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Fine, but what does any of that have to do with the quality of the research paper?
As for this:
How does that address anything that I just said? She fails to make clear why the hypothetical does not accord with reasonableness, which makes it difficult to discern whether reasonable people might disagree with her. And your comment illustrates the problem: Surely, if the trip is unreasonable, it cannot be because it is "tangentially related" to fun, because 2-day trip to Disney World is not "tangentially related" to fun; it is megafun (for kids, at least). The problem must lie elsewhere.
But her legal point rests on an empirical claim, which is that almost everyone would consider the actions of the hypothetical babysitter to be unreasonable. And that empirical claim is called into question by the survey mentioned in the article. And, that is a key point of the article: that her approach is far more subjective than she realizes. To be clear, I am not saying that the article is correct. Nor am I criticizing the major question doctrine, which seems to make sense (though I have not thought it through to any great extent). Nevertheless, had she articulated why she thinks the babysitter was unreasonable, she might have gone a long way toward assuaging concerns that the major questions doctrine is overly subjective.
It's based on a farce--the farce that if the hypothetical is wrong, so is the argument. In reality anyone with an ounce of charity can see the point that Barrett is making even if they disagree with the specific hypothetical. I've already given you several alternative hypotheticals which you haven't addressed, so I won't bother with another.
Assuming you're talking about the actual hypothetical here, its interpretation requires no additional argument. It is easy to discern whether reasonable people disagree with the hypothetical due to the nature of the hypothetical itself. Assuming you're talking about the broader point, I think the major questions doctrine is essentially self-evident. The hypothetical is just a way to illustrate this. Self-evident truths require little argumentation most of the time; analogies are better for communicating their meaning.
I didn't say being related to fun made the trip unreasonable. What I said was that being related to fun didn't make the trip reasonable. You asked why the trip was unreasonable and named several possibilities, and I said "all of the above", so I don't get why you're taking this approach here.
I think it's impossible for the major questions doctrine to be anything besides overly subjective. It is basically just common sense to me. "You can't seize power just because a warped reading of an obscure bylaw says you can." For this to be objective, it would need to essentially encompass all other legal doctrines. Fact is, divining the meaning of words is what the entire field is, and thus "don't force your own interpretation of the words", precisely defined, would also span the breadth of the field.
But it was of course BARRETT who originally used the hypothetical to support her claim that her argument is correct. So, somehow it is a "farce" to say that, if her hypothetical is problematic, that undermines her argument? That doesn't make much sense.
You said: "While the stated rule may have involved fun, that doesn't mean that literally any possible action tangentially related to fun becomes allowed." If that is is not a claim that the trip is not within the rule because it is only tangentially related to fun, it has no meaning.
Well, I am not sure I agree, but if you are right, then that is an argument in favor of discarding the major questions doctrine in favor of something else, isn't it? You are certainly agreeing with the article, which says, "Barrett and Wurman’s attempts to establish the MQD as a linguistic canon raise serious, unintended challenges to textualism. Barrett’s arguments paradoxically prove too little and too much. She fails to establish the MQD as a linguistic canon (too little). At the same time, her arguments about “common sense” and “context” are so general that they threaten to undermine textualism’s commitment to enforcing the rule of law by privileging semantic meaning, even when unexpected applications are at issue (too much). In fact, Barrett’s “common sense” interpretive principle is anti-textualist and would grant boundless discretion to courts to ignore the semantic meanings of texts in favor of normative concerns." Now, perhaps your response is "I don't care," which is fine, but it is odd to be so critical of an article, one of whose major claims is that MQD is, as you put it, "highly subjective" is one with which you seem to agree.
The point made by the hypothetical is self-evident. In that sense, the hypothetical is not problematic. No matter how many people agree/disagree with the specific hypothetical (and I would argue the vast majority agree with it), the point it is making is quite clear, well-expressed, and undeniable. Reasonable limits are simply a fact of human communication. The article did not address the point, but rather the hypothetical meant to communicate that point, so it's farcical.
That's exactly what my claim is. Being tangentially related to fun is, on its own, insufficient to make it permissible according to the instructions given by the parents. I never said the trip itself was only tangentially related. My words were:
which outlines a set which pretty clearly includes actions more than tangentially related to fun too. Overall I feel I was very clear and yet you still misinterpret me.
