The Sketchy and Incredibly Recent Origins of the Major Questions Doctrine

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: Thank you.

0:00:02 Thomas: Says we would like this agency to do this the The Supreme Court says no because not allowed to because of the major questions doctrine, right?

0:00:17 Jenessa: Law professor wrote a provocative question on Twitter. Okay, graduated law school in 2000, and I think I did pretty well. And I swear to God, I never heard of the major questions doctrine until this week. Like,

0:00:34 Thomas: Hello, and welcome to Opening Arguments. This is episode 1242. I'm Thomas Smith. That over there is Jenessa. How are you doing?

0:00:40 Jenessa: All right. Got some pretty snow coming down, so I got something nice to look at.

0:00:46 Thomas: I was just looking outside my window. It's totally sunny. It is like already hot here. We had like some kind of cold weather for a while. And then it is like, oh, no, it is California.

0:00:54 Jenessa: Man uh love the snow but to look at the winter blues is killing me this year so I'm I'm ready for the sun

0:01:06 Thomas: Man. Yeah. You know, you can always come visit.

0:01:11 Jenessa: Do my second least favorite thing which is get on a plane no

0:01:15 Thomas: Yeah. Yeah. Flying is not fun. But get anxiety or something?

0:01:19 Jenessa: Little bit of that and a little bit of like it's just so cramped and I if I sit in any position for more than four seconds I'm in pain so

0:01:29 Thomas: Fellow. I was going to say fellow traveler. Fellow bad traveler. I have the same thing. The seats are not. I have a broad back. They're not built for me. It's agony. Have those things. This is not interesting. But anyway, you should come, but it's okay if you don't want to fly. I get it. I'll just enjoy this sunny weather myself until it becomes so hot that it becomes the surface of the sun. Then it'll late be too to come visit because we'll just be dead. So if you want to come, the time's now. Oh, man.

0:02:01 Jenessa: Of year when it's molten lava hot, humid, and mosquitoes over here, so you don't want to come here in exchange.

0:02:08 Thomas: No, there was no discussion of that. I'm not going over. No. Awesome. All right. Well, what are we talking about today?

0:02:15 Jenessa: We are going to talk about the major questions doctrine?

0:02:20 Thomas: Is it a doctrine?

0:02:22 Jenessa: Who you ask. Yeah.

0:02:25 Thomas: Impression, and we talked about this with Matt, and so we thought it'd be good to do like a follow up, bigger deep dive. My impression is that it's all made up and the points don't matter. You know, you're going to give us the deeper dive. But if it is all made up and the points don't matter, I feel like calling it a doctrine is a little like, that's part of it. You know, it shouldn't be a doctrine. It should be like thing a someone thought of. We need a word that's more like derogatory. We need derogatorily term for it. The major questions, dumb thing,

0:02:56 Jenessa: You that independent state legislature doctrine that a bunch of people have been like, Like, no, independent state legislature myth, my friend, not real, not a doctrine. Get out of here with this stuff you pulled out of your ass two years ago to try to like lie about elections. Oh, God, it's more than two years. Two years ago, 2020, good Lord.

0:03:09 Thomas: A doctrine.

0:03:20 Jenessa: There are many complaints that like that word is doing a lot of heavy lifting and it's on purpose.

0:03:18 Thomas: Oh, wow. Yeah, All right. Well, I'm excited to learn a little bit about, I guess, in kind of the history and how about, oh, how does it work? It's like, well, they just made it up. So I don't it's like you're going to teach us the D &D rules that they made up about a thing that shouldn't exist. We going through, broad you 200 year history of the thing that was invented last week?

0:03:47 Jenessa: The between four and 20 year history, depending on who you ask.

0:03:56 Thomas: Right, well, we'll take our usual break, which you can avoid at Patreon .com slash law and then we will be talking some major questions with Jenessa so uh after this we'll get to it um question what the hell is this stupid thing I guess that's my first major question um

0:04:14 Jenessa: Yeah, that's a good place to start. For sure, that word doctrine is doing a lot of heavy lifting. You implies a lot of things when you hear that. I you didn't go to law school, if you aren't somebody very familiar with this, you just hear that term. I think you would assume that old, it's well accepted, it's a firm rule, it is not really questioned, you know, like I think like religious doctrines. Of that is true. It is extremely controversial. It is very new. Even the oldest estimate is very new. It is no one definition of it so found this really helpful from a law review article. A really great article. I'll link to it in the show notes, Becoming a Doctrine by Allison or Larson. It is an excellent review. And it was very validating because it noted a lot of the things I was noticing as I I was doing my own research. Here a fellow law professor. So 2022, when the Supreme Court heard oral arguments in West Virginia v. EPA, a case challenging the EPA's authority to pass the Clean Power Plan, so this is a regulation, a law professor wrote a provocative question on Twitter. Quote, okay, I graduated law school in 2000, and I think I did pretty well. And I swear to God, I never heard of the major questions doctrine until this week.

0:05:58 Jenessa: Like, um, where is this from?

0:06:01 Thomas: Yeah. Yep.

0:06:02 Jenessa: Years later, same question. This is not a thing I learned. And think that sums it up perfectly. It feels like it just came out of the ether. And all of a sudden, everybody's saying it. No.

0:06:15 Thomas: It's not a thing you learned. Huh.

0:06:18 Jenessa: Like, I just graduated, it feels like.

0:06:20 Thomas: Like they do have to to teach you the stuff that the Supreme Court makes up. Like, you know what I mean? Like even, if it's like with a grain of salt and you haven't learned it in law school.

0:06:30 Jenessa: That case was in 2022. And, had finished con law by then. Like,

0:06:37 Thomas: Feel like I've been hearing about it, but I guess it it is so unofficial, it's not a thing that they would have been like teaching. It's more like, well, these people have been talking about this.

0:06:48 Jenessa: They got to teach you stuff that's going to be on the bar exam, right?

0:06:51 Thomas: Yeah.

0:06:51 Jenessa: Right. And exam usually has about a three year lag. Something brand new comes out and they're like, how do we make a question out of this? Well, if it's brand new, but it's a super clear rule, like it's not that hard to

0:07:06 Thomas: Yeah, not too, not Too Difficult.

0:07:07 Jenessa: Yeah. Like we think of something as a doctrine, a rule, like it'S the kind of thing that lends itself very well to a multiple choice. Something that's whether you like the rule or not, if you know the rule, you could apply it to facts and there would be a right answer. Now, I would strongly disagree that the bar exam does that well in the way that it writes those questions. But, you in general, is that possible? Absolutely. When you have a clear rule. That is what we do not have here. Order to talk about it, I kind of have to define it, right? Problem is, I feel like in doing so, I accidentally make it clearer than it is and legitimize it. Like, if I have to read like seven cases and four law review articles to think I know what it means, I'm going to give you a definition that sounds like it's a thing, but it it but it isn't so

0:08:04 Thomas: Just make everybody everybody be crystal clear it's not a thing and Jenessa is just doing her best to describe a not thing that is being used to accomplish right -wing ends basically right hmm

0:08:17 Jenessa: So I think what's more helpful is to kind of just tell you what other people have said it is over time and that might illustrate it better so place where it is first ever said the words major questions doctrine in any court case ever is in 2020 West Virginia v EPA and that

0:08:42 Thomas: Really so I know I've heard it before that but maybe it just wasn't like written into anything.

