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Friday Fun Thread for July 28, 2023

Be advised: this thread is not for serious in-depth discussion of weighty topics (we have a link for that), this thread is not for anything Culture War related. This thread is for Fun. You got jokes? Share 'em. You got silly questions? Ask 'em.

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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.

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.

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 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.

I am not sure what the intended amount of loan forgiveness was in the bill in question

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."