Three Dissents for the Sovereign’s Solipsism; Learning from ‘Learning Resources vs. Trump’

0.0 Introduction

On the 20th of February 2025, the Supreme Court of the United States (hereinafter the ‘Supreme Court’) held six to three, that the executive’s ability to install and set tariffs outside of the boundary of Congress as unconstitutional. The steps leading up to the Court’s tall marble erupted, for a political quagmire was set ablaze. That number, six, was enough to draw new lines. The other, three, descended from a partisan plea. Outside of catching rude burns from touching political fire, the judgment Learning Resources vs. Trumpprovides for a much needed pause, not of political debate as the quaestio facti at hand was clear. Rather, it was the manifestation of an extra-legal maneuver from the executive branch and its future effects which held the breath of legal observers.

The International Emergency Economic Powers Act (IEEPA) is a form of legislation which provides for actions beyond the established norms already familiar to a democratic state. Yet, it is not alien to such norms, for a quick observation across democratic constitutions finds that the majority indeed have incorporated a written form of ‘emergency powers’. In this article, taking light of such ‘state of emergency’, I shall go through and critically examine both the majority and the two dissenting opinions (Justices Kavanaugh and Thomas) in Learning Resources vs. Trump, along with a survey of ‘emergency powers’ within the realm of legal norms and philosophy at present in 2026.

1.0 … ut liberi esse possimus

“The social condition of the Americans is eminently democratic; this was its character at the foundation of the colonies, and it is still more strongly marked at the present day.”[1]

A 2020 Venice Commission report on ‘public emergency situations’ opens with a specific reference to the “derogation from normal human rights standards” along with “alterations” made to the functioning of the legislature, executive, and judiciary in European countries.[2] Such emergency is declared upon an event which threatens the life of a nation, therefore establishing a nexus of causes and effect towards the organs of the state which can range from any possible interference, whether material or immaterial. The constitutions of multiple European states are examined from which a sequence of effects can be attributed to the execution of such emergency actions, and yet there exists a good degree of difference among each state.[3] An effort to identify a common element within each presents itself largely as the exceptional nature of the state of emergency. Here, two questions ought to arise;

1.) What constitutes a legitimate state of emergency? and

2.) To what end can a state of emergency deviate from the norm as to render its exceptional nature so frequent as to install and purport a new normative paradigm?

I do not wish to provide a direct answer to these questions, as this article largely focuses on one such recent affair regarding the execution of the state of emergency within the context of a re-heated affair. The matter exudes a formal recognition of a constitutional order, which rendered de jure requires a fully working state, including a monopoly on its legal instruments. Therefrom, any purported matter concerning the state’s Constitution must have genuine legal effect[4] – and this is not a political inquiry. Taken as objectively as any state which renders its own monopoly unto its subject, the performance of its own legal tapestry is a calculable matter with which we can either say “yes” or “no” largely through identifying each instrument’s operation.

From such process of identification, a state of emergency expresses one important feature; the increase and improvement of the executive to gain further sovereignty from the legislature and the judiciary. However, the practice of such executive is immediately one of legislation, and therefore an assessment of its legality depends upon the normative compounding of the edifice and the organs of the state on matters of security.[5]It is then pertinent to discuss the role of the legislature in such scenario. Recently, on the 4th of March 2026, Congress voted against the discharge of United States Armed Forces which were executed without authorization from Congress in Iran. The motion did not pass 53 to 47.[6]

Oren Gross, currently professor of law at the University of Minnesota, speaks of “extra-legal” measures which are introduced in situations of emergency, largely attested to a theoretical position which forgoes the functioning of the constitution. Writing in a post-9/11 context, much of the framework of such theory concerns 20th Century continental legal philosophy insofar that its reported inventor was an architect to the creation of the German Reich, therefore sensitive to a very particular European legal context. Gross does not provide for an argument for or against its use however, as in hindsight it has been applied universally by Anglo-American authors.[7]

Immediately, one should notice the era of change at play. Not only have the forms of ‘threats’ changed, as the Tocqueville quote above unravels the fundamental difference between the Constitutional order of the United States and that of Europe, but we are currently made to also witness change of era.[8] Yet even during the war on terror it did not stop Gross from speaking of the blurred distinction at play between emergency and normalcy.[9] It is true insofar that norms are not static but dynamic, wherein if one is to take the introduction of ‘exceptional’ measures into law there is no longer an exception. In response to newer crises, the limits of any legal condition is further curbed upon the very decision taken and put into effect.