0:08:47 Jenessa: Starts to appear in law review articles and like on the internet a little earlier than that so

0:08:56 Thomas: So then that means it wouldn't have been in any oral argument for the Supreme Court before that. Oh, my God. I would have sworn it was at least 20, first Trump term. Wow. It's amazing how fast these things can just be wished into existence.

0:09:09 Jenessa: 2022 okay is a court decision the first time ever and it's a supreme court decision that's a little weird but the first time the words are used but you would bet the first Time we came up with the plain sight rule they didn't say like and henceforth we shall call this the plain site rule like you know what I mean yeah

0:09:33 Thomas: Yeah, later on, you kind of come up with a name for like what the test is sort Kavanaugh stops is something thing we're making happen and we're making it happen quickly but Kavanaugh didn't say hey guys I got a new thing it's called the me stops so that wouldn't Kavanaug stop wouldn't appear in the Supreme Court until I think actually it's been in a lot of lower court decisions saying hey they're doing this thing called Kavanauga stuff but point is that's after the fact is what you're saying so

0:10:02 Jenessa: So it wouldn't be totally shocking if the concept existed before the word. It's a little weird to me that the first time the word even appears is in a Supreme Court case. Like you'd think it would kind of enter the zeitgeist a little earlier, but all right, fine. So I'm like, okay, that's, that'll be my starting point. I'm going to work backward and forward to say forward people should keep using it and what they would do is cite this case as this is the the word and the definition right you you must if you're going to tell me there is a major questions doctrine you must give me a definition and

0:10:09 Thomas: Ideally, yeah.

0:10:41 Jenessa: Then what did they cite you might be the first time they named it but you didn't make it it up right then and there. Like, Give me the definition and cite to someone who said it. Where are you getting this concept from? Because they're very defensive that they did not just make this up in 2022.

0:11:00 Thomas: Sorry, who's they?

0:11:01 Jenessa: The conservative justices, very defensive about this.

0:11:05 Thomas: Was this at the Supreme Court or was this at, I forget. Okay. So it wasn't a lower court thing first. Right.

0:11:07 Jenessa: This, yes. No.

0:11:11 Thomas: I think you said, okay, gotcha.

0:11:12 Jenessa: Yeah. Okay. So I go to that case, West Virginia v. EPA 2022, first time someone says the words major questions doctrine, and I expect to see a definition. And the first, you know, control F, find that major questions doctrine. The first thing they say, this is about the EPA, they've repeald a regulation under the the first Trump administration. And, you know, that's not surprising. They've appointed somebody to try to destroy our environment. And Supreme Court says the EPA, in doing so, found that couldn't do that regulation. They should never have done that regulation because it violated the major questions doctrine. How could the EPA have decided for themselves themselves that they were violating a rule that that's never been named. Where the hell did they get it from? So went back and found that it was, you know, their kind of, I guess you would say, like their announcement, their sort of public comment on why they were doing what they were doing. And it does say the major question doctrine and says the Supreme The courts at all have never given us a bright line rule, but here's some things to consider. And we think the previous EPA was overstepping their bounds and we have to stop doing this. And they cite, too, a dissent that Kavanaugh wrote in 2017 when he was on the D .C. circuit.

0:12:07 Thomas: Yeah, yeah,

0:12:47 Jenessa: Is where I was like, oh, this has been astroturfed. This is made up nonsense.

0:12:52 Thomas: Yeah I it's one thing to cite a Supreme Court dissent which is still questionable but I know sometimes that's happened in a good way or sometimes there's dissent that has valuable stuff? Most of the time, no. But a dissent in the D .C. Circuit? Seems a little weird to me.

0:13:08 Jenessa: Are an executive agency. Going to say, I know I'm not allowed to do this. How do I know that? Because of a dissent a few years ago in the D.C. circuit, the

0:13:22 Thomas: The D.C. Circuit is literally just supposed to apply the Supreme Court like the best of their ability. You know, so like if it's a dissident, that

0:13:30 Jenessa: Have at least been a majority opinion in some circuit somewhere, right? Like, this is weird. Though the EPA is supposed to be, you know, environment experts, we know this thing is going to be written and by a lawyer who works there, that's fine. When you say, you you have to explain yourself, why am I doing what I'm doing? You can't make decisions that are arbitrary and capricious. Normally you would announce like, this is why this is good for the environment or what, you know, yeah.

0:14:02 Thomas: The thing you're supposed to do here. Yeah yeah

0:14:06 Jenessa: Or like, you Know, we have to balance a cost benefit and like, Like, this is costing the economy a ton and not helping the environment a ton. Like, whatever. Make shit up. Like, say something. It's very weird to be making a legal argument about, like, a legal philosophy that you think the Supreme Court would tell you that you, like. What are you doing? And are the odds some lawyer who works for the EPA is reading the dissents in the, like this is astroturfed. This is the Federalist Society plugging this, trying to get this in. And sure enough, you go read the Kavanaugh dissent, he wrote the major rules doctrine, not questions.

0:14:51 Thomas: So they don't even have consistency in the name

0:14:54 Jenessa: I think it really got workshopped as, like, what would be the best way to say this. Writes this sentence that is atrocious. He's is a rule that's been around for a very long time in a series of important cases over the last 25 years

0:15:10 Thomas: Handed down from my grandmother she used to tell me about the major rules question thingy that we can't even agree on the name on that's

0:15:16 Jenessa: Over past 25 years no supreme court has required clear congressional authorization for major agency rules of this kind no citations yeah he later he'll cite cases where the supreme court limited agency power and there's nothing that sentence that we've been doing this for 25 years has no citutions um is he getting that from? A lot of people cite back to Justice Breyer wrote a law review article in 1986 back when he was a circuit court judge. And said the words major question

0:15:30 Thomas: Just made up yeah hmm oh

0:16:05 Jenessa: A long paragraph but I have to read you this to give you the context of how somebody is claiming we can actually go back this far law review article this is not in the context of any specific case any fact pattern where he's trying to rule on something but he's talking about how Congress can interpret what do we do when we have an agency doing something and we're not sure what to do. More when the agency has special expertise that it can bring to bear on the legal question. Is the particular question one that the agency or the court is more likely to answer correctly?

