Picking up where they left off, Gwen and Marc turn to the two competing versions of the Major Questions Doctrine: the weak, interpretive version and the strong version that demands near-microscopic specificity. And to show how these versions operate in real life, they walk straight into the blockbuster 2023 case Biden v. Nebraska, where the Supreme Court struck down the administration’s student-loan forgiveness plan.
The statutory text seemed generous: the Secretary could “waive or modify” student-loan provisions during a national emergency. COVID was a national emergency. Waive means eliminate. Modify means change. Yet the Court said that forgiving $430 billion in loans for 43 million borrowers was simply too major — and that even broad, literal statutory text wasn’t clear enough. Marc both appreciate Roberts’s now-famous line comparing the government’s interpretation of “modify” to the way the French Revolution "modified" the country's nobility.
They use this to show the full force of the strong version of the doctrine: for truly significant decisions, ordinary delegation isn’t enough. Courts require explicit authorization, tailored to the precise scenario an agency faces — a level of specificity Congress almost never provides. Justice Kagan’s dissent raises the alarm: the doctrine is becoming a “get-out-of-text-free card,” enabling courts to invalidate policies they dislike even when Congress’s language is unambiguously broad.
The episode then zooms out to the real-world consequences: agencies are becoming more cautious, breaking big rules into smaller ones, searching for hyper-specific statutory hooks, and gaming the system simply to survive judicial review. Gwen and Marc map out how this rising skepticism interacts with the Court’s broader project — reining in agencies through major questions, Chevron, and structural challenges all at once.
Takeaway: The stronger the doctrine gets, the harder it becomes for agencies to act — even when Congress wrote broad authority on purpose. The Court says Congress must speak clearly on big questions. But in practice, the demand for “extraordinary clarity” risks paralyzing modern governance.
00:00:14 --> 00:00:17 Hello, and welcome to Administrative Remedies,
00:00:17 --> 00:00:19 because you can't fix what you don't understand.
00:00:19 --> 00:00:21 Brought to you in part by the University of Tulsa
00:00:21 --> 00:00:24 College of Law. I'm Gwendolyn Savitz, an associate
00:00:24 --> 00:00:26 professor here at TU and the associate dean of
00:00:26 --> 00:00:28 research and intellectual life. And I'm Mark
00:00:28 --> 00:00:31 Rourke. I'm the dean of the College of Law. We'll
00:00:31 --> 00:00:33 be breaking down complex doctrines with real
00:00:33 --> 00:00:35 -life analogies and examples to demystify the
00:00:35 --> 00:00:37 world of administrative law for everyone trying
00:00:37 --> 00:00:39 to understand how government actually works.
00:00:40 --> 00:00:41 Agencies are the main way the federal government
00:00:41 --> 00:00:44 gets things done. It's not through Congress for
00:00:44 --> 00:00:46 reasons we'll be addressing over the course of
00:00:46 --> 00:00:51 this series. Welcome to Administrative Remedies.
00:00:52 --> 00:00:54 Last time we were talking about the major questions
00:00:54 --> 00:00:57 doctrine and about how it comes in two flavors.
00:00:57 --> 00:01:00 The weak version, which is really just statutory
00:01:00 --> 00:01:04 interpretation that says if it's unclear whether
00:01:04 --> 00:01:06 or not the statute would include this, we'll
00:01:06 --> 00:01:09 assume it doesn't. And the strong version, which
00:01:09 --> 00:01:11 says even if it really does seem like the statute
00:01:11 --> 00:01:14 includes this, will still say it doesn't unless
00:01:14 --> 00:01:16 Congress has functionally said the agency could
00:01:16 --> 00:01:19 do that exact thing. So let's start with a student
00:01:19 --> 00:01:24 loan case. Fantastic. Biden v. Nebraska. So in
00:01:24 --> 00:01:26 2023, the Biden administration tried to cancel
00:01:26 --> 00:01:29 up to $20 in student debt using the HEROES
00:01:29 --> 00:01:33 Act of 2003. What is the HEROES Act? It was passed
00:01:33 --> 00:01:35 after 9 -11 and designed to deal with national
00:01:35 --> 00:01:56 emergencies. Here's the key provision. So during
00:01:56 --> 00:01:59 COVID, which was declared a national emergency,
00:02:00 --> 00:02:02 The secretary said, I am using my power under
00:02:02 --> 00:02:05 this act to forgive up to $20 per borrower
00:02:05 --> 00:02:08 because the pandemic was an economic catastrophe.