Not at all! Logic itself also encompasses the breadth of legal reasoning (and more), and cannot be rigorously defined, but that's no reason to abandon it. My point is that some principles are necessarily so vast as to be somewhat ill-defined. There's no possible way to replace a vast principle with a smaller one--it wouldn't cover all the same cases.
The paper also focuses too heavily on MQD as "linguistic canon" when all the emphasis is on, not the linguistics, but common sense.
Some things are just too large to be perfectly defined by humans. Common sense is one of them. Formal logic is another. Justice requires both, and I refuse to throw out either just because they're highly subjective.
In the end I don't really care to debate the legal basis of MQD. It's just obviously correct. The article uses lots of words to advocate for a conclusion anyone can see is idiotic. If Congress says the president can appoint generals, but doesn't specify a number, that doesn't give the president the right to appoint everyone in the US as a general and thus unilaterally create UBI. I'm not a lawyer but I know truth and falsehood when I see it, and MQD is true.
No one is arguing that we have to throw out common sense. Nor is anyone arguing that MQD must necessarily be thrown out. The article is merely arguing that the specific argument made in favor of MQD by Barrett in that particular section is inconsistent with textualism. As the conclusion of the paper says, "There is insufficient empirical support and theoretical clarity to cast the MQD as a valid linguistic canon. Arguably, the linguistic defense is the only viable theory for textualists to consistently employ the MQD. Unless they offer a successful alternative, the results here support the argument that textualists should abandon the MQD."
This is exactly what I'm talking about, this definition of textualism which excludes common sense when it suits the author. MQD is just common sense and requires no textualistic support. And again, the supposed "linguistic defense" is focusing too much on the linguistics when it should really be focused on "common understanding" aka "common sense."
This is why I mentioned "this definition of textualism which excludes common sense when it suits the author." When I say MQD is common sense, I'm not saying common sense says MQD is true. I'm saying MQD is literally common sense, i.e. it is a name we have given to a certain portion of common sense. Certain things like common sense, logic, etc. underly textualism. To say MQD and textualism are inconsistent is simply to say you don't like textualism because it's illogical. Textualism never claimed to be the one true fount of truth from which all legal reasoning, including reasoning about legal reasoning, must flow.
Is there a legal doctrine for things like modus ponens? All doctrines do is narrow down and give names and guidelines to basic reasoning. It is impossible to have rules for all situations, and it is impossible to precisely define even a single situation, so literally all rules' interpretations are subjective to some extent. "Don't break the law" is basically the foundational principle of the justice system, and the rest of the doctrines are how to determine whether the law is broken. Something like "Don't interpret the word 'small' to actually mean 'big'" is of course so obvious that it doesn't need its own principle, not to mention too specific for a principle, but the broader principle of "words have meanings" is extremely subjective, and so smaller doctrines have been established to break that sort of thing up.
MQD is in the "words have meanings" category where it is obviously valid, but is so large that it cannot be as objective as more narrow doctrines are. In the absence of a more narrow doctrine, though, MQD seems perfectly valid to me.
First of all, you seem to be conflating logic and common sense. They are not the same thing. Although logic informs common sense, ultimately common sense includes a form of judgment, as is exemplified by the babysitter example, and the fact that people wildly disagree on whether the trip was an unreasonable application of the rule. And, what about a one-day trip to Disneyland? Or a trip to the Coney Island boardwalk? What it they went to the boardwalk on a rented helicopter. Helicopter trips are fun! So, logically, that is perfectly fine. But common sense might imply that it wasn't,
And it is completely incorrect to say that "To say MQD and textualism are inconsistent is simply to say you don't like textualism because it's illogical." Textualism attempts to determine what words in a statute mean by trying to determine how the words were understood when the statute was written. Once that is determined, that meaning controls the outcome, as a matter of logic, even if it is clear that no one intended or even contemplated that outcome at the time. The obvious example is of course Bostock, holding that VII of the Civil Rights Act of 1964 forbids discrimination based on sexual orientation and gender identity.
In contrast, to textualism, to which legislative intent is irrelevant, MQD rests on an assessment of legislative intent; as Barrett notes, "the major questions doctrine rests on “both separation of powers principles and a practical understanding of legislative intent”). Which is why stating that MQD is inconsistent with textualism does not necessarily undermine the legitimacy of either.