0:16:44 Thomas: Sounds like he's saying drawing the court be answering this or should the agency filled with experts be answering it

0:16:49 Jenessa: Yes, or court more likely, to answer the question correctly. Does the question ,for example, concern common law or constitutional law or does it concern matters of agency administration. A

0:17:04 Thomas: Particles in the air like parts per million of technical stuff that the court should not be answering.

0:17:10 Jenessa: Nonsense to intervene in that way. A Court may also ask whether the legal question is an important one. Congress is more likely to have focused upon and answered major questions while leaving interstitial matters to answer themselves in the course of the statute's daily administration. A court may also look to see whether the language is inherently imprecise, I .e. whether the words of the statue are phrased so broadly as to invite agency interpretation. It might also consider the extent to which the answer to the legal question will clarify, illuminate, or stabilize a broad area of law. Finally, a court might ask itself whether the agency can be trusted to give a properly balanced answer. Courts sometimes fear that certain agencies suffer from tunnel vision and as a result might seek to expand their power beyond the authority that Congress gave them. The paragraph goes on a little longer. I just want to emphasize that is where they are saying the major questions doctrine has been around for so long.

0:18:25 Jenessa: He major questions as one example of like 15 different things you might consider in one paragraph in a law review that is like many, many pages.

0:18:38 Thomas: This is exactly like when they refused to vote on Merrick Garland and then called it the Biden rule. They love to do this. They live to find a thing that's, well, it's because you sort of did a thing that could kind of, if you squint, be related to what we're doing. So therefore, we're going to to take it 900 steps further than you ever would have, would have taken it. It's, it's a tried and true method. Sounded like Breyer was saying, and this is a very different time, 1986, right? I think you said, and that Breyer, it was like the most liberal justice anyway, you super woke, I might say.

0:19:13 Jenessa: Is on the left yeah yes

0:19:17 Thomas: But but like in in a time of like Reaganism and like all that kind of thing, it's, you you should answer questions of deferring to federal agencies or not. And this before Chevron? I don't know. That's got to be another part of this. Right.

0:19:29 Jenessa: Chevron was two years before so he's writing this two years after

0:19:32 Thomas: So that all together, you think it's a very different time in terms of interpreting like it wasn't really the the conservative project to get rid of all federal agency powers. I I think that was a time when they were ascendant and were not looking to limit federal agencies power. Hour. Point is, I with you. It sounded like, okay, here's a list of things to look at when you're trying to look like how to interpret a particular aspect of a law and whether or not it authorizes a certain agency to do something you can use as one of the million factors. Well, if question, that might be less likely to have been something that they wanted to um to this federal agency but that's still like sense within the context of hey something's a little ambiguous here let's try to figure out what congress meant right like doesn't that sound like it's kind of like that that what the rule is now is congress says we would like this agency to do this the The Supreme Court says no because of the you're not allowed to because of the major questions doctrine, right?

0:20:41 Jenessa: That's pretty much kagan's complaint is there are plenty of times when congress clearly delegated this power and you guys are like well not clear enough for us and holding a higher standard to things that they have declared to be major and she's like isn't everything major like what is even happening here so have briar saying this And people are just latching on to the fact that the words major questions happened in 86 in a law review article. When do we first get anything kind of like that in a court case? The brown and williamson tobacco co uh the fda tried to use the uh and drug act to regulate tobacco which I would think is a drug and that should be pretty straightforward and the court said no and they cited briar's law review article to say like oh yeah that's a really big thing like wooden congress briar dissented and this was the year 2000 so and williamson is you know the shortened version everybody will keep citing to as like where the major questions doctrine really started they don't use those words they do cite to briar who used those words but briar was dissenting briar

0:21:32 Thomas: Himself in the case.

0:22:07 Jenessa: Yeah like it's kind of rude honestly to be like well Breyer said these are things to consider and Breyer himself is like I have considered the things I would consider and I think you can do this so

0:22:14 Thomas: So ridiculous. Yeah. Well, it just goes to show how like fake their jurisprudence has been. You can't cite the guy and then be like, yeah Yeah. What he said. And then he's right there being like, not that.

0:22:35 Jenessa: Of all how do you get away with it right Right in that moment. Second of all, the audacity to cite back to that, first that's the rule that we have now named the major questions doctrine and we're allowed to name it that because Breyer called it that. Gotcha liberal. And he in it like it's even worse when you're going to pull it into the future that way, to use his words. It's like, come on. How are we going to define this over time? Breyer in 86 is just, I don't think you can reasonably connect this at at all he's got a giant list of things you should think about when deciding if the language is ambiguous what did congress mean to delegate here's 400 things I happen to have used the word major and the word questions happen to be next to each other in a giant paragraph like and Williamson is where they're gonna start saying things like that there are extraordinary cases and that you have to consider the economic and political impacts that and political magnitude to something.

0:22:53 Thomas: Suck it, libs. Yeah, what? What do you?

0:23:56 Jenessa: You are trying to say Congress did or didn't mean to delegate this power, when something has huge economic and political significance, maybe we should lean, that's one factor to lean us towards they didn't mean to delegate it. In the year 2000. And that is allegedly how we can say the major questions doctrine is 25 years old.

0:24:18 Thomas: Yeah no. trying to say that? Oh

0:24:21 Jenessa: When he says it's 25 years old and starts citing.

0:24:25 Thomas: Right right right that's right okay and is this in his descent thing or

0:24:30 Jenessa: Court today, when they try to say what is the major questions doctrine, they will say that quite a bit. They much every time They talk about the major questions doctrine. If it's after West Virginia v. EPA, they will always cite that case because that's the first time they said those words. And then they will say, quoting Brown and Williamson, because they're quoting back to great economic and political significance as like some factor that matters. Errors. In that West Virginia case, I'm like, okay, well, you use the words here. I need a definition. Is what I get from the Supreme Court the first time they use those words, give me a definition, it is a fundamental canon of statutory construction that the words of a statute must be read in their context with a view to their place in the overall statutory scheme. Citation to a case. Okay, I mean, that's pretty straightforward. The statute at issue is one that confers authority upon an administrative agency, that inquiry must be, quoting Brenna Williamson, shaped at least in some measure by the nature of the question presented, whether Congress in fact meant to confer the power the agency has asserted. The ordinary case, that that context has no great effect on the appropriate analysis.

0:25:50 Thomas: When we want it to yeah

0:25:53 Jenessa: Precedent our teachers that there are, quote, extraordinary cases that call for a different approach. Cases in which the, quote history and the breadth of the authority that the agency has asserted, end quote, and the, start quote, economic and political significance, end end quote, of that assertion provide a, start quote, reason to hesitate before concluding that Congress, end quote meant to confer such authority. Definition of a doctrine should not be a paragraph.