00:02:09 --> 00:02:12 Wave or modify? I mean, wave means to eliminate,
00:02:12 --> 00:02:15 right? So that seems pretty clear. Yes. That's
00:02:15 --> 00:02:17 why I would say the court's applying the strong
00:02:17 --> 00:02:19 version here. Here's what Robert said about the
00:02:19 --> 00:02:22 economic significance. It would cancel roughly
00:02:22 --> 00:02:25 $430 billion of federal student loan balances,
00:02:25 --> 00:02:28 completely erasing the debts of 20 million borrowers
00:02:28 --> 00:02:32 and lowering the median amount owed by the other
00:02:32 --> 00:02:38 23 million from $29 to $13 . $430 billion
00:02:38 --> 00:02:41 affecting 43 million borrowers? That's major
00:02:41 --> 00:02:45 by any measure. But here's where we can really
00:02:45 --> 00:02:46 see that Roberts is using the strong version
00:02:46 --> 00:02:50 of the doctrine. He says the secretary has never
00:02:50 --> 00:02:53 previously claimed powers of this magnitude under
00:02:53 --> 00:02:56 the HEROES Act. And then he says that even though
00:02:56 --> 00:02:59 WAVE literally means eliminate, that is not enough
00:02:59 --> 00:03:02 to grant the secretary the authority to do this.
00:03:02 --> 00:03:05 Here's his version of modify. So modify carries
00:03:05 --> 00:03:09 a connotation of increment or limitation and
00:03:09 --> 00:03:12 must be read to mean to change moderately or
00:03:12 --> 00:03:16 in minor fashion. And then he says the secretary's
00:03:16 --> 00:03:19 new modifications of these provisions were not
00:03:19 --> 00:03:22 moderate or minor. Instead, they created a novel
00:03:22 --> 00:03:24 and fundamentally different loan forgiveness
00:03:24 --> 00:03:27 program. The secretary's plan has modified the
00:03:27 --> 00:03:30 SAIA provisions only in the same sense that the
00:03:30 --> 00:03:33 French Revolution modified the status of the
00:03:33 --> 00:03:36 French nobility. It has abolished them and supplanted
00:03:36 --> 00:03:39 them with a new regime entirely. That really
00:03:39 --> 00:03:43 is a good quote. Kudos to you, John. Yeah. He's
00:03:43 --> 00:03:45 essentially saying. For a major question, we're
00:03:45 --> 00:03:48 going to need more than statutory language that
00:03:48 --> 00:03:51 would very clearly seem to cover the action.
00:03:51 --> 00:03:54 We need explicit authorization saying, in this
00:03:54 --> 00:03:57 case, you can forgive hundreds of billions of
00:03:57 --> 00:03:59 dollars in student loans. That seems like an
00:03:59 --> 00:04:02 impossible standard, though. Congress never writes
00:04:02 --> 00:04:05 laws that specifically. Yes, exactly. So this
00:04:05 --> 00:04:07 is what Kagan said in the dissent. Can you read
00:04:07 --> 00:04:10 this part? The majority picks the statute apart
00:04:10 --> 00:04:13 piece by piece in an attempt to escape the meaning
00:04:13 --> 00:04:16 of the whole. But the hold, the expansive delegation,
00:04:16 --> 00:04:19 is so apparent that the majority has no choice
00:04:19 --> 00:04:21 but to justify its holding on extra statutory
00:04:21 --> 00:04:25 grounds. So the majority resorts, as is becoming
00:04:25 --> 00:04:28 the norm, to its so -called major questions doctrine.
00:04:28 --> 00:04:31 The statute, read as written, gives the secretary
00:04:31 --> 00:04:35 broad authority to relieve a national emergency's
00:04:35 --> 00:04:38 effect on borrowers' ability to repay their student
00:04:38 --> 00:04:41 loans. The secretary did no more than use that
00:04:41 --> 00:04:43 lawfully delegated authority. So the majority
00:04:43 --> 00:04:48 applies a rule specifically crafted to kill significant
00:04:48 --> 00:04:51 regulatory action by requiring Congress to delegate
00:04:51 --> 00:04:55 not just clearly, but also micro specifically.
