Consider a few passages from Justice Barrett's concurring opinion:
She says the major questions doctrine "serves as an interpretive tool reflecting 'common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency....The major questions doctrine situates text in context, which is how textualists, like all interpreters, approach the task at hand." (p. 5) Thoughts?
I love her hypos about the grocers instructing his clerk to buy apples for the store and, especially, the one about the parent and the babysitter (p.7-8):
Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park. If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to “make sure the kids have fun.”
This is a wonderful hypo demonstrating the major questions doctrine and how it helps interpret Congressional authorization for rule-making. A weekend trip with a babysitter is a major question, and to be authorized it would require a much more clear statement, such as "here is my credit card; take the kids to Six Flags for the weekend." Thoughts?
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