00:00Judge Byrne, you were here when Senator Lee talked about the non-delegation doctrine.
00:08I was.
00:09Yeah, I got a little confused.
00:10What is the non-delegation doctrine?
00:14The non-delegation doctrine refers to the idea that Congress may not give or delegate its lawmaking authority to an—
00:26I'm sorry.
00:27It's okay.
00:29The idea that Congress may not give or delegate its lawmaking authority to a regulatory body, that the legislative power—
00:36You can't give it to anybody, can it?
00:38True, anyone.
00:39You can't give it to another branch of government, right?
00:41Correct.
00:42Okay.
00:48And what does that have to do with the major questions, doctor?
00:53I mean, Senator Lee certainly explored some overlap between the two.
00:56I had not actually considered personally the overlap between the two, but I think I can see some relationship.
01:04The major questions doctrine is a little bit different.
01:06It is an approach the Supreme Court and some other courts have applied in analyzing statutes in essentially reaching the
01:16conclusion that Congress would not give broad rulemaking authority to an agency just based on a few words or a
01:28short, ambiguous phrase.
01:29The idea is that if Congress is granting agency rulemaking authority, it would be clear in doing so, and to
01:37the extent that a statute isn't clear in that respect, the courts can sometimes potentially find that the major questions
01:46doctrine was violated.
01:47So it's sort of the major questions doctrine is kind of a subset of the non-delegation doctrine.
01:53Would that be fair?
01:54I think, yes, that would.
01:55And basically, the major questions doctrine just says, look, Congress can give a regulatory agency, the executive branch, power over
02:06a major question of social significance.
02:10But if Congress is going to do it, they've got to be clear.
02:13They've got to say it big as Dallas.
02:15They can't just imply it, right?
02:17That's correct, Senator.
02:18Okay.
02:19All right.
02:19We'll clear that up.
02:20Tell me what a suspect classification is and how you get to be one.
02:25Suppose I want to be a suspect classification.
02:28What do I have to do?
02:29Well, suspect classification wouldn't necessarily refer to a person, but rather to the idea that in different contexts, it would
02:37be inappropriate to treat people differently based on a suspect's character.
02:45But to get to be a suspect classification or a part of one, I agree with you, it's not just
02:53a person.
02:56What requirements do you have to meet?
03:00Senator, I'm not sure exactly what requirements you're referring to, but there would be different examples, such as treating someone
03:05different based on race or sex.
03:08I know.
03:08Race and lineage, ethnic origin.
03:11But, I mean, did the Supreme Court just pick those out of the air?
03:16Well, certainly there are statutes that protect those.
03:21No, they didn't do it on a statute.
03:23Well, the Constitution prohibits the government from treating people differently based on that.
03:29The Constitution doesn't say these are the people.
03:33The Constitution doesn't define suspect classification.
03:36The Supreme Court did that, right?
03:38I think that's correct.
03:39Okay.
03:43And if I'm, for the court, arguing that a particular group is a suspect classification, what are the definitions, what
03:53are the characteristics I'm going to use to define?
03:58One is a history of discrimination, right?
04:00Yes.
04:01I'm going to show that.
04:02A history of discrimination.
04:03I think immutable characteristics.
04:05Immutable characteristics.
04:06Bingo.
04:07That's right.
04:08Right.
04:10An absence of political power.
04:15Right?
04:16I believe the court has discussed that, yes.
04:18Yeah.
04:19And that immutable, an immutable characteristic, which doesn't affect my ability or the suspect classification's ability to contribute to society.
04:31Right?
04:33That's correct.
04:35Right.
04:35And what are the suspect classifications?
04:38What are they?
04:40Yeah.
04:41Senator, I'm not sure if I could provide a list.
04:43There are only two.
04:46Race.
04:47Race and sex.
04:48Ethnic coercion.
04:49Okay.
04:49How come sex isn't a fully suspect classification?
04:55I mean, you've got women have a history of discrimination.
04:59It's an immutable characteristic unless you go get a sex change operation.
05:04Traditionally, they've been politically disadvantaged.
05:07And being a woman has nothing to do with your merit or your ability to contribute to society.
05:14So how come gender isn't a suspect classification?
05:17Senator, I'm sorry, but I don't remember the specific case, if there was one, when the court would discuss that
05:22issue or analyze it.
05:23Do you think they ought to be?
05:25Certainly.
05:26It's not a gavel out here.
05:28It's not like a slight tapping out here.
05:31Go ahead.
05:31Can you finish answering?
05:33Give an answer, and then we want to quickly go to Blumenthal.
05:36Thank you, Chair.
05:37Certainly, women should be protected from discrimination.
05:40It's important to have laws of that nature as to whether they should be deemed to be a suspect classification
05:47in the specific context you're talking about.
05:50If that has not already been decided by the court, it would be inappropriate for me to give, I guess,
05:55an advisory opinion on that issue.
05:56But women certainly should not be subject to discrimination or different treatment by the government.
06:00Okay.
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