00:04:56 --> 00:05:00 She's saying it is unambiguous that what the
00:05:00 --> 00:05:02 secretary can do falls within the act. He is
00:05:02 --> 00:05:05 waiving the loans of some people. He is modifying
00:05:05 --> 00:05:09 the loans of other people. And yet the majority
00:05:09 --> 00:05:11 still says that's not good enough. What is the
00:05:11 --> 00:05:14 constitutional theory behind all this? Why does
00:05:14 --> 00:05:17 the court think it can require extra clear authorization
00:05:17 --> 00:05:20 for certain questions? So the court says this
00:05:20 --> 00:05:23 is part of the separation of powers. And the
00:05:23 --> 00:05:26 idea here is that certain decisions are so significant,
00:05:27 --> 00:05:29 they must be made by Congress, the elected representatives,
00:05:30 --> 00:05:33 not by agencies. Here's what he said about this
00:05:33 --> 00:05:36 in West Virginia. Agencies have only those powers
00:05:36 --> 00:05:39 given to them by Congress. And enabling legislation
00:05:39 --> 00:05:42 is generally not an open book to which the agency
00:05:42 --> 00:05:45 may add pages and change the plotline. We presume
00:05:45 --> 00:05:48 that Congress intends to make major policy decisions
00:05:48 --> 00:05:51 itself, not leave those decisions to agencies.
00:05:51 --> 00:05:54 So this is related to the non -delegation doctrine
00:05:54 --> 00:05:57 that we talked about in Episode 3. Congress can't
00:05:57 --> 00:05:59 just hand over its legislative powers to agencies.
00:05:59 --> 00:06:02 So for really major decisions, the court is saying,
00:06:02 --> 00:06:04 we need to be extra sure Congress actually meant
00:06:04 --> 00:06:07 to delegate that authority. But doesn't that
00:06:07 --> 00:06:09 give the court huge power to decide what counts
00:06:09 --> 00:06:13 as major? It does. That's the criticism. The
00:06:13 --> 00:06:15 court has essentially created a constitutional
00:06:15 --> 00:06:18 clear statement rule without any textual basis
00:06:18 --> 00:06:21 in the Constitution. And Kagan really hammered
00:06:21 --> 00:06:24 this part home in Biden v. Nebraska. Here's this
00:06:24 --> 00:06:26 section. In this case, the secretary responsible
00:06:26 --> 00:06:30 for carrying out the student loan programs forgave
00:06:30 --> 00:06:32 student loans in a national emergency under the
00:06:32 --> 00:06:34 core provision of a recently enacted statute.
00:06:35 --> 00:06:37 empowering him to provide student loan relief
00:06:37 --> 00:06:40 in national emergencies. Today's decision thus
00:06:40 --> 00:06:43 moves the goalposts for triggering the major
00:06:43 --> 00:06:46 questions doctrine. Who knows, by next year,
00:06:46 --> 00:06:48 the Secretary of Human Health and Services may
00:06:48 --> 00:06:50 be found unable to implement the Medicare program
00:06:50 --> 00:06:54 under a broad delegation because his actions
00:06:54 --> 00:06:57 enormous economic impact. So she's saying the
00:06:57 --> 00:06:59 court really is just striking down policies it
00:06:59 --> 00:07:01 doesn't like and calling them major questions
00:07:01 --> 00:07:04 doctrine without any sort of consistent standard.
00:07:05 --> 00:07:08 OK, but isn't there something to the idea that
00:07:08 --> 00:07:10 really big decisions should be made by Congress,
00:07:10 --> 00:07:13 not agencies? Sure. There's definitely an appeal
00:07:13 --> 00:07:16 to that argument. If we're restructuring the
00:07:16 --> 00:07:18 entire energy sector, we're forgiving hundreds
00:07:18 --> 00:07:20 of billions of dollars in debt. You could say
00:07:20 --> 00:07:22 elected representatives should make that call.