0:26:27 Thomas: If it were it'd be a paragraph that actually said something it's

0:26:33 Jenessa: If we were to take plain sight doctrine, I bet you could tell me what is plain sight. Yeah, exactly. Yeah.

0:26:36 Thomas: Are you talking about like the search and seizure type type thing? Like if during a police search, there's, I don't know, something, something drugs, evidence, whatever, in plain sight, that's You're okay to grab it, right?

0:26:51 Jenessa: Exactly. One sentence. If police are legally in a location and an object is in plain sight they don't need a warrant done uh of the poisonous tree if you illegally obtained evidence that would have required a warrant that evidence is not admissible any evidence you obtained because of that is also inadmissible done like this is a doctrine if this This is a rule that is just like black and white, you I could put in a law textbook for students. Should just be like one quote or one sentence that I can actually apply to something. And I'm getting a whole paragraph of a mess.

0:27:32 Thomas: Exactly. I could imagine a definition needing to be longer, but you would need it to actually do something. That's my biggest complaint. And further than just merely complaining, there is that whole thing that, you know, reliability, like part of the law is, and part of like jurisprudence is people need to be able to know what the law is. And guess this is a little weird because it's like Congress, you knows, but like, that's also, I think true, like Congress should know and be ableto rely on like when they delegate something that's gonna happen. And it's not going to be overturned by a court that just wants to.

0:27:53 Jenessa: Precisely. Right. Yes. Are the words I have to use to delegate my power appropriately?

0:28:12 Thomas: Yeah.

0:28:13 Jenessa: They need to know that. You just say it needs to be super duper extra clear when the question is major, when there is big economic and political significance, like, don't know how that helps me. Sight's pretty straightforward fruit of the poisonous tree like and like directly follow from the constitution now does it say in the constitution oh like you have to throw out evidence no but it does clearly say you you are protected against unreasonable search and seizure seizure, what'll make something reasonable? Need to get a warrant signed by a judge, like those details are in there. It didn't say what to do if they do the inevitable thing that they get evidence without a warrant, what are we supposed to do? Don't know, try to complete this sentence. Okay, you can go forward with the case and you can admit the evidence, but I don'T know how you finish that and not violate the Fourth Amendment. Just kind of inherently follows that, of course, you either have to drop the case completely or you have to drop

0:29:22 Thomas: You'd be writing that very important constitutional right. You'd be riding it out of existence if there's not some way to enforce it.

0:29:30 Jenessa: Exactly. So are lots of rules that are like that, that it's like, is it technically literally in the Constitution? No.

0:29:38 Thomas: Word isn't spelled out. Right. Exactly. Yeah.

0:29:40 Jenessa: Does it necessarily follow from the Constitution like a single step removed? Yeah. So when they act like this, oh, this is just like normal jurisprudence has been around forever. This is not is not required of us. This of this is a textualist, originalist way to do things. And Kagan is going to complain about that quite a bit. She's going to really hold everybody's feet to the fire. I find that really interesting because this today, how are people defining this? You can go to law reviews and – you can get that one -sentence definition, But it's kind of like I said, I think people are doing a lot of heavy lifting to save the justices and they shouldn't be helping them this much.

0:30:27 Jenessa: Um, you look some law reviews that are like relatively recent, you're going to hear, uh, major questions doctrine instructs courts to presume that Congress does not delegate policy decisions of great economic and political magnitude to agencies. That's, you straightforward. Here's another one. One, Congress does not generally delegate high stakes questions to administrative agencies without being explicit about it. Again, with a clear rule, people have one and only one way that they tend to say it. One law review that says this shortly before Chevron was repealed. They said it there's really two major questions doctrines and they're a weak and strong version of restricting Chevron and the weak version is like a Chevron carve out. It says courts can exercise their independent judgment and don't have to defer to agencies for especially important questions. The strong version flatly prohibits agencies from interpreting ambiguous statutes so as to assert broad new authority over the private sector. That can't be how the justices mean it today because they have repealed Chevron. So don't want to say that this person was wrong about what the major questions doctrine is, because maybe it was that and now it's morphed.

0:31:52 Thomas: Maybe it was that for that brief five minutes. Yeah, because

0:31:55 Jenessa: Was in 2021. That law review article was written. We've got a whole bunch of different definitions in law reviews. When we get to the justices today um biden v nebraska so that was the one where biden tried to forgive student debt and the supreme court said no way um said get out of here with this major questions bullshit like are supposed to be textualists. I don't know where you find this in the text of any law. I don't Know where you Find this in The text of the Constitution. It's Requiring you to interpret the text Of the statute, the law that Congress wrote, in a way that goes outside of what they wrote. How are you a textualist? Barrett is going to address this and try to bridge the a concept and really put her in front of the firing squad for her colleagues. Nobody likes her anymore.

0:32:53 Thomas: That's yeah, that'S weird. Knowing what we know now, which we went over with Matt, that like Gorsuch was like really going after Barrett. So I'm curious. So is this kind of maybe the origin story of that conflict you're about to tell us? Oh, great.

0:33:06 Jenessa: Absolutely. This is how it happened. Is saying to her, you doing? You're not supposed to like this stuff. And Barrett says, uh -huh. I don't see it that way. I think you're absolutely right. If we were using this as a substantive canon for the rule of construction, then that would be very anti -textualist, but I don'T do it that Way. Don't worry. So what is a substantive canon? She says it's a rule of construction that advances values external to a statute. Would be something like, what's avoidance or the clear statement federalism rules, presumption against retroactivity. So essentially saying here are you making that presumption? That's not in the constitution and it's not In the law. So like, What are you you doing here such rules effectively impose a clarity tax on congress by demanding it speak unequivocally if it wants to accomplish certain ends this clear statement requirement means that the better interpretation of the statute will not necessarily prevail so she's saying like you're right that is not textualist that is bad the good news is like I'm not doing that these strong form Strong -form canons have a long historical pedigree and significant tension with textualism, blah, blah. And what people have characterized the major questions doctrine as that kind of strong -form substantive canon. And so, like, we're looking at what Congress wrote and we're making a presumption, a clarity tax that says, obviously, the more reasonable interpretation is you did delegate the power, but we're going to go against that and say you didn't. And she says no no no my friend actually what I interpret it as is just it just takes the context into account context is not found exclusively within the four corners of a statute um look at the overall uh linguistic context we look at common sense things that go without saying and you the really silly examples of like oh a statute that says it's a crime to draw blood in the streets we know that doesn't apply to a surgeon even though literally it would you don't call somebody like a bad textualist right if they didn't literally apply that statute

0:35:34 Jenessa: Shoot so

0:35:34 Thomas: Well, I don't know. It kind of depends. I mean, that is sort of the argument against textualism sometimes. You you might counter what they're doing by saying, well, what about this extremely stupid result you get if you interpret the text so literally and so forth? Then they don't get to just say, oh, well you just don't do that.

