likely to be a major frontier that the court will be confronting in the years to come with the nondelegation doctrineand executive officers and all sorts of doctrines that are going to be coming up. justice breyer was one of the staunchest as an adamant scholar before he became a judge and as somebody that has deep knowledge of administrative law and strong views. without him on the court for those cases, you still have justice kagan that's a very articulate member of the state but i think thatgh might change the way that perhaps the dissent in the cases might end up approaching the argument. justice breyer would have been an important voice for the state position when the cases come up and we don't know yet whether justice jackson will have the same views on those issues and articulated them in a similar way. probably not in a similar way at least. >> i think on most cases it will say the same. in the cases they would sometimes cite. but by and large the biggest difference is behind-the-scenes justice breyer is one of the most collegial people. he's just sort of personally engaging. only time will t

congress will not limit itself and will not stop violating the nondelegation doctrine which the court flinches from enforcing, which says as john locke said legislatures can make laws, they cannot make other legislators so congress out to stop delegating essentially legislative powers to executive agencies such as not quite at random the power to have an eviction moratorium for the centers for disease control or occupational health and safety administration, to impose mandates on private sector employees. >> host: what if the supreme court overturned the eviction ban outside emergency powers, also could be a judicial question but what do you think are the most important decisions that impact american life in modern times? i river john roberts being reluctant to overturn obama care and a technicality on tax mandates. hard to have a lot of faith in what is coming and that there will be a counter to many things although conservatives get judges out of the trump administration, brett kavanaugh. >> guest: brown versus board of education gave the court an enormous investiture because it wen

it is not exactly the nondelegation doctrine, but it is a cousin of it. it basically says the way the court is looking now at regulatory actions, whether they involve climate change or vaccine mandates, the court is looking for much more specific authorization and guidance from congress before regulatory agencies can take action. i think that is the big picture of both of those cases. west virginia versus epa has been kicking around for a long time, since the obama administration. the clean power plan of the obama administration was an effort to significantly reduce greenhouse gas emissions. what it did was it essentially encouraged coal producers, many of them having reached the technical limits of being able to improve the emissions of their factories or their power plants, to basically get out of business and start buying emissions credits from cleaner fuels and transition out of coal altogether. it also had some other elements involving the relation of each state environmental agency and what they can do, but that was sort of the bottom line is for --

>> i think certainly that is a broad view of the nondelegation doctrine. it is not necessary for the court to go that far to say whether congress could delegate these questions. i think the daylight between the two is this question of has congress purported to delegate? the major statement is getting at that question, what did congress think it was doing? what did congress actually do with the words in the statute. it would be a separate question if congress said clearly epa to make a fort and exercise a transformative power. that might be a separate nondelegation question. >> let me push you a little better on what you mean by clear statement. are you using the phrase clear statement to mean and other words we would expect congress use the clear statement because one way to be commonsense for one to say something like this very clearly and precisely. >> we assumed this was the sort of issue congress went into itself. if congress is not going to handle major policymaking it would directed to the agency. >> when you say clear statement can in you are using

the attack on regulation began with an effort to revive the so-called nondelegation doctrine, discarded by the supreme court almost 100 years ago. like the major questions doctrine, this allowed courts to strike down agency rules when congress wasn't explicit enough in delegating power. polluters loved it. scheme front groups like cato, propped up by the dark money from the fossil fuel billionaire koch family and why exxonmobil, sponsored research that argued for reviving the nondelegation doctrine. they organized conferences and seminars, lobbied legislators and funded law groups designed to spread the idea far and wide. but major questions had one advantage -- years oorg, on the d.c. -- years ago on the d.c. circuit court of of appeals, justice breyer used those two words once in a lengthy law review article. they could siege that camouflage. guess what -- major questions is just nondelegation in disguise. if you don't believe me, with let's go back to justice gorsuch in a concurrence from another case earlier this year. i quote, the major questions doctrine is closely related to what