1.1 Legum servi sumus …

The French jurist Jean Bodin’s study of sovereign legal power merits a slight mention. Largely influenced from the socio-political matter of Renaissance France, his formula of an undivided, absolute, and perpetual state acting upon necessity[10] fits neatly with the conditions of declaring special legal maneuvers upon recognition of an emergency. Indeed, it is true that the exercise of any legal function effectively requires an undivided body with several organs, as it is also true that each function rests upon the rules of the body as materially constituted. If it does not, as St. Thomas Aquinas reminds us, the exercise itself becomes tyrannical; 

“Moreover, a government becomes unjust by the fact that the ruler, paying no heed to the common good, seeks his own private good.”[11]

That tyrant, as Bartolo de Sassoferrato adds, is either open (apertus et manifestus) or closed (velatus et tacitus), and either usurper of the executive office without title (ex defectu tituli) or exercises violence (ex parte exercitii)[12]. President Richard Nixon, consigned to the latter category, is made to parallel Richard III in Philip Abbott’s ‘Bad Presidents’ with such following diagnoses; “His pursuit of power was relentless. Both leaders ignored constitutional boundaries, large and small. And, of course, like Richard III, Nixon held deep grievances against the world.”[13]

It is then a poignant reminder, as we shall see later, that Nixon’s economic maneuvers were cited in the recent Supreme Court Judgment Learning Resources vs. Trump.[14] Held as “a master of surprise” by Abbot[15]perhaps our current day ‘shocks’ to the established rules necessitates a clear reference to Nixon, insofar wherein legal interpretation is concerned. Justice Barret, reflecting on such established preponderance of ‘rules’ whilst replying to Justice Gorsuch, summarizes the role of interpretative hermeneutics at play;

“Rather, as I explained in my concurrence in Biden v. Nebraska… Textualists—like all those who use language to communicate—do not interpret words in a vacuum. Instead, we use context, including “[b]ackground legal conventions,” “common sense,” and “constitutional structure,” to ascertain a text’s “most natural meaning.”[16]

Of course, one ought to reflect on the method which Justice Barret uses; textualism, to remark on the functioning of the Supreme Court’s multiple philosophies of interpretation for the Constitution. Yet, one ought to remember that such degrees of interpretative freedom rest on the written document. Since the role of the judge is not preformed in abstractio, but professes an explicit impact on the lives of citizens and non-citizens alike, simply affirming the mode of interpretation as ‘correct’ bears the brunt once the case stops at that positivistic junction; either one (1) or zero (0).

Speaking of the “perils” in adopting a positivistic process for interpreting law, Dr. Tonio Borg, professor of law at the University of Malta, observes a constitutional crisis which had begotten several political interests during Malta’s tumultuous republican reforms. He concludes summarizing; “However, the argument remains that legal continuity was jeopardised, and the idea of constitutional supremacy subjected to political convenience and expediency”[17] as to clear a Constitutional irregularity from the table. Political expediency is antagonistic to the rules based order within which any sovereign acts. Keeping this in mind, we shall go over the following two dissenting opinions delivered by Justices Kavanaugh, and Thomas respectively.

2.0 On Justice Kavanaugh’s Opinion

Arguing from a historical precedent, an emphasis on the case Federal Energy Administration v. Algonquin SNG, Inc.[18] was made to highlight the extraordinary power of the president to execute quantitative or qualitative restrictions on imports. This case, crucially, does not speak of ‘tariffs’ in essence, as it concerned President Nixon’s amendment of the MOIP which halted import quotas for oil, and instead implemented a system of fees.[19] The Federal Energy case would go on to prove the legality of such maneuver largely through established precedent in J. W. Hampton, Jr. & Co. v. United States[20] wherein legal anxiety concerning Title III of the Tariff Act of 1922 was met with an affirmative plea to the increase of customs on barium dioxide from President Coolidge.[21] The short lived 1922 Fordney-McCumber Tariff law was made in reaction to the changing economic tides of the 1920s which helped to increase agricultural spending power. Currently in force however is the 1930 Smoot-Hawley Act, which conversely reacted against the onset Great Depression crisis that negatively impacted the economy.