0:35:55 Jenessa: Apparently she does from her perspective we don't have to be like kind of literalist we don'T have to act like Amelia Bedelia like we can it feels like they do sometimes which is what's really frustrating um once again consider a parent who hires a babysitter she loves this example of

0:36:14 Thomas: When they want to. Yeah. Yeah. I has a hundred kids, so she hires a lot of babysitters. She's just like constantly, it's like the comedians doing airplane food bits. It's like, it'S just, you do what you know.

0:36:31 Jenessa: The credit card make sure the kids have fun obviously doesn't apply to taking the kids on a multi -day road trip like we all know that and in her head she reconciles that with both being a textualist and this is my interpretation of the major questions doctrine that it's context mm

0:36:53 Thomas: Again, in the briar sense, I could see that being a good use of this principle. Congress said, here's a credit card, go have fun. It'S unlikely that that they meant buy a house or I could see that making sense, but it just, comes down to how they're using it now and like how much further they take it they want to.

0:37:01 Jenessa: Mm-huh sure exactly right how does that mean that the epa was not in fact delegated to say that congress said you can regulate power plants and you can do what you got to do to transform them that that meant they were never allowed to shut a power plant down like somehow a major question like

0:37:38 Thomas: That one of the rulings?

0:37:39 Jenessa: The West Virginia v. EPA.

0:37:41 Thomas: Oh, right. Let So me just make sure I understand that. They said they can't ever shut down a power play sure

0:37:48 Jenessa: That when Congress delegated the authority and said, like, can regulate power plants, and there was a lot of specifics. I don't have the law right in front of me, but was something very specific about the type of power and to make, like clean energy, basically, that that that would authorize you to try to make them do clean coal but it would not authorizeyou to close a coal power plant and say repeatedly like whatever happened to that political questions thing like why are we inserting ourselves into it any more reasonable to say that we're like deciding it one way or the other like why are we deciding at one direction you know so is going to lay out what feels like a middle ground kagan will continue to assert if that's what you mean by this first of of all, I don't know why you're coming out on the other side of me. Second of all all you're saying is something that has existed forever which the statute and Congress to speak without ambiguity when they do speak with ambiguity like be cautious. Obviously when the issue is huge you should be more cautious like I don' t know but But sometimes caution should

0:38:53 Thomas: Kind of reasonable yeah sure

0:39:10 Jenessa: Go the other way. Caution should mean butting out of this big stuff. And that's where they will not do that. So, what Barrett is going to set up her position is the Biden v. Nebraska, the the debt forgiveness. Right. She has not given me really a definition. She's basically, I kind of got it here, of the major questions doctrine grows out of these same common sense principles of communication, just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter getaway. Way, we also, quote, expect Congress to speak clearly if it wishes to assign to an agency's decisions of vast economic and political significance. Kind of a definition, I guess. Now when it gets to the tariffs case, this is where it goes absolutely off the rails. And we find out not a single person has the same definition. So all these law reviews views that have been giving you a one -sentence definition, just, I don't know, throw them in the trash. Not what the courts are doing.

0:39:09 Thomas: Right oh

0:40:21 Jenessa: Get a 6 -3 majority. So you got Roberts, Gorsuch, Barrett, Kagan, Sotomayor, Jackson, but they only signed on to part of it. So part one, which is, you know, the usual, like just some facts, some basic laws. 2A1 and part 2B. Will not sign on the liberals to part 2A2 or part three, which ist just a summary paragraph. Why? Why? Because Part 2A2 is where the words major questions doctrine appear. The liberals are like, get out of here. We are going to oppose what the president is doing with tariffs, and we are going to agree with you about the reasoning that the Emergency Powers Act does not give you the authority to put on these tariffs. We're going to write a concurrence together that says we agree, but stop it with the major questions. We think you could have solved this without part 2A2. That drives me up a freaking wall. Gorsuch is going to call them out like they're some batch of assholes for, oh, you guys are opposed to the major questions doctrine, but you're signing on to a decision today that use the major questions doctrine, he literally says, today the critics proceed differently. They join a section of the principal opinion that applies the major questions doctrine. And he cites pages 14 to 20. That is section 2b, which not anywhere in those pages

0:41:55 Jenessa: Do the words major questions doctrin appear.

0:41:55 Thomas: My god really what what

0:41:59 Jenessa: Absolute liar. It clear as day they purposely sign on to a majority you want to make sure there's binding precedent here the president can't do it in this instance and don't come back to me with the same bullshit we don't want a plurality right but they're not going to sign the major questions part he's lying in that just

0:42:01 Thomas: An asshole huh doesn't have some way he justifies that because I mean that's That's a pretty bad lie.

0:42:30 Jenessa: Really bad he literally says they sign on too a section that applies the major questions doctrine and I checked I triple checked pages 14 to 20 are what he cites and that word major questions doctrin does not appear anywhere in there I

0:42:49 Thomas: He saying like it's just in so many words somehow doing that?

0:42:53 Jenessa: Saying they it applied it so

0:42:56 Thomas: So is there some way that in so Many words it applies it without actually saying it?

0:43:01 Jenessa: The three liberal justices disagree agree that it applies it I mean they

0:43:06 Thomas: Yeah. It's pretty tough to be like you hypocrites when they're directly saying, no, we don't agree with the major questions doctrine thing. Right.

0:43:14 Jenessa: Wrote a concurrence that says we didn't sign part 2a2 because that's the part where you talk about the major quest so like he could write a more honest thing that says listen you guys didn't assign on to that part because it uses the words major questions doctrine but everything else you signed on to basically is that are we just fighting and about words and like I think that would be fair

0:43:38 Thomas: It's kind of your job, but yeah. I was just fighting about words. Yeah, that's pretty much what it is.

0:43:42 Jenessa: Literally is that's what the paycheck's for um think this is extremely dishonest the way this is written the initial implication is that they oppose this until it's convenient for them And that is just simply not true.

0:44:03 Thomas: Imagine if they were hypocrites, though, like, wouldn't that be so bad that they were hypocrites? Argument, dude.

0:44:11 Jenessa: That we're in a position where we have a majority that is Roberts, Gorsuch, Barrett, Kagan, Sotomayor, parts of the majority that are not in fact a majority opinion because it only got Roberts, Gorsuch, Barrett. We have a concurrence from Just Gorsuch. A concurrence from Just Barrett where she's going to repeat almost word for word that Biden v. Nebraska stuff of like, no, no. Gentle version. This is just all about context. Concurrence from Kagan that Sotomayor and Jackson join. Concurrents from Jackson. A dissent from Thomas. And a dissent from Kavanaugh, Alito, and Thomas. Not going to pretend that I read all 7 billion pages of this because I wanted to die, but it is out of control. Kavanaugh, Alito do actually think the president should be able to do this, but they're mostly just fighting about what this rule is. So he never really gives me a definition. The majority and using this reasoning, and have long expressed reluctance to read into text extraordinary delegations of Congress's power. Hour that's a thing that's always been true that's got nothing to do with this new thing we have described several of these cases as major questions cases and he just cites the west virginia and that does use that word and the brown case that does not use that Word in each the government claimed broad expansive power on an uncertain statutory basis and in each the the statutory text might, as a matter of definitional possibilities, have been read to delegate the asserted power, but context counseled skepticism.