00:07:22 --> 00:07:25 That does seem more democratic. It does. But
00:07:25 --> 00:07:28 here's the problem. Congress often can't or won't
00:07:28 --> 00:07:32 be specific. And sometimes Congress is intentionally
00:07:32 --> 00:07:34 using deliberately broad language because it
00:07:34 --> 00:07:36 wants to give agencies flexibility to address
00:07:36 --> 00:07:39 problems as they evolve. Kagan talks about this
00:07:39 --> 00:07:42 part too. Congress delegates to agencies often
00:07:42 --> 00:07:45 and broadly, and it usually does so for sound
00:07:45 --> 00:07:48 reasons. Because agencies have expertise, Congress
00:07:48 --> 00:07:51 lacks. Because times and circumstances change
00:07:51 --> 00:07:54 and agencies are better able to keep up and respond.
00:07:54 --> 00:07:57 Because Congress knows that if it had to do everything,
00:07:58 --> 00:08:01 many desirable and even necessary things wouldn't
00:08:01 --> 00:08:05 get done. So then she gets really specific about
00:08:05 --> 00:08:07 what the majority would have required them to
00:08:07 --> 00:08:10 do here. The doctrine forces Congress to delegate
00:08:10 --> 00:08:13 in highly specific terms respecting, say, loan
00:08:13 --> 00:08:15 forgiveness of certain amounts of borrowers,
00:08:15 --> 00:08:17 of certain incomes during pandemics, of certain
00:08:17 --> 00:08:20 magnitudes. Of course, Congress sometimes delegates
00:08:20 --> 00:08:24 in that way, but also not often. Because if Congress
00:08:24 --> 00:08:26 authorizes loan forgiveness, then what of loan
00:08:26 --> 00:08:29 forbearance? And what of the other 10 or 20 or
00:08:29 --> 00:08:31 50 knowable and unknowable things the secretary
00:08:31 --> 00:08:35 could do? And should the measure taken, whether
00:08:35 --> 00:08:37 forgiveness or forbearance or anything else,
00:08:37 --> 00:08:40 always be of the same size or go to the same
00:08:40 --> 00:08:42 classes of people, doesn't it depend on the nature
00:08:42 --> 00:08:45 and scope of the pandemic and on a host of other
00:08:45 --> 00:08:48 foreseeable and unforeseeable factors? You can
00:08:48 --> 00:08:50 see the problem. It's hard to identify and enumerate
00:08:50 --> 00:08:53 every possible application of a statute to every
00:08:53 --> 00:08:56 possible condition years in the future. So again,
00:08:56 --> 00:08:59 Congress delegates broadly, except that this
00:08:59 --> 00:09:01 court now won't let it reap the benefits of that
00:09:01 --> 00:09:05 choice. So we end up paralyzed. Agencies can
00:09:05 --> 00:09:08 act without explicit permission, and Congress
00:09:08 --> 00:09:11 often won't give that permission. Right. In this
00:09:11 --> 00:09:14 case in particular, it was clear that Congress
00:09:14 --> 00:09:17 was acting after a major shock to the U .S. to
00:09:17 --> 00:09:20 try and give the secretary power to act when
00:09:20 --> 00:09:23 there were other major shocks to the U .S. But
00:09:23 --> 00:09:25 the court says, well, they didn't foresee this
00:09:25 --> 00:09:28 kind of major shock. So it doesn't count. This
00:09:28 --> 00:09:30 is also the case where Kagan says that the major
00:09:30 --> 00:09:32 questions doctrine is a get out of text free
00:09:32 --> 00:09:36 card, which is cute. A lot of good lines in this
00:09:36 --> 00:09:39 podcast. I know it is. This is a good one. So
00:09:39 --> 00:09:41 it's also understandable given everything we've
00:09:41 --> 00:09:45 read. It's like. If the babysitter gave the kids
00:09:45 --> 00:09:48 ibuprofen for a headache and then the parents
00:09:48 --> 00:09:50 came home and got furious, you can't make any
00:09:50 --> 00:09:52 sort of medical decision without explicit instructions.
00:09:52 --> 00:09:55 So now tonight the kid is having an asthma attack.
00:09:55 --> 00:09:58 The babysitter can see that, but she's calling
00:09:58 --> 00:10:00 the parents and they're not answering. She's
00:10:00 --> 00:10:02 already been yelled once for doing something
00:10:02 --> 00:10:04 similar. So she's terrified to go get the kid's
00:10:04 --> 00:10:06 asthma inhaler without specific instructions.