Both laws however provide for a degree of free exercise from the executive branch to amending the method with which the intended object, namely that of issuing economic maneuvers to render effects on contemporaneous events, is exercised, and to do so within the ambient of an interpretative proximity. The limits were understood to be the law itself. It is crucially this feature which helps in legally understanding President Nixon’s ‘shock’ imposition of a global 10% tariff through the 1930 law, as it was a reaction to a forthcoming inflation and currency crisis and not performed on a whim.[22]

Kavanaugh takes aim at the ‘major questions doctrine’, a form of legal interpretation which highlights the legislative intent as grounded within the legislature and not its creatures, thereby giving Congress the final “say” on decisions which the executive branch claims authority on a subject concerned with economic of political significance. This is done with concern of validating old laws, whose object may prove incompatible with new subjects. Indeed, Kavanaugh takes the correct position that such strict adherence to the legislature may compromise necessary measures concerning emergent foreign affairs. Immediately, the object of the Tariff Act is maintained to exercise a specific turnaround against an economic downturn, but the method of interpretation found in the ‘major questions doctrine’ may still prove to validate an old law, especially if its object is as capricious as economic threats which require an immediate response.

2.1 On Justice Thomas’ Opinion

A separate opinion was written by Justice Clarence Thomas, who maintains the necessity of delegation from Congress unto the Executive branch as wholly foundational to the Constitutional order of the United States. Rooted in legislative vesting, and the due process clause, several powers are taken to sustain themselves as unbound to Congress, and therefore could be delegated to the executive, writing;

“Neither the Legislative Vesting Clause nor the Due Process Clause forbids Congress from delegating its other powers.”[23]

At the heart of the matter, the importation of goods is considered as a privilege and not a legal right. This is a fair assessment from Justice Thomas, yet it is largely superfluous to the material concerning the main argument present in the majority opinion, since the matter of ‘goods’ is taken sans dire to its residual understanding from the court to exist as a ‘privilege’ and not right. Furthermore, Justice Thomas’ dissent relies heavily on the purported cause of ‘privilege’ taken as a faucet, with an ‘open and close’ mechanism. Indeed, having such instrument at one’s disposal is a ‘privilege’, yet the matter at heart bears little to the matter concerning the rationality of the mind, namely who and when ought one open or close the stream of water passing through its duct. To extend this metaphor further, the flow of foreign goods rests on a multitude of factors not dissimilar to the passage of water into a dwelling house, namely agreements taken within the polity, civic infrastructure, and the sourcing of the water itself.

Now, claiming to ‘close’ the faucet for the importation of foreign goods requires a more sophisticated argument, one which Justice Thomas forgoes as to instead resolve a crisis of political expediency. Speaking on the separation of powers, Justice Thomas’ dissent rests largely on the following logic; the Constitutional order merits a foundational reverence to the Common Law, which through the Magna Carta and authors such as William Blackstone speak of the unchallengeable rights of individuals. The importation of goods is a ‘privilege’ and not a right. Therefore, it is open to further restrictions than any right.

What this means is that any non-core power unconcerned with rights, such as those found in the IEEPA, are prepared and ready for exploitation. Thus, we return back to the concept of the ‘state of emergency’ and the room wherein the law was drafted.

2.2 Emergency as exception

One such feature of the ‘state of exception’ is its purported lack of securing accountability to whomever exercises discretionary power. What delineates each sovereign as to establish a choice between the internal and external is manifestly their capacity to execute the law. Such legitimization of the law’s effect is noteworthy insofar that its institutional exercise provides for a purpose which binds society upon a common language. Here I am reminded of Alessandro Passerin d’Entrève’s observation on the legitimizing process of the law, one which is formulated upon two conditions; 1. the existence and identification of a law that is held as natural “perché sembra scaturire dalla ‘natura delle cose’” upon which a rule of law is established and 2. an abandonment (abbandonare) of a strict interpretation which is solely reliant on the sovereign’s will, since law on its own “è un modo di pensare, di agire e di vivere” therefore set within our biological reality which enumerates and exercises motion.[24] In Giorgio Agamben’s noteworthy survey of this subject, the border of the ‘law’ is ever pertinent to its discussion largely by what it divides. He begins his 2005 book in such way;

