4 ms·

this fedsoc lawyer says that the radical changes made by the fedsoc justices aren't such a big deal. After all, agency discretion was already limited by the maj

by jhp123 2y ago

this fedsoc lawyer says that the radical changes made by the fedsoc justices aren't such a big deal. After all, agency discretion was already limited by the major questions doctrine. He doesn't mention the same court made up the major questions doctrine all of 2 years ago! They really think we're idiots who can't put two and two together.

rayiner 2y ago
Major questions doctrine was first articulated in 2000, but its inherent in the legal fiction of Chevron. The premise of Chevron is that ambiguous statutory language indicates that Congress intended to give agencies gap-filling power. But the obvious corollary to that is Congress probably didn’t intend to delegate the power to make a huge change in regulatory policy in ambiguous language, without saying so explicitly.
- jhp123 2y ago
  MQD comes from the 2022 EPA decision. It "announces the arrival of the "major questions doctrine"", that is a direct quote from the decision. None of this power grab is obvious at all or they would be unanimous decisions.
  - tptacek 2y ago
    The underlying judicial phenomenon, which seems to have involved different names (all including "major questions"), appears to long precede 2022. https://harvardlawreview.org/print/vol-129/major-question-objections/ https://harvardlawreview.org/print/vol-129/major-question-ob...
  - rayiner 2y ago
    MQD was applied in FDA v. Brown & Williamson in 2000. That decision cited a 1986 law review article by future Justice Breyer: Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) ("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").
    - jhp123 2y ago
      as tptacek's link makes clear, "major questions" was a muddied and rarely-cited corner of the law in 2016. The "major questions doctrine" per se made its appearance in the 2022 decision and was in fact the main purpose of writing a decision banning a rule that had never taken effect and was now obsolete. When Carr (echoing the conservative majority in Loper) claims that Chevron was all but dead already due to MQD, that certainly wasn't the case before 2022. So your pedantic correction is missing the point even if it were textually accurate.

by jhp123 2y ago

rayiner 2y ago

Major questions doctrine was first articulated in 2000, but its inherent in the legal fiction of Chevron. The premise of Chevron is that ambiguous statutory language indicates that Congress intended to give agencies gap-filling power. But the obvious corollary to that is Congress probably didn’t intend to delegate the power to make a huge change in regulatory policy in ambiguous language, without saying so explicitly.

jhp123 2y ago
MQD comes from the 2022 EPA decision. It "announces the arrival of the "major questions doctrine"", that is a direct quote from the decision. None of this power grab is obvious at all or they would be unanimous decisions.
- tptacek 2y ago
  The underlying judicial phenomenon, which seems to have involved different names (all including "major questions"), appears to long precede 2022. https://harvardlawreview.org/print/vol-129/major-question-objections/ https://harvardlawreview.org/print/vol-129/major-question-ob...
- rayiner 2y ago
  MQD was applied in FDA v. Brown & Williamson in 2000. That decision cited a 1986 law review article by future Justice Breyer: Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) ("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").
  - jhp123 2y ago
    as tptacek's link makes clear, "major questions" was a muddied and rarely-cited corner of the law in 2016. The "major questions doctrine" per se made its appearance in the 2022 decision and was in fact the main purpose of writing a decision banning a rule that had never taken effect and was now obsolete. When Carr (echoing the conservative majority in Loper) claims that Chevron was all but dead already due to MQD, that certainly wasn't the case before 2022. So your pedantic correction is missing the point even if it were textually accurate.