nondelegation doctrine in more of these kinds of issues can be dealt with with nondelegation as opposed to more indirectly through major questions, the best should not be the enemy of the goods we have an imperfect and flawed and fuzzy major questions doctrine and that can be worked on and improved but it's still better how anything goes role where there's no limit and were relatively vague read to delegate vast amounts of power to the executives will disclosure. even if you trust the biden administration with this discretion view trust donald trump or the next republican president might be in if you trust the republicans you trust the democrats, i think the answer to these questions is going to be no and that's one reason why some sort of major questions doctrine is desirable and it should be left to thehy political process. >> i want to clarify why i think we agree and disagree. i agree with him on the covid cases in the court reached the right outcome of both of them and i also agree with him the osha case in particular was not as strong as it could've been and among other things. cl

i think over time maybe theou court should fully provide the nondelegation doctrine in more of these kinds of issues can be dealt with with nondelegation as opposed to more indirectly through major questions, the best should not be the enemy of the goods we have an imperfect and flawed and fuzzy major questions doctrine and that can be worked on and improved but it's still better how anything goes role where there's no limit and were relatively vague read to delegate vast amounts of power to the executives will disclosure. even if you trust the biden administration with this discretion view trust donald trump or the next republican president might be in if you trust the republicans you trust the democrats, i think the answer to these questions is going to be no and that's one reason why some sort of major questions doctrine is desirable and it should be left to thehy political process

over time the court should more fully revise the nondelegation doctrine and more of these issues to beith directly under non- delegation as more indirectly through major questions. but there are a lot of places that should not be the enemy of the good so it is imperfect and flawed major questions doctrine. that could be worked on. but it is still better than having an anything goes rule where there is no limit whatsoever to delegations where the statutes can be read to delegate vast amounts of power so with the sole discretion even if you trust the biden administration or you trust donald trump for the next republican president. if you trust the republicans do you trust the democrats? the answer to both questions for many will be no. and that is one reason why some sort of major questions doctrine is desirable and should be left to the political process. >> let me clarify right think we agree and disagree first of all i agree on both of the covid cases and that the court reached the right outcome and i also agree the osha case in particular was not as strong as that could have been. wi

nondelegation doctrine with other states like west virginia versus epa and also the additional time case that emergency powers will be subject to various judicial review and that's important it gives the emergency power doesn't mean you get a free pass from the courts. the covid emergency hopefully is sending but there will be others in the future and this is an important issue. obviously this decision was significant because it did strike down a big sweeping mandate. the majority gently from for narrower workplace vaccination mandates and places that there is a special risk or if covid risk is higher in the workplace and elsewhere but for whatever reason the biden administration did not take them up on this or try to craft a narrow rule. one thought of it was that important as the administration claimed they may have at least tried to do that. biden versus missouri is a significant case it makes clear you can use a cms power of traditional spending to require vaccination mandates not just purely administrative rules. there are other diseases going around for healthcare workers maybe eve

doctrine says that if congress is going to give the executive control over some sort of major policy decision, that at very least they have to state they are doing that. major questions and nondelegation is at the heart of several recent high-profile decisions and there are a number of areas of immigration policy were passed court decisions and certainly the executive position has had the incredible has incredible, enormous discretion over keeping people out if he or she wants to, and in the lower courts, there has been some action applying nondelegation constraints to that. in 2020 federal court struck down trumps non-visa band. what is not clear is whether the supreme court will apply nondelegation in this area for another ad hoc exemption like they have created for a lot of other constitutional principles. i hope they will not, because i do not believe this double standard is justified. there is nothing in the text of the constitution that says it. there is nothing in the original meaning, and it dates back to the early 19th century to a lot of decisions that were poorly reasoned in many cases were motivated by racism but -- but which i mean there was actual racial presidents -- pr