Why does Congress hand power to agencies? Gwen and Marc compare delegation to leaving instructions for a babysitter—trust plus judgment. They trace how this practical necessity shaped everything from Hamilton’s Treasury memos to the EPA’s air-quality standards.
Gwen and Marc unpack why Congress can’t—and shouldn’t—do it all. Through stories of early Treasury circulars and modern environmental regulation, they show how delegation lets experts turn broad legislative goals into concrete rules that adapt with science and circumstance.
Key Concepts: Delegation | Agency Expertise | EPA | Clean Air Act | Quasi-Legislative Power
Examples: EPA particulate-matter rules, Hamilton’s 1792 customs letters
Takeaway: Delegation isn’t a flaw—it’s the mechanism that lets democratic government scale and respond to complexity.
00:00:13 --> 00:00:16 Hello and welcome to Administrative Remedies,
00:00:16 --> 00:00:18 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 --> 00:00:22 College of Law. I'm Gwendolyn Savitz, an associate
00:00:22 --> 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 at the College of Law. We'll
00:00:29 --> 00:00:31 be breaking down complex doctrines with real
00:00:31 --> 00:00:33 -life analogies and examples to demystify the
00:00:33 --> 00:00:35 world of administrative law for everyone trying
00:00:35 --> 00:00:37 to understand how government actually works.
00:00:37 --> 00:00:39 Agencies are the main way that the federal government
00:00:39 --> 00:00:42 gets things done. And it's not through Congress
00:00:42 --> 00:00:44 for reasons we'll be addressing over the course
00:00:44 --> 00:00:46 of this entire series. In a modern, complex society,
00:00:47 --> 00:00:49 government can't function without groups of people
00:00:49 --> 00:00:52 who specialize, who build expertise, and who
00:00:52 --> 00:00:54 can actually carry out the big picture goals
00:00:54 --> 00:00:56 set by Congress. But today we're going deeper.
00:00:57 --> 00:01:00 That's right. Today we're talking about why Congress
00:01:00 --> 00:01:03 has to hand power over to the agencies. We're
00:01:03 --> 00:01:06 talking about the necessity of delegation. So
00:01:06 --> 00:01:09 let's talk about delegation. What do you mean
00:01:09 --> 00:01:12 by delegation? Let's think back to when the kids
00:01:12 --> 00:01:14 are younger, you've hired a babysitter. What
00:01:14 --> 00:01:17 kind of instructions would you give the babysitter?
00:01:17 --> 00:01:20 Well, we would say things like bedtimes at 8,
00:01:20 --> 00:01:23 help yourself to whatever you want in the fridge,
00:01:24 --> 00:01:27 make sure the dog goes outside, and we'll be
00:01:27 --> 00:01:30 home by 10 p .m. Okay, great. So what happens
00:01:30 --> 00:01:32 when 15 minutes after you've left, the kids are
00:01:32 --> 00:01:35 hungry? Is this dinner time? Are they allowed
00:01:35 --> 00:01:37 to have a snack? What are they allowed to have
00:01:37 --> 00:01:39 as a snack? There are going to be all of these
00:01:39 --> 00:01:41 issues that keep coming up, and that will continue
00:01:41 --> 00:01:44 the entire day. Theoretically, the babysitter
00:01:44 --> 00:01:46 could call you with questions for every single
00:01:46 --> 00:01:48 one of these. How excited are you going to be
00:01:48 --> 00:01:50 when you get a call from the babysitter five
00:01:50 --> 00:01:52 minutes after you've left saying, the kids are
00:01:52 --> 00:01:55 hungry, can I give them carrots? So I see where
00:01:55 --> 00:01:57 this is going. Is this about giving autonomy
00:01:57 --> 00:02:00 to the people that we've asked to make decisions
00:02:00 --> 00:02:03 to make those decisions as they see appropriate?
