After 1935, the Supreme Court mostly gave up enforcing the Nondelegation Doctrine — but it didn’t give agencies unlimited power. In this episode, Gwen and Marc use relatable examples — a micromanaging homeowners association and an overzealous parks director — to explain how an “intelligible principle” keeps delegation from turning into dictatorship. From HOA lawn rules to broadband speeds, they show how Congress can give agencies discretion without letting them run wild.
They walk through real-world statutes that rely on this idea — from OSHA’s “reasonably necessary and appropriate” safety rules to the FCC’s “public interest, convenience and necessity” standard — and discuss how courts review those limits. The conversation ranges from the Benzene case and generic-drug bioequivalence to broadband definitions that evolve as technology changes.
Key Concepts: Intelligible Principle | Delegation Boundaries | OSHA | FCC | SEC | Benzene Case | Generic Drugs | Agency Flexibility Examples: HOA analogy | Youth sports director analogy | EPA air-quality standards | FDA bioequivalence | FCC broadband speed
Takeaway: Delegation is inevitable — but guardrails matter. An intelligible principle ensures expertise can flourish without collapsing into favoritism or tyranny.
🎧 Listen on Spotify | Apple Podcasts | remediespodcast.com
00:00:13 --> 00:00:15 Hello, and welcome to Administrative Remedies,
00:00:15 --> 00:00:17 because you can't fix what you don't understand.
00:00:18 --> 00:00:20 Brought to you in part by the University of Tulsa
00:00:20 --> 00:00:23 College of Law. I'm Gwendolyn Savitz, an associate
00:00:23 --> 00:00:25 professor here at TU and the associate dean of
00:00:25 --> 00:00:27 research and intellectual life. And I'm Mark
00:00:27 --> 00:00:29 Rourke. I'm the dean of the College of Law. We'll
00:00:29 --> 00:00:31 be breaking down complex doctrines with real
00:00:31 --> 00:00:34 -life analogies and examples to demystify the
00:00:34 --> 00:00:36 world of administrative law for everyone trying
00:00:36 --> 00:00:38 to understand how government actually works.
00:00:38 --> 00:00:40 Agencies are the main way the federal government
00:00:40 --> 00:00:43 gets things done. And it's not through Congress
00:00:43 --> 00:00:44 for reasons we'll be addressing over the course
00:00:44 --> 00:00:47 of this series. So last time we talked about
00:00:47 --> 00:00:49 the non -delegation doctrine. The Supreme Court
00:00:49 --> 00:00:54 had pretty much given up enforcing it after 1935,
00:00:54 --> 00:00:57 the one and only year they cared about it. And
00:00:57 --> 00:01:00 that courts now will uphold extremely broad delegations,
00:01:00 --> 00:01:03 like whether something is in the public interest
00:01:03 --> 00:01:07 or whether it's fair and equitable. But even
00:01:07 --> 00:01:09 though the bar is really low, there is still
00:01:09 --> 00:01:11 a bar. That's what we're talking about today.
00:01:12 --> 00:01:14 We're talking about the intelligible principle.
00:01:14 --> 00:01:18 The difference between a delegation with an intelligible
00:01:18 --> 00:01:21 principle and one without can mean the difference
00:01:21 --> 00:01:23 between predictable governance and arbitrary
00:01:23 --> 00:01:25 tyranny. So we're going to start with a couple
00:01:25 --> 00:01:28 examples that might hit a little closer to home
00:01:28 --> 00:01:32 and help this make sense. So example number one,
00:01:32 --> 00:01:34 something property people love, the homeowners
00:01:34 --> 00:01:38 association. Oh, the elected HOA, five members
00:01:38 --> 00:01:41 who want to maintain property values and keep
00:01:41 --> 00:01:43 their positions of power within their own little
00:01:43 --> 00:01:47 fiefdom. So in this hypothetical homeowners association,
00:01:47 --> 00:01:50 we have an elected board. The board wants to
00:01:50 --> 00:01:54 maintain property values. So they delegate all
00:01:54 --> 00:01:58 the landscape stuff to Bob. So Bob, your next
00:01:58 --> 00:02:02 door neighbor, is really concerned about how
00:02:02 --> 00:02:05 your lawn impacts other people's property values.
