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To apply it. it was applied by the majority opinion in the brown and williamson decision. its the godfather of the major rules or major questions doctrine. justice breyer wrote about it in the 1980s. the supreme court adopted that. the brown and williamson case applied it in the case you referenced, justice scalias opinion. what that opinion says is its okay for congress to delegate various matters to the executive agencies to do rules, but on major questions of major economic or social signific...

Amendment? robert bork described it as an inkblot. do you share that assessment? >> so i think the ninth amendment and the privileges and immunities clause and the supreme courts doctrine of substantive due process are three roads that someone might take that all really lead to the same destination under the precedent of the supreme court now which is that the supreme court precedent protects certain unenumerated rights so long as the rights are as the supreme court said in the gluxburg case roo...

Path, starting with the 2008 whole foods case where whole foods attempted to buy wild oats markets. very complicated, so im going to go to the fwguts of it from opinion. the majority of courts and the -- what happened here is republican majority ftc challenges the deal, and then you dissent. you apply your own pricing test to the merger. my simple question is, where did you get this pricing test? >> well, i would have affirmed the decision by the district judge in that case, which allowed the me...

I personally view this as, you know, law making from the court, the citizens united case. so im trying to figure out where you are on this. do you think contribution limits have constitutional problems, and what can congress actually do to rein in the flood of money? >> as a d.c. circuit judge, ive upheld contribution limits in two important cases. one ruling against the rnc in rnc versus fec where it was challenging limits on contributions to political parties. i rejected that challenge. in ano...

Im trying to figure that out, what legal authority actually requires a government to satisfy your standard to block a merger. i think what i remember in our discussion, you cited these nonbinding horizontal merger guidelines that you used to come up with this test. >> well, youre looking at the effect on competition and what the supreme court has told us, at least from the late 1970s s to look at the effect on consumers and whats the effect on the prices for consumers. the theory of the district...

In terms of an exercise of prosecutorial discretion. >> if a court has held a statute constitutional, do you believe that a president should have to enforce it? >> so for example, lets talk about the marijuana laws. those are constitutional, but a u.s. attorney, or the attorney general, could say, were not going to devote our resources to low-level marijuana offenses. those are perfectly constitutional. >> let me try one other example. the texas case on pre-existing conditions. the administratio...

Cited your opinion in arguing to have these charges thrown out. does that concern you at all? >> our case dealt with contribution limits. so thats what i was opining on in that case. so im not sure that there are -- the state of the law on the expenditure limits was not before us in that case. so i dont want to opine on expenditure limits. you should know that opinion was cited by -- >> well, i dont know if it was cited -- well, i dont want to talk about a pending case. my case i upheld. importa...