00:02:03 --> 00:02:06 somewhat. It's saying that you have to do that
00:02:06 --> 00:02:09 because there's no way to possibly get around
00:02:09 --> 00:02:11 all of these decisions that are going to come
00:02:11 --> 00:02:13 up. So you could have given the babysitter much
00:02:13 --> 00:02:15 more detailed instructions. You could have said,
00:02:15 --> 00:02:17 for dinner, have the frozen pizza in the fridge.
00:02:18 --> 00:02:19 There's ice cream for dessert. Start getting
00:02:19 --> 00:02:21 ready for bed at 730. Brush their teeth. Get
00:02:21 --> 00:02:25 their pajamas on. But how much ice cream? What
00:02:25 --> 00:02:27 happens if the kids eat all the pizzas? The babysitter
00:02:27 --> 00:02:30 allowed to eat anything. What kind of TV can
00:02:30 --> 00:02:33 they watch? If we had to map out all of those
00:02:33 --> 00:02:35 little decisions, we would have an intractable
00:02:35 --> 00:02:38 document that can never be functional for the
00:02:38 --> 00:02:41 babysitter to actually use. Right. And you still
00:02:41 --> 00:02:43 wouldn't even be able to come up with every issue
00:02:43 --> 00:02:45 that would come up. This is the whole idea. When
00:02:45 --> 00:02:48 you have the babysitter come, you are inherently
00:02:48 --> 00:02:51 saying you are going to need to make some of
00:02:51 --> 00:02:53 these decisions and we trust you to do that.
00:02:53 --> 00:02:55 So if we're thinking about that, agencies work
00:02:55 --> 00:02:58 the same way. Just like you can't specify every
00:02:58 --> 00:03:00 single thing that the babysitter is going to
00:03:00 --> 00:03:02 need to decide that night, Congress can't specify
00:03:02 --> 00:03:04 every detail that agencies will need to decide
00:03:04 --> 00:03:07 in advance. Circumstances can also change, and
00:03:07 --> 00:03:09 we need the agencies to be able to adapt to that.
00:03:09 --> 00:03:12 Just like you can't possibly give every detail
00:03:12 --> 00:03:14 to the babysitter before you leave for the night,
00:03:14 --> 00:03:16 Congress can't possibly give every detail to
00:03:16 --> 00:03:17 agencies for the stuff that they're supposed
00:03:17 --> 00:03:19 to do. Right. That would be strange. We don't
00:03:19 --> 00:03:22 elect people because they are experts in the
00:03:22 --> 00:03:25 environment. We elect people because they understand
00:03:25 --> 00:03:28 or supposedly understand how government's supposed
00:03:28 --> 00:03:32 to run. Exactly. Congress is filled with generalists.
00:03:32 --> 00:03:34 Agencies, in contrast, are the specialists. This
00:03:34 --> 00:03:36 is the expertise that we talked about last time.
00:03:36 --> 00:03:37 They're the ones who are in a position to be
00:03:37 --> 00:03:40 making a lot of these detailed decisions. So
00:03:40 --> 00:03:43 how does Congress decide what decisions get delegated
00:03:43 --> 00:03:46 to the agencies to make versus what decisions
00:03:46 --> 00:03:49 they make as a part of laws? Generally, when
00:03:49 --> 00:03:52 Congress is deciding on laws, there are big goals
00:03:52 --> 00:03:56 they want to have. Like, we want clean air. It's
00:03:56 --> 00:03:58 really hard for Congress to figure out exactly
00:03:58 --> 00:04:02 what clean air means. And giving too detailed
00:04:02 --> 00:04:04 instructions to the agencies can actually prevent
00:04:04 --> 00:04:07 the agencies from adapting to things that happen
00:04:07 --> 00:04:09 in the future. So the legislation, the legislation
00:04:09 --> 00:04:13 sets out the big parameters, the big goals of
00:04:13 --> 00:04:15 what the agencies are doing. And the regulations
00:04:15 --> 00:04:18 that the agencies implement are the pathways
00:04:18 --> 00:04:21 that they're going to do it through. Yes, exactly.