00:10:07 --> 00:10:09 So how does this actually work in practice? Are
00:10:09 --> 00:10:13 agencies just simply paralyzed right now? Not
00:10:13 --> 00:10:15 completely, but they're definitely being a lot
00:10:15 --> 00:10:18 more cautious. They're trying different strategies
00:10:18 --> 00:10:21 so they can break big actions into smaller pieces
00:10:21 --> 00:10:23 that might not trigger the major questions doctrine.
00:10:24 --> 00:10:28 They're gaming the system. Or we could say they're
00:10:28 --> 00:10:29 working within the constraints that the court
00:10:29 --> 00:10:32 has imposed. Instead of one clean power plan,
00:10:32 --> 00:10:35 we might have 10 smaller rules that together
00:10:35 --> 00:10:37 achieve something similar. Each one alone might
00:10:37 --> 00:10:40 not be major. So does that work? Nobody knows.
00:10:40 --> 00:10:43 The court could say the cumulative effect is
00:10:43 --> 00:10:46 major, the doctrine still applies, or it could
00:10:46 --> 00:10:48 treat each one individually and let them slide.
00:10:50 --> 00:10:52 Agencies are also being much more careful about
00:10:52 --> 00:10:54 trying to find explicit statutory authorization
00:10:54 --> 00:10:57 and trying to find the clearest possible language
00:10:57 --> 00:11:01 in the statute. Like what? Like after West Virginia's
00:11:01 --> 00:11:03 EPA struck down generation shifting, the EPA
00:11:03 --> 00:11:05 can try and find other provisions of the Clean
00:11:05 --> 00:11:08 Air Act that might allow it to do this more clearly.
00:11:09 --> 00:11:11 Agencies also can obviously push Congress to
00:11:11 --> 00:11:14 pass new explicit authorization. So will Congress
00:11:14 --> 00:11:17 actually do that? Theoretically, it could. Congress
00:11:17 --> 00:11:20 did explicitly give the FDA authority over tobacco
00:11:20 --> 00:11:24 in 2009 after Brown v. Williamson. But on most
00:11:24 --> 00:11:27 controversial issues, as everybody by this point
00:11:27 --> 00:11:30 knows, Congress is generally too divided to act.
00:11:30 --> 00:11:32 So what does that mean for ordinary people? How
00:11:32 --> 00:11:35 does the major questions doctrine actually affect
00:11:35 --> 00:11:39 the way we live? In ways people might not realize.
00:11:39 --> 00:11:42 Now, anytime an agency considers any sort of
00:11:42 --> 00:11:45 significant regulation, they have to ask, will
00:11:45 --> 00:11:47 the court consider this a major question? And
00:11:47 --> 00:11:49 if the answer is yes, they may not act at all.
00:11:50 --> 00:11:53 So less ambitious government action across the
00:11:53 --> 00:11:55 board. Certainly in some instances, we could
00:11:55 --> 00:11:57 still see agencies pushing boundaries, betting
00:11:57 --> 00:11:59 that their action won't be seen as major. But
00:11:59 --> 00:12:01 there's a lot on the line here. It takes a long
00:12:01 --> 00:12:04 time to get these through the agency process.
00:12:06 --> 00:12:08 If the thought is it's just going to be annihilated
00:12:08 --> 00:12:10 at the end, agencies have very little incentive
00:12:10 --> 00:12:13 to do that. So it sounds like it creates a lot
00:12:13 --> 00:12:16 of uncertainty for different people. It does.
00:12:16 --> 00:12:19 It creates uncertainty for everyone. Businesses
00:12:19 --> 00:12:21 don't know if regulations will survive the challenge.
00:12:21 --> 00:12:23 Beneficiaries don't know if programs will be
00:12:23 --> 00:12:26 struck down. And agencies don't know how aggressive
00:12:26 --> 00:12:28 they can be. OK, so where is all this heading?