00:02:06 --> 00:02:09 He looks at things like how height the lawns
00:02:09 --> 00:02:12 can grow and the fact that everyone needs at
00:02:12 --> 00:02:15 least one tree in their front yard and that everyone
00:02:15 --> 00:02:17 must have a lawn and that you can't do natural
00:02:17 --> 00:02:21 landscaping. So Bob is really going rogue here.
00:02:21 --> 00:02:23 You don't have any idea what decisions he's going
00:02:23 --> 00:02:24 to make. He might make a decision for himself
00:02:24 --> 00:02:27 and something different for you. Because the
00:02:27 --> 00:02:29 way we have things now, there's no predictability.
00:02:29 --> 00:02:31 You can't budget for anything. You don't know
00:02:31 --> 00:02:33 what things are going to cost. You don't know
00:02:33 --> 00:02:36 what the potential fines are. This is just a
00:02:36 --> 00:02:38 recipe for favoritism, discrimination and abuse
00:02:38 --> 00:02:42 of power. And while you can't vote Bob out because
00:02:42 --> 00:02:46 he wasn't elected, you could have an HOA that
00:02:46 --> 00:02:49 sets out certain standards for how you maintain
00:02:49 --> 00:02:52 your lawn. For example. Maintain appearance by
00:02:52 --> 00:02:54 ensuring lawns are mowed at least every two weeks
00:02:54 --> 00:02:57 during growing season and that front gardens
00:02:57 --> 00:03:00 don't exceed 25 % of your yard space and that
00:03:00 --> 00:03:04 fines can't exceed 50 per violation and must
00:03:04 --> 00:03:06 first have a written warning. This is a lot more
00:03:06 --> 00:03:09 specific. You can see it's still not prescribing
00:03:09 --> 00:03:12 everything. We haven't determined what would
00:03:12 --> 00:03:15 constitute overgrown. There's no specific garden
00:03:15 --> 00:03:17 design. We don't know exactly what the different
00:03:17 --> 00:03:21 seasons are, but we've done. A lot to try and
00:03:21 --> 00:03:24 address some of these rogue actions that Bob
00:03:24 --> 00:03:26 was taking. So let's think about analogy number
00:03:26 --> 00:03:29 two. Let's imagine a town council wants a youth
00:03:29 --> 00:03:32 sports department. So they appoint a parks director
00:03:32 --> 00:03:35 that says, create the youth sports program. The
00:03:35 --> 00:03:38 parks director can be Bob again. Bob is the expert.
00:03:38 --> 00:03:41 He's the one who knows all about sports. He now
00:03:41 --> 00:03:44 has virtually unlimited power here. So he can
00:03:44 --> 00:03:47 ban sports entirely based on what he likes. He
00:03:47 --> 00:03:48 might think football is too dangerous. The town
00:03:48 --> 00:03:50 shouldn't have a football team. He could make
00:03:50 --> 00:03:53 registration fees $1 . He could decide only
00:03:53 --> 00:03:56 certain neighborhoods should get teams or that
00:03:56 --> 00:03:58 we're only going to have teams for the elite
00:03:58 --> 00:04:01 players. But what if instead the council said
00:04:01 --> 00:04:04 something like administer youth sports to maximize
00:04:04 --> 00:04:09 participation while ensuring player safety? Registration
00:04:09 --> 00:04:12 fees cannot exceed a per -programs per -child
00:04:12 --> 00:04:15 cost. And each neighborhood must have equal access
00:04:15 --> 00:04:19 to facilities. Any child residing in the town
00:04:19 --> 00:04:21 can participate regardless of skill level. So,
00:04:21 --> 00:04:25 just like before, this still leaves a lot of
00:04:25 --> 00:04:28 discretion to Bob. He can still choose sports
00:04:28 --> 00:04:31 to offer. He's just choosing them based on the
00:04:31 --> 00:04:34 demand. He can... still choose when the practices
00:04:34 --> 00:04:37 are going to be. He can hire the coaches. He
00:04:37 --> 00:04:39 can determine the league structure. But when
00:04:39 --> 00:04:41 he's setting fees, he's going to need to set
00:04:41 --> 00:04:43 reasonable fees that relate to the actual cost.
00:04:44 --> 00:04:47 He can't create an elite -only team. He has guardrails
00:04:47 --> 00:04:51 around what it means to deploy this basic thing
00:04:51 --> 00:04:54 that the town council has asked him to do. Exactly.