00:04:21 --> 00:04:23 So when you have the babysitter. You're really
00:04:23 --> 00:04:25 excited when the babysitter is brushing your
00:04:25 --> 00:04:27 kid's teeth at night, assuming your kids are
00:04:27 --> 00:04:29 the right age for that. You'd be really concerned
00:04:29 --> 00:04:32 if the babysitter stormed in off the street one
00:04:32 --> 00:04:34 day and started brushing your kid's teeth. When
00:04:34 --> 00:04:36 agencies are acting under this, they're acting
00:04:36 --> 00:04:38 under the authority they've been given from Congress,
00:04:38 --> 00:04:41 not them deciding to go rogue and start brushing
00:04:41 --> 00:04:43 random people's teeth. So agencies can exceed
00:04:43 --> 00:04:45 their authority. They can, and then they get
00:04:45 --> 00:04:47 in trouble for that, and what they've done is
00:04:47 --> 00:04:49 considered invalid. So let's talk about some
00:04:49 --> 00:04:51 terms that have come up around administrative
00:04:51 --> 00:04:57 law in the news lately. So what is quasi -legislative
00:04:57 --> 00:05:00 power? So we've talked before about how Congress
00:05:00 --> 00:05:03 has a legislative power, the president has the
00:05:03 --> 00:05:05 executive power, and the courts have the judicial
00:05:05 --> 00:05:08 power. Quasi -legislative power is the power
00:05:08 --> 00:05:11 that agencies have to make rules. It's quasi
00:05:11 --> 00:05:13 -legislative because they're acting like a legislature
00:05:13 --> 00:05:15 in the sense that they're making these forward
00:05:15 --> 00:05:17 -looking decisions. But they're not the legislature,
00:05:18 --> 00:05:21 so it's just quasi. So why then do we delegate
00:05:21 --> 00:05:25 if agencies have this both semi -legislative
00:05:25 --> 00:05:28 and judicial power about how they act? So they
00:05:28 --> 00:05:31 can't act without power from Congress. They need
00:05:31 --> 00:05:33 the delegation. Again, we don't want agencies
00:05:33 --> 00:05:35 storming into random people's houses and brushing
00:05:35 --> 00:05:38 random people's teeth. We want them acting in...
00:05:38 --> 00:05:41 the specific role that they've been given. We
00:05:41 --> 00:05:44 also want to make sure that these decisions are
00:05:44 --> 00:05:46 being made by the people with the expertise.
00:05:47 --> 00:05:49 So give me a real life example about how this
00:05:49 --> 00:05:52 has happened. Let's look at what Congress said
00:05:52 --> 00:05:55 with the EPA. What did Congress actually say?
00:05:55 --> 00:05:58 National primary ambient air quality standards
00:05:58 --> 00:06:02 shall be ambient air quality standards, the attainment
00:06:02 --> 00:06:04 and maintenance of which in the judgment of the
00:06:04 --> 00:06:07 administrator based on such criteria and allowing
00:06:07 --> 00:06:10 an adequate margin of safety are requisite to
00:06:10 --> 00:06:13 protect the public health. Requisite to protect
00:06:13 --> 00:06:15 the public health with an adequate margin of
00:06:15 --> 00:06:19 safety. That's that's pretty vague. It is. They're
00:06:19 --> 00:06:22 not saying. what pollutants they're concerned
00:06:22 --> 00:06:24 about. They're not saying the levels that we
00:06:24 --> 00:06:26 should be concerned about for those. All they're
00:06:26 --> 00:06:28 saying is essentially we want clean air. So how
00:06:28 --> 00:06:32 does the EPA figure this out? The EPA uses scientific
00:06:32 --> 00:06:35 expertise to try and figure out what's causing
00:06:35 --> 00:06:38 harm and the levels that it's causing harm at.