0:45:57 Jenessa: That's not a definition. That is not a rule.

0:46:01 Thomas: I think what might be going on with him and this speculating. Might be doing the smart thing because he often is like often Roberts has been doing the more subtly evil thing until the court got so right wing that didn't matter. And like he was pretty much in the minority and literally so in some cases. But I think what he's trying to do is, hey, guys, we all have this good thing going where nobody named this thing. We we referred to him as major questions, but we didn'T try to say, like, here's this doctrine. Doctrine, we didn't, you know, we just got to use it when we wanted to, and, you know, he's just saying, like, yeah, there's some cases that have this label, and that, it seems to me, it could be wrong, let me know what you think, that he's kind of maybe just trying to preserve that flexibility in it.

0:46:49 Jenessa: I be tempted to say that, but he wrote West Virginia v. EPA, pa which is the one that first said those words so the one who wrote that opinion which is the first time ever that major questions doctrine appears and that like everybody cites to as the major questions doctrine and like created the whole thing and defended it so

0:46:58 Thomas: He wrote those words in it, or but, like what, didn't have a definition from that, right?

0:47:19 Jenessa: True. That is absolutely true. The vague.

0:47:20 Thomas: He's keeping it like the the flexibility yeah exactly that's kind of what I was thinking yeah

0:47:26 Jenessa: Which that it's vague, but I suppose the only thing we hate more is an actual definition that sucks.

0:47:34 Thomas: That's why it has to be vague because any definition would be so blatantly not you from the constitution really yeah

0:47:35 Jenessa: So, yeah, I guess so. Gorsuch has no problem with it. He lays into everybody for every definition you guys came up with is dumb and I'm the best. And so his is, the Constitution lodges the nation's lawmaking powers in Congress alone, and the major questions doctrine safeguards that assignment against executive encroachment. Under the doctrine's terms, the president must identify clear statutory authority for the extraordinary delegated power he claims. Relatively clear.

0:48:18 Thomas: Gets to say that like you get to just decide that it's a major question think that's the thing is like a lot of times too in these definitions you're giving they might describe and define what the major questions doctrine is but they don't define what a major question is they just repeat the language it's one thing to be like yeah it's here's what it is it's whenever there's a major question here's and then they distract you with a bunch of here'swhatwedo with a major question without ever having answered what I mean how would I define that like how would would I actually define what a major question is? I've heard a few things you've said. Well, economic, major economic, blah, blah. But like, where's that coming from? You're just making that up. What are the thresholds on that? One thing I was going to ask you too, and I don't know if you have any of these available, there have been times to my memory where also it goes the other way, where things that the right would have found to be major questions, if they were things they disagreed with, all of a sudden they're like, Like, no, that's fine, because they agreed with it. Is there any of those examples that you had offhand where it's kind of the other way, where I feel like the dissent maybe called that out once, but I'm not specifically able to remember which case that might have been.

0:49:29 Jenessa: Got distracted with 400 law review articles. I meant to grab those. I do feel that way generally that there's so many things that they let Trump get away with that I have just been appalled at.

0:49:42 Thomas: Oh, I remember. Decided that Trump can dismantle the Department of Education.

0:49:47 Jenessa: How?

0:49:47 Thomas: You would think that would be a major question. Like, have the authority to do that? That? Do did they stop any part of that? I feel like they did something, but it's pretty much gone, right? Like,

0:49:47 Jenessa: How I I they really didn't rein him in very much on any of that. They kind of implied like Congress said you have to make a Department of Education but they didn't say that you have to have any staff or like come

0:50:09 Thomas: You have to have any people in the building? It's like, yeah, okay. So that's not a major question? Wouldn't the education of the country and an entire department is not a a major question.

0:50:15 Jenessa: On like the thing that's really messed up is like so if he wants to claim the power to regulate or to do stuff or is major but if he wants to claim power to not do what congress ordered him to do somehow that's not major like

0:50:40 Thomas: Only common ingredient is conservatism versus, you know, liberal values. That's all it is.

0:50:46 Jenessa: Never anywhere and nobody says it out loud it's not in any definition Kavanaugh in that dissent gave us those four wibbly wobbly factors like the EPA really that EPA regulation is what actually created the major questions doctrine this is the thing I couldn't find a single law review article that actually identified this that west virginia v epa is the first place that the words major questions doctrine appear in a court case but they explicitly say that the epa found themselves in violation of the major questions doctrine, that regulatory random comment that is like, I can't find who authored it, that is where somebody first said, citing to the Kavanaugh dissent that called it the major rule doctrine, that, well, we don't really have a bright line rule, but reading Kavanaagh's dissent, here are are some factors that we think matter that's what created this it it came from that nonsense so a dc circuit descent and then the epa and really the real thing is the epi interpreting that is what gave me a factor test that nobody appears to be using except sometimes they do occasionally they're like these are the factors that matter and I'm like that's funny because because you don't seem to apply that.

0:51:42 Thomas: Unreal. DC sea circuit descent. Cool. Oh, boy. Yeah,

0:52:21 Jenessa: You said, it gives us a procedural definition of what to do, but it does not tell us when to do it. Barrett, once again, the extent that Justice Gorsuche attacks the view that common sense alone can explain all our major questions, decisions, he takes down a straw man. I have never espoused that view, And then goes on to just explain common sense and like basic statutory construction. Kagan goes through and, you know, obviously Kagan and Jackson are going to say, like, you don't need that. We have rules for this. Like just to be clear, it's not like this major questions doctrine is filling a gap that like we didn't know what to do before. We already have rules für das. This. Thomas in dissent, his definition, in some cases, the court has used the major questions doctrine as a canon of statutory interpretation because delegations of major powers are unlikely to be subtle. Other cases, The Court has used it to avoid what would have been originally understood as an unconstitutional delegation of legislative power. Definitely if they were We're not allowed to delegate that power. We don't need to ask if it was a major question or not. Like, minor it may be. You're

0:53:35 Jenessa: Not—allowed, you're not aloud.

0:53:35 Thomas: That's a good point.