00:12:28 --> 00:12:30 Will the court keep expanding major questions
00:12:30 --> 00:12:34 doctrine? That's the big question. Some justices
00:12:34 --> 00:12:37 seem to apply it really broadly. Gorsuch has
00:12:37 --> 00:12:39 written concurrences saying that he would use
00:12:39 --> 00:12:41 it even more aggressively than it's been used.
00:12:41 --> 00:12:45 But others seem to want to pump the brakes. Why
00:12:45 --> 00:12:47 would they pump the brakes? If we take this to
00:12:47 --> 00:12:49 its logical extreme, the major questions doctrine
00:12:49 --> 00:12:51 can invalidate huge swaths of the administrative
00:12:51 --> 00:12:55 state. There are tons of major decisions that
00:12:55 --> 00:12:57 agencies make. Drug approvals for major diseases.
00:12:58 --> 00:13:00 Safety standards for technologies. Regulations
00:13:00 --> 00:13:03 for airlines, financial regulations after crises.
00:13:03 --> 00:13:05 If these all become major questions requiring
00:13:05 --> 00:13:08 explicit congressional authorization, agencies
00:13:08 --> 00:13:11 can no longer really act. So we could think of
00:13:11 --> 00:13:14 an example like Ozempic. Insurance companies
00:13:14 --> 00:13:16 have already said this year they're raising insurance
00:13:16 --> 00:13:18 rates in part due to the cost they're expecting
00:13:18 --> 00:13:21 from so many people taking the drugs. And my
00:13:21 --> 00:13:23 rough back the envelope calculations earlier
00:13:23 --> 00:13:27 were that it would be about $100 to $150 billion
00:13:27 --> 00:13:31 a year if... Everyone who could take it on label,
00:13:31 --> 00:13:33 which is type 2 diabetes, used it. And hundreds
00:13:33 --> 00:13:37 of billions of more if it was just used for weight
00:13:37 --> 00:13:40 loss for everybody eligible. So that certainly
00:13:40 --> 00:13:42 sounds like we're remaking a huge part of the
00:13:42 --> 00:13:44 economy right there. This is probably a good
00:13:44 --> 00:13:47 time to mention that this podcast is not brought
00:13:47 --> 00:13:50 to you by the makers of Ozempit, your favorite
00:13:50 --> 00:13:54 GLP -1 supplement. It's good. I like it. So I
00:13:54 --> 00:13:57 think even conservative justices can recognize
00:13:57 --> 00:13:59 the danger we're facing here. The question is
00:13:59 --> 00:14:01 where they're going to draw the line. Here's
00:14:01 --> 00:14:04 what Barrett wrote in her Nebraska concurrence.
00:14:04 --> 00:14:06 She joined the majority but seemed concerned
00:14:06 --> 00:14:13 about potentially going too far. She said, Yet
00:14:13 --> 00:14:25 I do not see the major questions doctrine that
00:14:25 --> 00:14:28 way. Rather, I understand it to emphasize the
00:14:28 --> 00:14:30 importance of context when a court interprets
00:14:30 --> 00:14:33 a delegation to an administrative agency. And
00:14:33 --> 00:14:35 seen in this light, the major questions doctrine
00:14:35 --> 00:14:38 is a tool for discerning, not departing from
00:14:38 --> 00:14:41 the text's most natural interpretation. So she's
00:14:41 --> 00:14:43 clearly trying to frame the major questions doctrine
00:14:43 --> 00:14:46 as the weak version here. This is just careful
00:14:46 --> 00:14:49 statutory reading. It's not a super strong clear
00:14:49 --> 00:14:51 statement rule. And this may be where the court
00:14:51 --> 00:14:54 ends up finding a limiting principle. So we might
00:14:54 --> 00:14:56 see the doctrine stabilize rather than keep expanding.
00:14:57 --> 00:14:59 Potentially. The question isn't whether the major
00:14:59 --> 00:15:02 questions doctrine will survive. It will. The
00:15:02 --> 00:15:05 question is more, can the court articulate some
00:15:05 --> 00:15:08 sort of test so that everybody has an idea of
00:15:08 --> 00:15:10 what qualifies as a major questions doctrine?