00:06:38 --> 00:06:40 So they can study the health effects, they can
00:06:40 --> 00:06:44 review medical literature, they can analyze epidemiological
00:06:44 --> 00:06:47 studies, they can consult with scientists, doctors,
00:06:48 --> 00:06:50 and try and figure out... What is in the air
00:06:50 --> 00:06:53 that's causing problems? And also, what can we
00:06:53 --> 00:06:56 realistically fix? So Congress didn't write that
00:06:56 --> 00:06:59 number into law. Right. Congress didn't say exactly
00:06:59 --> 00:07:02 what should be regulated. And that's a good thing.
00:07:03 --> 00:07:06 When this act was passed, people didn't really
00:07:06 --> 00:07:09 know that small particulate matter, PM 2 .5,
00:07:09 --> 00:07:12 could cause problems. That wasn't even on people's
00:07:12 --> 00:07:15 radar at the time. But since then, the EPA has
00:07:15 --> 00:07:17 started to regulate it and increased how stringently
00:07:17 --> 00:07:20 it's regulating it because they've realized that
00:07:20 --> 00:07:22 it does cause problems and it's something that
00:07:22 --> 00:07:25 can be fixed. So standards can change. They do.
00:07:25 --> 00:07:27 And that's one of the really important things
00:07:27 --> 00:07:30 about agencies. If we have Congress giving really
00:07:30 --> 00:07:32 explicit instructions, that will permanently
00:07:32 --> 00:07:34 lock in whatever those permanent instructions
00:07:34 --> 00:07:39 are. So the same statute that mandates the agency
00:07:39 --> 00:07:42 to protect public health leads to different specific
00:07:42 --> 00:07:46 numbers that science advances. Yes. As science
00:07:46 --> 00:07:48 advances, as we find out more things that cause
00:07:48 --> 00:07:51 problems, as we find out more ways to control
00:07:51 --> 00:07:55 what's causing problems, the EPA... can change
00:07:55 --> 00:07:57 what it's regulating and change how strictly
00:07:57 --> 00:08:00 it's regulating it. How specific do these regulations
00:08:00 --> 00:08:04 get? Very specific. If we're thinking about coal
00:08:04 --> 00:08:07 -fired power plants, the EPA is going to be very
00:08:07 --> 00:08:09 clear. They're not just saying reduce air pollution
00:08:09 --> 00:08:11 from these. They're putting maximum emission
00:08:11 --> 00:08:15 rates for sulfur dioxide, nitrogen oxides, particulate
00:08:15 --> 00:08:19 matter, measured in pounds per million BTU of
00:08:19 --> 00:08:24 heat, how much heat the coal powers. coal -fired
00:08:24 --> 00:08:26 power plant is actually producing. They've got
00:08:26 --> 00:08:29 monitoring requirements in place. They have rules
00:08:29 --> 00:08:31 on how frequently the facilities have to test
00:08:31 --> 00:08:33 their emissions. They have rules on what happens
00:08:33 --> 00:08:36 if they exceed the limits. It's all really, really
00:08:36 --> 00:08:39 detailed. None of that detail is in the statute.
00:08:39 --> 00:08:43 Congress said protect public health. The EPA
00:08:43 --> 00:08:46 translated that into enforceable technical standards
00:08:46 --> 00:08:49 that power plants must now follow. And then these
00:08:49 --> 00:08:52 standards affect everyday life. They absolutely
00:08:52 --> 00:08:56 do. Air is incredibly cleaner than it was when
00:08:56 --> 00:08:59 we were first passing this act. Lead levels are
00:08:59 --> 00:09:02 down 99 % since the 70s, in large part because
00:09:02 --> 00:09:05 we phase lead out of gas. Sulfur dioxide is down
00:09:05 --> 00:09:08 90%. You can see further in cities because we've
00:09:08 --> 00:09:10 reduced a lot of the components of smog. It's
00:09:10 --> 00:09:12 made a big difference. And it wasn't Congress
00:09:12 --> 00:09:15 that wrote these rules that achieved this. They
00:09:15 --> 00:09:18 set the goal of having clean air. They delegated
00:09:18 --> 00:09:20 this to the Environmental Protection Agency.