0:53:38 Jenessa: Kavanaugh's dissent, that important canon requires, quote, clear congressional authorization, end quote, for an executive action of major economic and political significance, particularly when the executive exercises a, quote. Unheralded power. And that's going back to that Brown decision that never used the words major questions doctrine and cites to Breyer who dissented. Single one of them has a different definition of what it is. Yet even the dissents agree it's an important rule. They're just saying it doesn't apply here. Kavanaugh says it doesn'T apply here, Thomas says even if you you apply it it's fine and can this be a doctrine if nobody even knows what it is just no to all of this so I hope that is helpful thing that I was really shocked to uncover that I wish people talked about more is the extent to which this is just astroturfing, that Brown decision that everybody's citing to is like, oh, this has been around for 25 years. That case was rarely cited, especially for this concept of major questions doctrine. People didn't start citing it until about 2015 when law review articles started using

0:54:23 Thomas: I agree in the end just no yeah yep clear as mud yeah yeah yeah

0:55:06 Jenessa: The words major questions, doctrine written by conservatives like the digital age people are able to have direct contact with judges or indirect and implant these ideas and then somebody appointed by the president at the epa is writing federalist society bullshit and citing to a kavanaugh dissent on a circuit court, and now it's the law. That's how this happened. This did not happen organically. This is not the judges decided we need a new rule and wrote a rule.

0:55:41 Thomas: Also not the founding fathers or anything yeah it

0:55:45 Jenessa: It does not come from the text. It does not follow inevitably from the text, we already had rules for this that are are working. Nonsense. I don't know. Give me a record scratch noise. We're back. Major questions.

0:55:51 Thomas: Is made up well

0:56:03 Clip: .

0:56:05 Thomas: Was checking Jenessa's work and was like, you You totally need to correct something. No, I'm just kidding.

0:56:11 Jenessa: Yeah. It's totally me. No, the real problem is I can never stop myself. So I was writing up my sources for the show notes and I found even more for you. I just could not help myself on this. You remember when I was saying I was going through all the definitions people give, including law review articles, and R. Sunstein heard those definitions as these are exceptions to the Chevron doctrine. And I was like, well, I don't want to tell them they're wrong because this word has changed so much, but it can't be the definition now because Chevron's been overturned and we're still talking about the major questions doctrine.

0:56:52 Jenessa: So Sunstein coined major questions, doctrine. Going back and I'm putting these quotes of like everybody's definitions in in chronological order of who said it first. Went through my outline and I looked at other people's outlines. The Wikipedia article said that the first person ever to say it in the legal scholarship was Abigail Moncrieff, who 2008. And they were like, Like,

0:56:56 Thomas: Really sounds like from the 1600s yeah

0:57:27 Jenessa: This is when it entered legal scholarship. And that's also incorrect. Everybody, somebody go fix the Wikipedia. I'm too lazy. Reincarnating the major questions exception to Chevron deference as a doctrine of non-interference and long title. You go read that article that is supposedly the first time in legal scholarship that it it was like really talked about, very explicitly cites and says, Cass Sunstein 2006 article is where this was coined, is where I'm getting it from.

0:58:00 Jenessa: And if you go read that article, this is crystal clear. Quote, in a separate trilogy of cases, which I will call the quote major question unquote trilogy. Where it came from.

0:58:00 Thomas: Interesting it which I will call drum roll please please, yeah, so saith I, Cass the Man Sunstein,

0:58:18 Jenessa: Henceforth, it shall be named major questions. And the title of this article is Chevron Step Zero, talking about how the Chevron doctrine really is like a two -step process, but this is like a special pleading exemption to Chevron, a step zero. So this person that everybody says is the first person to talk about major questions, Abigail Moncrief, says, no, no my friend, Kassar Sunstein is the First Person to Say It in 2006. Abigail Monkrief does not cite to Breyer's 1986, that time he happened to say the words major and questions next to each other, much like so many of us have once in our lives.

0:59:06 Jenessa: The real coining of this was in 2006 by Kassir Sunstein in the context of Chevron. Like an alternate timeline for the origin of what this thing is. And then everybody else is like, definitely don't cite to that or else it won't make sense what I'm saying today. We have to cite this other case, the Brown and Williamson tobacco case that never uses the words major or question or anything and then cite them citing Breyer who said major questions in a legal paper once not meaning that there we go done

0:59:19 Thomas: That's weird, huh, yeah is weird too because Cass Sunstein was a Obama guy, it was like a, so if they do, they're doing the thing that I called out before where they find like the, you know, the Biden rule of the left left -wing it's like I think that still works with with him is it something about the way he was using it that would make it that they don't want that to be it or is it just some random quirk

1:00:03 Jenessa: Oh certainly, so he was very critical of like what is appearing to happen when they want to get around chevron is almost like a step zero we never apply chevon in this kind of exception and it's a huge problem and I hate it I hate abigail moncrieff cites it and says actually that's awesome what a good thing they've been doing and that's the person who gets credit on the wikipedia and gets credit in review articles as like they called it the major questions exception and it's like no they cite someone else as origin it so Timeline identified.

1:00:41 Thomas: Speaking I was thinking about the thing you said about if it's an exception to Chevron can it no longer exist when Chevron's gone I actually think the answer is it could still exist um just speaking logically and maybe that won't map onto it but especially if they're saying it's a layer ahead of it so it's like you're it just again speaking logically if you're um to categorize things or if you'RE if you 'Re doing a series of steps some sort of algorithm or whatever and your first step is like okay is it one of these major questions such that we we don'T even go to the agency at all, then go, you KNOW, flowchart, like, go left or whatever. If it's not, flow chart, go right, then we'll see, okay, do we apply Chevron deference? I think that actually could still exist. I'm not trying to score points for the bad guys or anything, but it's sort of like, it almost exists, but you almost don't need a name for it in the same way or something? I'm trying to think. Let's see. If idea was, if it's a major question, you're the agency didn't... Well, actually, nevermind. I just went to try to use what the definition is and I

1:01:48 Thomas: Realized the whole point is we don't actually know what the definition is. There's no really agreed upon one. Yeah.

1:01:53 Jenessa: Well, yeah. That's the problem. General rule was when an agency shows up at your door with one interpretation of the law and somebody's complaining they don't think that's the law.

1:02:03 Thomas: And ambiguous, right?

1:02:07 Jenessa: It's ambiguous. So and Chevron gave gave us a very specific rule statement for how to do that.

1:02:08 Thomas: Then you defer Right.

