In Biden v. Nebraska, Justice Barrett wrote a concurrence about the major question doctrine. Her analysis invoked an example that any parent could relate to:
Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: "Make sure the kids have fun." Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter's trip consistent with the parent's instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent's instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park. If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to "make sure the kids have fun."
When I read this example, I thought, yeah, that makes sense. As a parent of two young children, if I gave a babysitter my credit card and said "make sure the kids have fun," and she took them to an amusement park, I would be incensed, and would almost certainly fire the babysitter. I distinctly remember when I was about eight years old my parents hired a babysitter to watch me and my younger sister. They gave the babysitter some cash to buy food. The babysitter drove to a nearby convenience store and bought some food, including a small, single-serve container of ice cream. (If my memory serves, it was vanilla Häagen-Dazs). When we got home, the baby sitter refused to share the ice cream with us. When our parents came back, we told them about the ice cream incident. They were not happy, and they did not hire that baby sitter again. I asked my dad what would happen if our babysitter had taken us on a road trip to Six Flags without express authorization. He said they probably would have called the police and accused her of kidnapping the kids. Indeed, since Six Flags was in New Jersey, there would have been an interstate crime!