00:09:20 --> 00:09:22 the technical work of determining what clean
00:09:22 --> 00:09:25 means and how to achieve it. So what delegation
00:09:25 --> 00:09:27 does is it allows the Environmental Protection
00:09:27 --> 00:09:32 Agency to keep pace with science. Yes. And as
00:09:32 --> 00:09:35 we learn about other pollutants that could cause
00:09:35 --> 00:09:37 problems, EPA could take action on that. This
00:09:37 --> 00:09:41 allows it to change with the times. So when did
00:09:41 --> 00:09:43 this all start? Is this just a modern function
00:09:43 --> 00:09:46 of governance? When we think about... The rise
00:09:46 --> 00:09:48 of the administrative state, you generally say
00:09:48 --> 00:09:52 it starts happening in the 30s. But this kind
00:09:52 --> 00:09:53 of thing has been going on since the very beginning.
00:09:54 --> 00:09:57 The very first Congress already was having to
00:09:57 --> 00:10:01 delegate authority. So like what? What kinds
00:10:01 --> 00:10:04 of authority did Congress delegate? All right.
00:10:04 --> 00:10:07 So Congress is trying to raise money. There are
00:10:07 --> 00:10:10 very few ways Congress can raise money in 1789.
00:10:10 --> 00:10:16 So they passed the tariff act. So even in 1789,
00:10:16 --> 00:10:19 they couldn't spell everything out. They couldn't,
00:10:19 --> 00:10:23 but they tried. So let's look at some of the
00:10:23 --> 00:10:27 things that they managed to put in. All right.
00:10:27 --> 00:10:29 So when we look at the tariff act, there are
00:10:29 --> 00:10:32 a few things that stick out. On cheese per pound,
00:10:32 --> 00:10:35 four cents. On all shoes, slippers, or galoshes
00:10:35 --> 00:10:38 made of leather per pair, seven cents. On all
00:10:38 --> 00:10:41 shoes or slippers made of silk or stuff, pair,
00:10:41 --> 00:10:45 ten cents. On shoe or knee buckles, on playing
00:10:45 --> 00:10:48 cards per pack, 10 cents. So they've been really
00:10:48 --> 00:10:51 detailed. This is far more detailed than we could
00:10:51 --> 00:10:53 possibly expect a Congress to be with legislation
00:10:53 --> 00:10:56 that's being passed now. They tried to make all
00:10:56 --> 00:10:58 of these things explicit, but there were still
00:10:58 --> 00:11:00 gaps. How do you decide whether something is
00:11:00 --> 00:11:04 made of leather or made of silk if it has both?
00:11:04 --> 00:11:08 Or a lot of other issues that came up in customs.
00:11:09 --> 00:11:13 How did they decide? Alexander Hamilton was in
00:11:13 --> 00:11:15 charge of the treasury. Customs was under the
00:11:15 --> 00:11:19 treasury. So Hamilton decided he was going to
00:11:19 --> 00:11:21 need to start unifying what was going on at the
00:11:21 --> 00:11:25 ports. And this is the letter that he sent to
00:11:25 --> 00:11:27 the customs officials telling them this was going
00:11:27 --> 00:11:29 to start happening. In a treasury circular to
00:11:29 --> 00:11:35 the collectors of customs on July 20, 1792. Alexander
00:11:35 --> 00:11:37 Hamilton said the act constituting the Treasury
00:11:37 --> 00:11:41 Department expressly makes it the duty of the
00:11:41 --> 00:11:43 head of the department to superintend the collection
00:11:43 --> 00:11:47 of revenue. The power of superintending the collection
00:11:47 --> 00:11:50 of revenue as incident to the duty of doing it
00:11:50 --> 00:11:53 comprises, in my opinion, among a variety of
00:11:53 --> 00:11:56 particulars not necessary to be specified, the
00:11:56 --> 00:11:59 right of setting for the government of the officers
00:11:59 --> 00:12:02 the construction of laws relating to revenue
00:12:02 --> 00:12:05 in all cases of doubt. In all cases of doubt,
00:12:05 --> 00:12:07 that's really broad. This is really broad. What
00:12:07 --> 00:12:10 he's saying is I'm in charge of the Treasury.