1:02:16 Jenessa: That's really important when we have a rule statement is you'll see it quoted the exact same way in every single case. So it is very telling already that I can't find anybody say it the same way. It was like, well, in that situation, we do this and, oh, I'm adding an exception that we won't even bother with that analysis if x is true okay at least that could be a rule statement um if that analysis no longer exists of like well major questions go to the left fork and non-major questions go to the right fork well now without chevron just everything goes to the left fork anyway so just not even a fork so

1:02:54 Thomas: Yes, I think you're right. I think it would be the only way it would still work. And this is bad is if you're applying it in more situations than Chevron was applied. So Yeah, exactly. If the major questions doctrine and I feel like it's morphed to this is even when Congress pretty much says it's going to give the agency the right to do something, the Supreme Court is almost stepping in being like, nah, you know, like if it's going even further. But yeah, I see what you're saying. It's a great example. You know, Chevron, I can almost quote what Chevron was, even though it's dead, it's a rule that is consistent is pretty easily stated. That's almost a, even a better example, just looking at that than the kind of the search and seizure one, I think, or what it was the one you used. It's, it'S a, it' s an even better example, I thing.

1:03:05 Jenessa: You made it even broader yeah yeah yeah oh talked about plain sight and fruit of the tree yeah

1:03:46 Thomas: Plain sight. That's right. Yeah, yeah. It's almost an even better example than plain sight. Cause it's it's more in the category and It's exactly what you said. I mean, your point's exactly right it's like that's a simple rule you know pretty much know how to apply it yeah there might be differences in how people interpret and apply it a little bit but like you know what you're doing yeah it's the major questions doctrine they just morphed it into existence they summoned it they made a summoning circle of assholes of conservatives and oil companies and you know a bunch of other originalists and yeah and they summoned an obnoxious rule into existence distance.

1:04:00 Jenessa: Edge cases yeah yeah yeah yeah mainly just thought it was very important that uh get uh their credit back when I subtly implied that maybe that definition didn't make any sense. They coined it. So definitely language evolves over time, but I definitely do not want to imply they are wrong about the definition of the word they made up. So did not make that up in 1986. Sunstein made that up in 2006 to refer to a completely different concept from what we are talking about today. And is defining it as this step zero Chevron thing, which go back and read that 2006 paper, it is not the same thing.

1:04:57 Thomas: A different concept? Huh.

1:05:06 Jenessa: It to this idea of great economic and political significance. And like, it's not.

1:05:13 Thomas: Interesting.

1:05:14 Jenessa: Much more detached from I would say it's not recognizable today, 20 years later, as the same thing. And this other person Abigail Moncrief I a paper that I disagree with but you know it's a it's great paper and all but is getting credit in the Wikipedia as like the originator and very clearly cites I am not the originator of this idea well

1:05:36 Thomas: If that's different, I mean, then could you make the argument that that's the reason it's not cited as the definition? Like she did cite to it. Oh okay. I thought she cited to the briar thing I mean I got you yeah

1:05:41 Jenessa: Abigail Moncrieff is citing directly to this as like it's she's the second one yes so no no that's my whole point is when And she says, hey, when I'm writing a law review article where I write that this thing called major questions exception is a rule, I didn't pull this out of my ass. I got this from Sunstein two years ago. Not I gotthis from Breyer in 1986, and then 20 years later, I'm reviving it and calling it a doctrine. No, this other person came up with a cool idea that I want to explore, totally disagreeing.

1:06:20 Thomas: To make sure I have it is the confusion initially that like oh well I'm gonna look at this briar think because that's older so I'm gonna look it like the first thing in the chronology and then you realize like wait no that doesn't it doesn't even really use the term this thing is actually way more relevant of them thing

1:06:36 Jenessa: Essentially you would you would I would think of it like this there's two timelines so thing that really happened is sunstein writes this article in 2006 and says hey there's a series of cases where I'm noticing it's almost like there's a step zero to chevron where they're not doing chevon anymore oh my god bad bad bad red alert moncrief in 2008 cites that paper And says, hey, I agree that they're doing that and I like it. Good choice.

1:06:41 Thomas: Universes uh this but unironically kind of thing so

1:07:14 Jenessa: Legal scholarship starts to develop and use that phrase major questions like citing to Moncrieff, citing to Sunstein. It's all just little academics talking to each other. This has not shown up in a court case. Then what's going to happen is when the conservatives want to talk about this, here's what they will do. Here we are talking about Kavanaugh's dissent in 2017. He's going to site a case, Brown and Williamson Tobacco Co. In 2000, which never uses the word, but oh, it's totally the origin of the concept. And cite to Breyer's 1986 law review where the words major in questions were next to each other and that's where it all came from and they will kind of skip over the actual 2006 origin yes

1:08:07 Thomas: They're trying to draw like a longer timeline than it is to in order to legitimize it more do you think or

1:08:14 Jenessa: And they're trying to attach it to concepts from the Brown and Williamson case that is more more favorable to the definition they want to use today that to, because like Chevron is about agencies. They're using it in Biden v. Nebraska, which was an executive order. Well, it shouldn't have anything to do with that, right? So they're trying to make major questions all about like them inserting themselves into congressional delegation of power. Um one is where did the word come from like where did this how did this phrase enter the legal lexicon sunstein

1:08:25 Thomas: Gotcha okay huh interesting and and oh that one yeah I gotcha okay

1:08:57 Jenessa: Sunstein in 2006 said it and legal scholars started talking about it and then some conservative thought it would test well with audiences and the fake timeline we have now is somebody found Breyer say those words in 86 and a timeline of cases that are favorable to telling the President and agencies they can't do these things and now we're going to try to kind of keep using the language that came from timeline A and yeah, that's really what's going on here. So

1:09:29 Thomas: Gonna retcon it to that yeah all right interesting you got to the bottom of it huh

1:09:36 Jenessa: I finally got to the bottom of it.

1:09:37 Thomas: It's funny how hard that like imagine if you were doing the same thing but for the you know chevron deference now let's get to the bottom of this twisted tale it's like the decoder ring podcast or whatever how did this random doll become such a fad in the 90s or or whatever. It's like, that shouldn't be what you have to do with jurisprudence. It should be like, yeah, it's this case where called the thing that is the thing we're looking at. Chevron.

1:10:01 Jenessa: Where, where did your Miranda rights come from?

1:10:03 Thomas: It should come from like major questions V Ohio or something, you know, like, it was actually in the military, major questions. That's the thing. He was, it's like the ground control to major questions joke I made before, you knows that that kind of thing

1:10:16 Jenessa: Yeah. It should not be this big a mystery. Oh my God. Yeah, Hooray working on show notes because even more details came out.

1:10:29 Thomas: That I I think you firmly debunked that bullshit rule and, uh, hopefully they'll, you know, they'll get rid of it. They'll listen. They're listeners. I know. Now, uh. Thanks for bringing some sanity to a very insane thing. Um. Appreciate the deep dive. Learned a lot.

1:10:46 Jenessa: Yeah. Did too.

1:10:48 Thomas: All right, well, thanks so much and, uh, see you again real soon.

1:10:52 Jenessa: Good.

1:10:57 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon .com slash law. Contact us through Patreon or openarguments at gmail .com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.

1:11:29 Jenessa: We don't have to act like Amelia Bedelia like

1:11:35 Thomas: Suck it, libs.