that “situates text in context”—specifically, the context of our constitutional structure. Relying on common-sense principles of communication, she argued that a reasonable interpreter expects Congress to speak clearly on “big-time policy calls.” For Barrett, a lack of specificity is a contextual clue that the power was not granted.
Justice Kagan (joined by Justices Sotomayor and Jackson) reached the same result, but declined to rely on the major questions doctrine. Justice Kagan argued that “ordinary tools of statutory interpretation”—such as text, context, and structural clues—were sufficient to show that the statute did not empower the President to impose tariffs. The implication seems to be that these three justices view the major questions doctrine not as a front-end clear-statement rule that frames statutory analysis, but rather as a back-end tie-breaker rule—the same low status that modern lenity holds in the interpretive process.
Justice Jackson also wrote a concurring opinion, arguing that legislative history was some of the best evidence that the statute did not empower the President to impose tariffs.
The three dissenting justices have previously signed on to opinions applying the major questions doctrine. They simply thought that the doctrine did not impede the President’s authority in this case. In the principal dissent, Justice Kavanaugh (joined by Justices Thomas and Alito) criticized the Roberts plurality for turning the major questions doctrine into a “magic-words test.” He argued that broad statutory language like “regulate . . . importation” is clear authorization, and that the major questions doctrine should not be used to override the plain meaning of broad grants, especially in the context of foreign affairs.
In a separate dissent, Justice Thomas argued that, because importing goods is a “matter of privilege” rather than a right, it does not implicate the “core legislative power” over life, liberty, or property. As a result, he did not think the strict nondelegation concerns that the major questions doctrine is designed to protect were triggered in this context.
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This brings us to United States v. Hemani. At issue is 18 U.S.C. § 922(g)(3), which makes it a felony for an “unlawful user” of a controlled substance to possess a firearm. Under a longstanding regulation that was in place until about a month ago, the government interpreted the statute as potentially covering tens of millions of Americans—including millions of Americans who use marijuana in states where it is legal.
The question presented in Hemani is whether the statute violates the Second Amendment. But as I have argued, the Court can avoid the constitutional question entirely by resolving the case on a statutory ground.
The phrase “unlawful user” is vague. It doesn’t clearly draw a line between who along the spectrum of drug users is covered and who is not. Does unlawful-user status apply to anyone who has ever used drugs illegally, even if only once or only occasionally? Does it apply only to someone holding a gun while high? Or is the line somewhere in between?
Historically, the rule of lenity required courts to resolve such indeterminacies in favor of the defendant. But in the modern era, lenity has been demoted to a weak back-end tie-breaker, applied only after a finding of “grievous ambiguity.” This has enabled the government to advance overly broad and literalistic constructions of penal statutes.
As to Section 922(g)(3), for example, a federal regulation long claimed that a single use within a year was enough to trigger the ban. Only after certiorari was granted in Hemani did the government back away from that policy in favor of the Solicitor General’s argument for a “habitual user” construction—which is still broader than what the plain text of the statute clearly supports.
This sudden retreat illustrates a problem of interpretive lag that plagues our current system: without a front-end rule requiring clarity, prosecutors are free to push the envelope for years—often decades—securing convictions based on expansive theories. The government makes a strategic course correction only after the Court finally takes notice.
The party briefs in Hemani further highlight the confusion that results when the Court fails to enforce a generic rule of narrow construction in the context of criminal statutes. While the government’s brief proposes an atextual “habitual user” standard that it cannot precisely define, Hemani argues that the statute is so indeterminate that it is unconstitutionally vague.
The opinions in Learning Resources suggest a better path: applying a rule of major-questions lenity to adopt a narrow construction of Section 922(g)(3). This would restore lenity as a front-end clear-statement rule that frames how criminal statutes are construed. Just as the Court hesitates before allowing the President to impose a tariff under a general grant of power, it would hesitate before allowing prosecutors to turn tens of millions of citizens into felons based on a vague phrase.
Under a rule of major-questions lenity, before prosecutors could apply federal criminal statutes to a significant or novel class of behavior, they would be required to point to “clear congressional authorization.” If Congress wants to exercise its power to punish to authorize a sweeping, nationwide criminal ban on gun ownership for a massive class of citizens, it must do so with unmistakable clarity. It will not be presumed to have hidden such a major policy in a broad or vague term.
The fractured opinions in Learning Resources suggest a majority of Justices may be ready for this more robust version of lenity. Chief Justice Roberts and Justice Gorsuch view the major questions doctrine as a front-end clear-statement rule. Both have separately made clear that they view crime definition as a core congressional power. And Justice Gorsuch has long been a proponent of a more robust version of lenity motivated by separation-of-powers concerns similar to those undergirding the major questions doctrine.
Justice Barrett’s text-in-context view suggests that a reasonable reader who understands that our constitutional structure makes it Congress’s prerogative to define crimes would expect Congress to be crystal clear when making big-time policy calls about criminal law.
Justice Thomas’s dissent in Learning Resources is also consistent with major-questions lenity. He noted that the “core legislative power” with which the major questions doctrine is concerned is at its zenith when dealing with the “deprivations of life, liberty, or property.” The deprivation of liberty possible through criminal law is at the heart of that category. And unlike trade—which Justice Thomas deemed a privilege—gun possession is a right. In the past, Justice Thomas has also been willing to sign on to opinions relying on lenity to resolve indeterminacies in favor of criminal defendants.
In addition, although Justices Sotomayor and Jackson showed no interest in relying on the major questions doctrine in Learning Resources, they have separately joined some of Justice Gorsuch’s recent opinions arguing for a more robust version of lenity in the criminal context.
That’s six potential votes right there. Some of the other justices may be in play as well.
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If separation-of-powers principles suggest that Congress would not hide a massive tariff power in the word “regulate,” then surely those same principles suggest that Congress would not hide a sweeping theory of prosecution in an unclear criminal statute.
In Hemani, the Court should apply major-questions lenity and construe “unlawful user” to cover only those under the immediate influence of drugs while possessing a gun—the only “core” meaning that is clear. By making clear that the logic of the major questions doctrine applies in the criminal realm, the Court can restore historic lenity and ensure that the power to define crimes and set punishment remains in the hands of the people’s representatives, not in the hands of executive actors.