As for "words have meanings," that has very little to do with MQD. In the textualist majority opinion in Biden v. Nebraska, Justice Roberts examines the meaning of "modify" and determines that the loan cancellation does not meet that definition. ( "that term carries “a connotation of increment or limitation,” and must be read to mean “to change moderately or in minor fashion.” Ibid. That is how the word is ordinarily used. See, e.g., Webster’s Third New International Dictionary 1952 (2002) (defining “modify” as “to make more temperate and less extreme,” “to limit or restrict the meaning of,” or “to make minor changes in the form or structure of [or] alter without transforming”). The legal definition is no different. Black’s Law Dictionary 1203 (11th ed. 2019) (giving the first definition of “modify” as “[t]o make somewhat different; to make small changes to,” and the second as “[t]o make more moderate or less sweeping” ... The Secretary’s new “modifications” of these provisions were not “moderate” or “minor.”).
That is not the type of inquiry involved in MQD. As the CRS notes, MQD applies when "(1) the underlying claim of authority concerns an issue of “vast ‘economic and political significance,’” and (2) Congress has not clearly empowered the agency.” MQD is not about the meaning of words. It is about the intended scope of a statute. Thus, even if the Court had decided that "modify" can legitimately be interpreted to mean "cancel," they could have nevertheless annulled the loan cancellation under MQD on the grounds that Congress had not clearly intended to delegate action with "vast economic and political significance."
Finally, if it is so crazy to think that textualism and MQD are inconsistent with each other, why does Justice Barrett not think it is crazy? See the second paragraph of her concurrence in Biden v Nebraska: "I take seriously the charge that the doctrine is inconsistent with textualism."
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I think her legal point is that there are circumstances where actions are unreasonable. The fact that her example is one that people disagree on does not establish that the argument generally fails.
Consider the following: My son asks if he can use my credit card to go to a ball game. I say yes. He asks can be by someone a drink if he meets someone special. I say yes. He buys not just everyone in the stadium a drink, but everyone in every baseball stadium, and sets up a system whereby all future drinks are paid for on my dime, indefinitely. I think this is unreasonable, and I doubt that more than 15% of people would consider his actions reasonable. Ok, maybe 20% of people would be ok with this.
Is this example more analogous to paying off everyone's student loan debt? I don't know, but I do know that there are unreasonable uses of permission.
I think the best metric is possibly that spending an order of magnitude (or possibly two orders, and definitely three) higher than intended is probably suspect. A babysitter who chartered a plane to Disneyland is probably unreasonable. One that hires Justin Bieber to sing the kids to sleep is even more unreasonable (I actually know someone who had Bieber sing their kids to sleep. Beiber did it for free as a favor.) The point of the example is that there are expenditures that are so much larger than the expected amounts that they require explicit permission.
I am not sure what the intended amount of loan forgiveness was in the bill in question. If the permission was expected to be applied on an individual case basis, then blanket forgiveness is perhaps 10 million times more expensive than was intended. This is close to buying everyone in every stadium a beer.
If the bill was intended to allow the forgiveness of 100k people (all active duty servicemen), then stretching it to less than 1 million is probably not objectively unreasonable, as it is within an order of magnitude. This is analogous to my son meeting up to ten girls and buying them drinks. This is excessive but not unreasonably so.
I sense that you think I am implying that the student loan case was wrongly decided. I don’t. (But note that the majority did not rest its holding on the major questions doctrine. As Barrett says in the opening to her concurrence, "I join the Court’s opinion in full. I write separately to address the States’ argument that, under the “major questions doctrine,” we can uphold the Secretary of Education’s loan cancellation program only if he points to “‘clear congressional authorization’” for it. West Virginia v. EPA, 597 U. S. ___, ___ (2022) (slip op., at 19). In this case, the Court applies the ordinary tools of statutory interpretation to conclude that the HEROES Act does not authorize the Secretary’s plan. Ante, at 12–18. The major questions doctrine reinforces that conclusion but is not necessary to it. Ante, at 25.). And FWIW, the major questions doctrine makes sense to me, but I am open to changing my mind, and I have no opinion re its application to the student loan issue.
As I understand it, the law in question did not explicitly permit a particular amount of loan forgiveness at all. Which is one reason why it is unclear why Barrett finds the babysitter's action unreasonable. If it had been, one might surmise that she objects to the expense involved in the trip. But, of course, most major questions cases I know of relate to the scope of permissible regulation, and not to extent of expenditures.
Edit: The issue addressed by the majority was whether the power to "waive or modify" included the power to "cancel."
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