“The question of borders becomes all the more urgent: if exceptional measures are the result of periods of political crisis and, as such, must be understood on political and not juridico-constitutional grounds… then they find themselves in the paradoxical position of being juridical measures that cannot be understood in legal terms, and the state of exception appears as the legal form of what cannot have legal form. On the other hand, if the law employs the exception – that is the suspension of the law itself – as its original means of referring to and encompassing life, then a theory of the state of exception is the preliminary condition of an definition of the relation that binds and, at the same time, abandons the living law.”[25]

Professor Gross mentions one such shift in legal norms. The Law and Administration Ordinance of 1948[26] of the State of Israel includes under Article 9 sub-article (b) the following; “An emergency regulation may alter any law, suspend its effect or modify it, and may also impose or increase taxes or other obligatory payments.” Gross highlights the use of such power under sub-article (a), wherein expediency for such declaration by the Provincial Council is taken upon its volition, from which “any law” becomes capable of amendment. Thereinafter the Yom Kippur War, “emergency powers have been exercised in an almost routine fashion.”[27]

 2.3 Summary of Justice Gorsuch’s Opinion

The status quo of contemporary modes of interpretation are not created in a vacuum. To answer for clarity is not a recent invention, and Justice Gorsuch follows this line of thought in his separate majority opinion. A noteworthy division of ordinary and extraordinary forms of delegation is considered underneath a reciprocal answer to scrutiny from the body of law and representatives. In the English case of Entick vs. Carrington[28], Justice Gorsuch finds the line drawn between extraordinary powers granted to the executive, such as the seizing of papers, to be subject under an equivalent force which begs for clarity. Erstwhile the Entick case concerned a right and not a ‘privilege’, the Constitutional doctrine it established forgoes the object at hand, and rather focuses squarely on the subject exercising the act, enquiring further upon its nature.

Lastly, a turning of the screw is made upon what Gorsuch sees as the foundational error to the evoking the IEEPA in the first place, namely that it occurred under peacetime and not under sudden economic, political, or moral duress which required a sudden response. A subtle nod to and explicit disapproval is made to Justice Barret, who evoked a two-tied method of textualist interpretation and ‘common sense’,

which Gorsuch rebukes with a series of case-law wherein a ‘commonsensical’ reading would have produced a different outcome. Norms are, to Gorsuch, evident not merely in the language of the law but are at their most explicit in the law itself, meaning that any form of delegation is, by law, not to exceed its instruction, as found under Article 1, Section 1 of the United States Constitution.

2.4 Ambiguity as a criterion for necessity

It is important then to follow upon the use and abuse of emergency powers underneath an incorrect interpretation of law. What Justice Gorsuch follows henceforth is a plea towards the natural imperatives of the legal regime. Conversely, Justice Barret’s emphasis on ‘common sense’ holds its own water in signaling respect towards the tapestry of norms present within the law, yet it is pertinent to add that both Justice Barret and Justice Gorsuch are textualists in their own right.

Against these however, each dissenting opinion held unto a different method of legal interpretation, which in hindsight may be understood as a bending of the law towards political convenience. More perniciously however appears to be not the method used, but the character of each dissent which forgoes that tapestry of norms at present in the United States legal order. One may be correct here to draw allusions to Paul Ricœur’s hermeneutics of suspicion, maneuvering through and upending established norms all the while establishing its own in paradox to the functioning of the capricious whim of a sovereign who, given the right moment, seizes on the ability to exercise the powers of their office, with accountability taken as passé. Unlike prior monarchic deliberations of exercising legal power beyond the checks and balances of the legislative branch, the current affairs present within the executive owe not to amending legal anxieties, but using such anxieties to the advantage of the office therefrom bringing out necessity out of ambiguity.