00:12:10 --> 00:12:13 I'm in charge of customs and issues have come
00:12:13 --> 00:12:15 up. I need to make sure that everybody is doing
00:12:15 --> 00:12:17 the same thing. Somebody has to make that decision
00:12:17 --> 00:12:20 and it's going to be me. But he's making a policy
00:12:20 --> 00:12:23 judgment. Yes, he's making judgments about all
00:12:23 --> 00:12:25 of these issues that are coming up that Congress
00:12:25 --> 00:12:28 didn't specify in the really detailed statute
00:12:28 --> 00:12:31 they passed that tried to put exact tariffs on
00:12:31 --> 00:12:35 every good. So is that really helpful or beneficial
00:12:35 --> 00:12:38 for the government to be able to have that broad
00:12:38 --> 00:12:42 lane of authority given to a department? Again,
00:12:42 --> 00:12:45 it is impossible for government to act without
00:12:45 --> 00:12:48 it. This wasn't something that Congress was really
00:12:48 --> 00:12:51 contemplating when the act was passed. They probably
00:12:51 --> 00:12:53 thought this would be pretty ministerial, but
00:12:53 --> 00:12:57 it didn't end up being that way. So it's really
00:12:57 --> 00:13:01 actually a burden. to think that Congress has
00:13:01 --> 00:13:06 to write all the specifics into laws? It is absolutely
00:13:06 --> 00:13:08 impossible. So we can see the kinds of things
00:13:08 --> 00:13:12 that were coming up. Like, for instance, when
00:13:12 --> 00:13:14 people were bringing things in barrels, we didn't
00:13:14 --> 00:13:17 have uniform shipping containers. Things are
00:13:17 --> 00:13:20 coming in on lots of different homemade size
00:13:20 --> 00:13:23 things. If you're bringing salted pork over in
00:13:23 --> 00:13:25 a big barrel, how are you going to figure out
00:13:25 --> 00:13:27 how much the barrel weighs so you can figure
00:13:27 --> 00:13:28 out how much you need to charge for the salted
00:13:28 --> 00:13:30 pork? This kind of thing kept coming up over
00:13:30 --> 00:13:32 and over again, and different customs offices
00:13:32 --> 00:13:36 were doing it differently. So these were the
00:13:36 --> 00:13:39 types of things that Hamilton was trying to unify
00:13:39 --> 00:13:41 so that regardless of the port people went to,
00:13:42 --> 00:13:43 they would be facing the same thing when they
00:13:43 --> 00:13:46 got there. So then the next time someone says
00:13:46 --> 00:13:48 Congress should just write more specific laws.
00:13:49 --> 00:13:52 They can't. They could certainly write more specific
00:13:52 --> 00:13:54 laws than what they have, but they could never
00:13:54 --> 00:13:56 write laws that were so specific they didn't
00:13:56 --> 00:13:59 actually need to delegate authority. Well. Sounds
00:13:59 --> 00:14:01 like we've covered that. What do we have coming
00:14:01 --> 00:14:05 up next episode? Next time, we're talking about
00:14:05 --> 00:14:08 the restrictions on when Congress can delegate
00:14:08 --> 00:14:11 authority, and that is the non -delegation doctrine.
00:14:11 --> 00:14:13 We will see you then.