00:04:54 --> 00:04:56 We've now given him an intelligible principle
00:04:56 --> 00:04:58 to work with. And this is something that still
00:04:58 --> 00:05:02 routinely comes up in Supreme Court cases. Here's
00:05:02 --> 00:05:05 a quote. from the Supreme Court earlier this
00:05:05 --> 00:05:08 year. In Federal Communications Commission v.
00:05:09 --> 00:05:11 Consumers Research, the court said, in examining
00:05:11 --> 00:05:14 a statute for the requisite intelligible principle,
00:05:14 --> 00:05:17 we have generally assessed whether Congress has
00:05:17 --> 00:05:20 made clear both the general policy that the agency
00:05:20 --> 00:05:23 must pursue and the boundaries of its delegated
00:05:23 --> 00:05:26 authority. And similarly, we have asked if Congress
00:05:26 --> 00:05:29 has provided sufficient standards to enable both
00:05:29 --> 00:05:31 the court and the public to ascertain whether
00:05:31 --> 00:05:34 the agency has followed the law. If Congress
00:05:34 --> 00:05:37 has done so, as we have almost always found,
00:05:37 --> 00:05:39 then we will not disturb its grant of authority.
00:05:40 --> 00:05:41 So there's a couple of things the court's saying.
00:05:42 --> 00:05:44 First, how much guidance is going to be needed
00:05:44 --> 00:05:47 depends on how much power is being delegated.
00:05:47 --> 00:05:50 And even for massive delegations that affect
00:05:50 --> 00:05:53 the whole economy. Congress doesn't need to be
00:05:53 --> 00:05:55 super specific about where to draw every line.
00:05:56 --> 00:05:59 These two principles prevent more extreme arbitrary
00:05:59 --> 00:06:01 governance, like preventing the parks director
00:06:01 --> 00:06:04 from just creating an exclusive sports league.
00:06:04 --> 00:06:07 With the EPA, for example, air quality standards
00:06:07 --> 00:06:09 must be requisite to protect the public health.
00:06:09 --> 00:06:12 Not saying exactly what they are, but whatever
00:06:12 --> 00:06:14 they are, the agency needs to be able to connect
00:06:14 --> 00:06:18 back to public health. Again, the bar is low,
00:06:18 --> 00:06:21 but there is still at least some standards. Here
00:06:21 --> 00:06:23 are some of the different types of delegation
00:06:23 --> 00:06:26 that have long been upheld. You want to read
00:06:26 --> 00:06:29 through some of them? Sure. The FCC Communications
00:06:29 --> 00:06:32 Act of 1934 said, If the commission, upon examination
00:06:32 --> 00:06:36 of any application for a station license, shall
00:06:36 --> 00:06:38 find the public interest, convenience, and necessity
00:06:38 --> 00:06:41 would be served, by granting thereof, it shall
00:06:41 --> 00:06:44 grant such an application. So in that one, they're
00:06:44 --> 00:06:45 looking at the public interest, convenience,
00:06:46 --> 00:06:49 and necessity. What about the next one? Occupational
00:06:49 --> 00:06:52 Safety and Health Administration, or OSHA, Act
00:06:52 --> 00:06:56 of 1970, Congress said the Secretary shall prescribe
00:06:56 --> 00:06:59 such rules or regulations as are reasonably necessary
00:06:59 --> 00:07:02 or appropriate to provide safe or healthful employment.
00:07:03 --> 00:07:05 All right, so these rules need to be reasonably
00:07:05 --> 00:07:07 necessary and appropriate to provide safe and
00:07:07 --> 00:07:10 healthful employment. What about the last one?
00:07:10 --> 00:07:13 In the Securities and Exchange Commission, Securities
00:07:13 --> 00:07:16 Act of 1933, the commission may create rules
00:07:16 --> 00:07:19 as necessary or appropriate in the public interest
00:07:19 --> 00:07:22 or for the protection of investors. All right.
00:07:22 --> 00:07:24 Again, we're talking about what would be in the
00:07:24 --> 00:07:25 public interest. There's a running theme here.