2.5 That ‘natural’ meaning of the law

After Richard Nixon resigned, President Gerald Ford took office. In 1976 he would sign into law the National Emergencies Act (NEA). In 2019, it was reported that 59 national emergencies had been declared since, with 31 continuously being renewed each year.[29] Right after, in 1977, the International Emergency Economic Powers Act (IEEPA) was signed into law by President Jimmy Carter, in complement to the NEA. Apart from requiring a state of emergency declared under the NEA, the IEEPA requires precision in issuing economic maneuvers as to not service blanket powers upon the executive branch. To quote the Congressional Research Service’s report;

‘The President may exercise IEEPA authorities only to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of IEEPA. and “not ... for any other purpose.”’[30]

The Code of Laws of the United States of America, under section 1703 sub-section (a), requires whenever possible for the President of the United States to consult Congress prior to “exercising any of the authorities granted by this chapter and shall consult regularly with the Congress so long as such authorities are exercised.”[31] Along with justification on “why the President believes those circumstances constitute an unusual and extraordinary threat…”[32] Even after the PATRIOT Act introduced new powers to the executive branch with respect to vest frozen assets, this could be only done “when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals”[33]

If one is to refer back to the methods of interpretation, perhaps ‘Learning Resources’ fundamentally exposes the ‘Major Questions Doctrine’ to scrutiny insofar that its interpretation of delegating powers onto the executive branch rests on a blurred line, establishing ambiguity in the face of express norms which flake and chip away the law’s clarity to a degree which becomes unsatisfactory to the ‘clear’ and ‘explicit’ language needed for the doctrine to permit such delegation. As it happened in West Virgina vs. EPA[34] and Biden vs. Nebraska[35], policy matters set by the executive were thwarted since no Congressional approval had taken place. One author remarked that such emphasis in turn creates a presumption against the executive.[36]

Ultimately, the major questions doctrine does not return the legal matter to congress, but the judiciary. At heart the matter is one of policy which concerns great political and or economic significance.[37] What this means, at least within the greater context of the law is the cross-section between that of the rules based order and political expediency, or the difference between the way Congress does act, and the way it should or ought to act.[38] The Chevron case championed this form of legal interpretation, and largely built its two-tiered logic of referring legal ambiguity unto the ‘reasonable interpretation’ of the executive.[39] Yet as the doctrine appears to expand in “unpredictable” ways, perhaps one ought to take note and resolve the greater concern which emerges in Griffith and Proctor’s summary, namely its current split between “the Chief Justice’s cautious search for “clear authorization” in “extraordinary cases,” and Justice Gorsuch’s more robust “clear statement rule” that applies to a wide range of “major” questions”.[40] What this amounts to is a legal form of the Motte-and-bailey fallacy, wherein the search for ‘meaning’ is made useless as instead the maneuvers of the court forgo the welfare of Congress or of the public good, and instead subjugate the law entirely to the political lines drawn not in the Senate and the House, but the Supreme Court. In effect, even if exercised by different Justices, it upends the balance of powers, and consigns the law’s meaning away from the organ which creates it. Now, as its future is “up for grabs”[41], all that is needed is an executive branch which imposes anxiety within the legal order to raise its prospective limits into conscience.

3.0 Concluding Remarks

In summary of each dissenting opinion, the Supreme Court has discovered a newfound anxiety within Constitutional and Administrative law, amid the precept doctrine of such Constitution falling into crisis not only because of an arbitrary exercise of the law itself, but in exchanging ends to those of manifest political will. I started this article by quoting Alexis de Tocqueville, whose ‘Democracy in America’ was written for a French audience already conscious of Napoleon Bonaparte’s legal and political maneuvers in that century, and much of Tocqueville’s assessment of the composition of American democracy retains a thoroughly sociological, and not an explicitly legal spirit in affirming that democratic character which impugned the hard boiled accusation of despotism or the possibility of reversion to a monarchic form of government. Alexander Hamilton was conscious of such character, so much so that it is manifest as a creature of that social condition. The law, ever facing such anxiety, ought to learn firstly from the reflection beset by Hamilton himself, perhaps made to deflect much of the anxieties at present during his time, when he consigned the meaning and role of the law;

“But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct.”[42]

Certainty is not a guarantee within any context upholding law as the supreme binding agent to any given society, but any legitimate expectation within the realm of legal interpretation is necessary for the functioning of an optimus ordo rei publicae insofar that it secures a legible, clear, and honest law which creates that necessary condition for legitimization; trust. Justice Kavanaugh, championing explicit “clear authorization” as a marker for validation, concludes his opinion succinctly that the imposition of excessive tariffs may not be the smartest decision taken by a sovereign, yet nevertheless it ought to be allowed. Perhaps in theory he is correct, but if one’s solipsism is allowed to run marathons across the executive office and continuously hold the law itself under existential duress, what of the binding agent which is necessary for any legal edifice to merely assume its most elementary function, that of trust? Masters of suspicion, Justices ought not be.