00:15:11 --> 00:15:14 Right now, it can seem like the doctrine expands
00:15:14 --> 00:15:16 and contracts depending on whose policy is in
00:15:16 --> 00:15:18 front of the court. What if Congress were to
00:15:18 --> 00:15:22 pass a law that simply said, we want you to interpret
00:15:22 --> 00:15:25 our agency powers that we grant in as expansive
00:15:25 --> 00:15:29 of a manner as possible? Would that bind the
00:15:29 --> 00:15:32 court's hands to interpret or to do away with
00:15:32 --> 00:15:35 the major questions doctrine? No. We're going
00:15:35 --> 00:15:38 to talk about Chevron next time. Congress could
00:15:38 --> 00:15:42 easily put Chevron back in place. But if we view
00:15:42 --> 00:15:45 this as a concern about the constitutional role
00:15:45 --> 00:15:47 of the court, that's not something Congress can
00:15:47 --> 00:15:49 fix by just saying, please believe we're trying
00:15:49 --> 00:15:52 to do stuff within the outer limits of what the
00:15:52 --> 00:15:54 Constitution says. And that seems very problematic.
00:15:55 --> 00:15:57 I mean, creates different rules for different
00:15:57 --> 00:16:00 policies. Yes. It makes it look like the doctrine
00:16:00 --> 00:16:03 is really about policy preferences, not legal
00:16:03 --> 00:16:06 principles. It is also really worth noting that
00:16:06 --> 00:16:08 so far the court has just applied this to Democratic
00:16:08 --> 00:16:12 policies. There have been some discussion about
00:16:12 --> 00:16:14 whether the court is going to use it for Trump's
00:16:14 --> 00:16:17 tariffs. If so, that would be the first explicit
00:16:17 --> 00:16:19 use of the major questions doctrine against Republican
00:16:19 --> 00:16:23 action. This discrepancy is one reason why people
00:16:23 --> 00:16:25 feel so suspicious about the major questions
00:16:25 --> 00:16:27 doctrine and that the court is really trying
00:16:27 --> 00:16:30 to reach political ends rather than applying
00:16:30 --> 00:16:33 the law in a neutral manner. A year ago today,
00:16:33 --> 00:16:37 virtually every Democrat wildly hated the major
00:16:37 --> 00:16:40 questions doctrine until the tariff case came
00:16:40 --> 00:16:42 up and suddenly Democrats were realizing that
00:16:42 --> 00:16:44 maybe they didn't like out -of -control executive
00:16:44 --> 00:16:47 action. And that's the important thing about
00:16:47 --> 00:16:50 most of these administrative law rules. Unchecked
00:16:50 --> 00:16:53 executive power seems really abhorrent when the
00:16:53 --> 00:16:56 other party is in control, but right proper and
00:16:56 --> 00:16:58 necessary when your party is in control. So let's
00:16:58 --> 00:17:01 zoom out. How does the major questions doctrine
00:17:01 --> 00:17:03 fit with everything else we've covered this season?
00:17:03 --> 00:17:06 It's all connected. The major questions doctrine,
00:17:06 --> 00:17:08 Chevron deference, which we're talking about
00:17:08 --> 00:17:10 next time, the push against agency independence.
00:17:10 --> 00:17:13 It's all part of a broader skepticism about the
00:17:13 --> 00:17:16 administrative state itself. The court is reigning
00:17:16 --> 00:17:19 in agency power across the board. That is. Absolutely
00:17:19 --> 00:17:22 the trend. We'll be continuing that next episode
00:17:22 --> 00:17:25 when we talk about the Chevron Doctrine. We'll
00:17:25 --> 00:17:27 spend one episode talking about what the Chevron
00:17:27 --> 00:17:32 Doctrine was before we get back to the death
00:17:32 --> 00:17:35 of Chevron in a different episode. So that does
00:17:35 --> 00:17:36 it for today's episode on administrative remedies.
00:17:36 --> 00:17:39 Thank you for joining us today. Please, if you
00:17:39 --> 00:17:42 enjoy this podcast and enjoy this episode, give
00:17:42 --> 00:17:46 us a like on Spotify, iTunes, or whatever platform
00:17:46 --> 00:17:48 you're listening on. And be sure to tune in next
00:17:48 --> 00:17:51 time where we'll continue to dive into the contours
00:17:51 --> 00:17:53 of administrative law, because remember, you
00:17:53 --> 00:17:54 can't fix what you don't understand.