00:07:26 --> 00:07:28 Last time we talked about how Gorsuch is unhappy
00:07:28 --> 00:07:33 with the current broad delegations. But we've
00:07:33 --> 00:07:35 also talked about how Congress isn't really equipped
00:07:35 --> 00:07:38 to get very much more specific. It would mean
00:07:38 --> 00:07:42 relying on experts. that likely would come from
00:07:42 --> 00:07:45 industry. And there's the part that really drives
00:07:45 --> 00:07:47 some people nuts. Congress doesn't necessarily
00:07:47 --> 00:07:50 want accountability for the final decisions agencies
00:07:50 --> 00:07:53 make. In theory, few people are against clean
00:07:53 --> 00:07:56 air. It's only once you start talking about exactly
00:07:56 --> 00:07:59 how much sulfur dioxide you're regulating and
00:07:59 --> 00:08:01 what will cost the people that we really start
00:08:01 --> 00:08:05 to care. This is one of the issues that comes
00:08:05 --> 00:08:08 up repeatedly. Sometimes Congress just doesn't
00:08:08 --> 00:08:11 know enough to be really specific. Sometimes
00:08:11 --> 00:08:14 Congress doesn't want to be really specific because
00:08:14 --> 00:08:16 different people have opposing views on what
00:08:16 --> 00:08:19 it should be. And it's easier to just say, let's
00:08:19 --> 00:08:21 regulate clean air than to specify exactly what
00:08:21 --> 00:08:24 should be regulated. Setting pollution standards
00:08:24 --> 00:08:27 can be both technical and political. And courts
00:08:27 --> 00:08:30 can also choose how they're going to interpret
00:08:30 --> 00:08:37 this. Let's talk about the benzene case. It's
00:08:37 --> 00:08:40 a really important carcinogen. It's in gas. It's
00:08:40 --> 00:08:43 in synthetic fibers. It's in dyes. It's in plastics.
00:08:44 --> 00:08:47 It's really widely used. So this isn't something
00:08:47 --> 00:08:50 that could just be cut out completely. Part of
00:08:50 --> 00:08:53 the requirement to regulate toxic chemicals is
00:08:53 --> 00:08:55 supposed to show that the standard which most
00:08:55 --> 00:08:58 adequately assures to the extent feasible on
00:08:58 --> 00:09:01 the basis of the best available evidence that
00:09:01 --> 00:09:03 no employee will suffer material impairment of
00:09:03 --> 00:09:06 health or functional capacity. Even if such an
00:09:06 --> 00:09:09 employee has regular exposure to the hazard dealt
00:09:09 --> 00:09:11 with by such standard for the period of his working
00:09:11 --> 00:09:14 life, development of standards under this subsection
00:09:14 --> 00:09:17 shall be based upon research, demonstrations,
00:09:17 --> 00:09:20 experiments, and such other information as may
00:09:20 --> 00:09:23 be appropriate. We've already established that
00:09:23 --> 00:09:25 this was a carcinogen. The agency knew that.
00:09:25 --> 00:09:28 And so they said, given that this is a carcinogen,
00:09:28 --> 00:09:31 there is no safe level. So we are going to set
00:09:31 --> 00:09:35 it as low as we possibly can. The lowest technologically
00:09:35 --> 00:09:39 feasible limit is one part per million. The standard
00:09:39 --> 00:09:42 had been 10. They dropped it from that. So the
00:09:42 --> 00:09:45 court was trying to determine whether this was
00:09:45 --> 00:09:46 something they could legitimately do. You want
00:09:46 --> 00:09:49 to read what it said? The court said that they
00:09:49 --> 00:09:51 were going to require the secretary to find as
00:09:51 --> 00:09:54 a threshold matter that the toxic substance in
00:09:54 --> 00:09:57 question poses a significant health risk. in
00:09:57 --> 00:09:59 the workplace and that a new lower standard is
00:09:59 --> 00:10:02 therefore reasonably necessary or appropriate
00:10:02 --> 00:10:05 to provide safe or healthful employment in places
00:10:05 --> 00:10:08 of employment. They're reinterpreting this from
00:10:08 --> 00:10:10 just you need to determine that something is
00:10:10 --> 00:10:14 safe to you need to determine that what is currently
00:10:14 --> 00:10:18 there is dangerous and that your new lower standard
00:10:18 --> 00:10:20 will fix that problem. They're constraining the
00:10:20 --> 00:10:22 agency. They were invalidating this decision
00:10:22 --> 00:10:25 to go down to one. And part of that is because
00:10:25 --> 00:10:27 the agency is making the assumption that if something
00:10:27 --> 00:10:31 is bad, there is no safe limit of whatever that
00:10:31 --> 00:10:34 bad thing is. But it's common knowledge that
00:10:34 --> 00:10:37 the dose makes the poison. So anything can be
00:10:37 --> 00:10:39 dangerous if you get it at a high enough level,
00:10:39 --> 00:10:42 including water. Let's talk about something that
00:10:42 --> 00:10:44 you might not realize is because of administrative
00:10:44 --> 00:10:48 law, generic drugs. I didn't know generic drugs
00:10:48 --> 00:10:51 were regulated by administrative law. Everything
00:10:51 --> 00:10:53 is regulated by administrative law. But what
00:10:53 --> 00:10:57 are generic drugs? Way cheaper. A lot cheaper,
00:10:57 --> 00:10:59 especially since your insurance company will
00:10:59 --> 00:11:03 likely cover it. Generic drugs are way cheaper,
00:11:03 --> 00:11:06 but have the same active ingredient. So you know
00:11:06 --> 00:11:10 they're the same because the FDA created bioequivalent
00:11:10 --> 00:11:13 standards. Under the statute, FDA is just supposed
00:11:13 --> 00:11:16 to make sure drugs are safe and effective. That's
00:11:16 --> 00:11:19 a pretty broad, intelligible principle. But they've
00:11:19 --> 00:11:22 used that to determine exactly how to make sure
00:11:22 --> 00:11:25 that generic drugs will be safe and effective.