[1]    Alexis de Tocqueville, Democracy in America (Everyman Library) 46.

[2]    On States of Emergency (European Commission for Democracy Through Law 2020) 5.

[3]    ibid 12.

[4]    Anna Khakie, Securing Democracy? A Comparative Analysis of Emergency Powers in Europe (Geneva Center for the Democratic Control of Armed Forces (DCAF) Policy Papers – №30 2009) 7.

[5]    Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always be Constitutional? (Yale Law Journal, No. 112 2003) 1031.

[6]    On the Motion to Discharge (Motion to Discharge S.J. Res. 104 ) Roll Call Vote 119th Congress - 2nd Session.

[7]    ibid (no. 5).

[8]    Davos 2026: Special address by Mark Carney, Prime Minister of Canada, available at: www.weforum.org/stories/2026/01/davos-2026-special-address-by-mark-carney-prime-minister-of-canada/?gad_source=1&gad_campaignid=22228224717&gclid=EAIaIQobChMIjpOsucTekwMVDUNBAh1NpCiEEAAYASAAEgK9wvD_BwE

[9]    ibid (no.5) 1089.

[10]  Wm. A. Dunning. Jean Bodin on Sovereignty (Political Science Quarterly 11, no. 1 1896) 85.

[11]  Thomas Aquinas, De Regno; on the Kingship to the King of Cyprus (Toronto: The Pontifical Institute of Mediaeval Studies 1949).

[12]  Julius Krishner. Bartolo of Sassoferrato’s De Tyranno and Sallustio Buonguglielmi’s Consilium on Niccolò Fortebracci’s Tyranny in Città di Castello (Brepols Medieval Studies, Volume 68, Issue 1 2006) 306.

[13]  Philip Abbott, Bad Presidents. The Evolving American Presidency Series (Palgrave Macmillan 2013) 177.

[14]  607 US _ (2026).

[15]  ibid (no. 13).

[16]  Ibid (no. 14) J. Barret concurring. 1 – 2.

[17]  Tonio Borg, The perils of positivist thinking in public law. Online Law Journal 2020) available at: https://www.ghsl.org/wp-content/uploads/2022/07/2020-08-16-Tonio-Borg-Id-Dritt-extract.pdf

[18]  426 US 548 (1976)

[19]  Presidential Proclamation No. 4210, 3 CFR 31 (1974).

[20]  276 U.S. 394 (1928)

[21]  45 Treas.Dec. 669, T.D. 40216

[22]  Presidential Proclamation No. 4074, 3 CFR 60–61 (1971–1975 Comp.).

[23]  ibid (no. 14) J. Thomas Dissent 5.

[24]  Alessandro Passerin D’Entrèves. Obbedienza e Resistenza (Edizioni di Comunità 2018) 65.

[25]  Giorgio Agamben, The state of exception (University of Chicago Press 2005) 1.

[26]  Law and Administration Ordinance, 5708-1948

[27]  ibid (no. 5) 1093.

[28]  [1765] EWHC KB J98

[29]  Kendall Heath, Here's a list of the 31 national emergencies that have been in effect for years (ABC News January 11th 2019) available at: https://abcnews.com/Politics/list-31-national-emergencies-effect-years/story?id=60294693

[30]  The International Emergency Economic  Powers Act: Origins, Evolution, and Use (Congressional Research Service September 1st, 2025) 11. available at: https://sgp.fas.org/crs/natsec/R45618.pdf

[31]  50 U.S. Code § 1703 

[32]  ibid

[33]  50 U.S. Code § 1702 (c)

[34]  597 U.S. 697 (2022).

[35]  600 U.S. 477 (2023).

[36]  Ronald M. Levin, The Major Questions Doctrine: Unfounded, Unbounded, and Confounded (California Law Review Volume 112 June 2024). available at: https://www.californialawreview.org/print/major-questions-critique

[37]  U.S. Telecom Ass'n v. Fed. Commc'ns Comm'n, 855 F.3d 381(Mem) (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc).

[38]  ibid.

[39]  Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[40]  Thomas B. Griffith & Haley N. Proctor, Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine (The Yale Law Journal Volume 132 November 2022). available at: https://yalelawjournal.org/forum/deference-delegation-and-divination

[41]  ibid.

[42]  The Federalist no. 33