00:11:25 --> 00:11:27 And they've decided that means that they must
00:11:27 --> 00:11:29 deliver the same amount of the active ingredient
00:11:29 --> 00:11:33 into the bloodstream at the same rate as the
00:11:33 --> 00:11:36 brand name drug within certain limits. The generic
00:11:36 --> 00:11:40 has to be between 80 % and 125 % of the brand
00:11:40 --> 00:11:44 name's bioavailability with 90 % confidence intervals.
00:11:45 --> 00:11:48 Generally, in order to get within this 90 % confidence
00:11:48 --> 00:11:52 interval, the generic is within 3 % to 4 % of
00:11:52 --> 00:11:54 the brand name drug. Before this standard was
00:11:54 --> 00:11:57 set, a lot of states wouldn't allow generic substitution
00:11:57 --> 00:11:59 because they couldn't be confident that the generic
00:11:59 --> 00:12:01 was actually the same as the brand name drug.
00:12:02 --> 00:12:04 One of the important things about the intelligible
00:12:04 --> 00:12:08 principle is that by not locking agencies into
00:12:08 --> 00:12:11 specific numbers, it means that the agency is
00:12:11 --> 00:12:14 allowed to evolve with the times. What counts
00:12:14 --> 00:12:18 as broadband? I have no idea. The FCC has repeatedly
00:12:18 --> 00:12:22 raised it. It's now up to 100 megabytes per second
00:12:22 --> 00:12:27 down. Previously, it had been 25 down. They're
00:12:27 --> 00:12:29 doing this under the authority of the Telecommunications
00:12:29 --> 00:12:33 Act of 1996. Do you know what the top home speeds
00:12:33 --> 00:12:39 were in 1996? 1996? It's got to be like under
00:12:39 --> 00:12:42 10 megabytes per second. This is the era of dial
00:12:42 --> 00:12:47 -up. 28 .8 kilobytes a second was typical. 56
00:12:47 --> 00:12:50 was high -end. Universities had faster systems,
00:12:50 --> 00:12:52 but they would have been basing this on what
00:12:52 --> 00:12:55 was available for residential houses. So if they'd
00:12:55 --> 00:12:59 said at the time that the FCC needs to make sure
00:12:59 --> 00:13:03 everybody has 56 kilobytes a second access to
00:13:03 --> 00:13:06 the internet, we would still be waiting for Sonics
00:13:06 --> 00:13:10 to download. As they continue to raise it...
00:13:10 --> 00:13:13 everybody who doesn't have whatever that level
00:13:13 --> 00:13:16 is, is in an underserved area. So by continually
00:13:16 --> 00:13:20 ratcheting it up, we're spreading faster and
00:13:20 --> 00:13:22 faster internet throughout the country. And the
00:13:22 --> 00:13:24 fact that they can change it is because we didn't
00:13:24 --> 00:13:26 have something locked in from the very beginning.
00:13:27 --> 00:13:29 So far in the series, we've been talking about
00:13:29 --> 00:13:33 the rules that agencies have created, but next
00:13:33 --> 00:13:35 time we're going to talk about how they actually
00:13:35 --> 00:13:38 make their rules. Next time, we are talking about
00:13:38 --> 00:13:40 the notice and comment rulemaking process.