The Nondelegation Doctrine | Administrative Remedies — Explaining How Government Actually Works

Journey back 90 years to 1935 - the one and only year the Supreme Court decided that Congress had tried to delegate too much power.

If delegation is so useful, why can’t Congress delegate everything? Gwen and Marc explain the Nondelegation Doctrine through analogies to filmmaking and explore how Supreme Court cases—including Schechter Poultry—define the boundary between lawmaking and execution.

Gwen and Marc trace the constitutional limits on delegation, from the “sick-chicken case” to today’s administrative realities. They show how the Court balanced principle and practicality, and how agencies like the TSA apply flexible judgment while staying within statutory bounds.

Examples: Supreme Court cases (1935–1944), TSA 3-1-1 rule, shoe-screening policies

Takeaway: Congress must set the “what”; agencies decide the “how.” Nondelegation guards that line—and modern governance depends on keeping it workable.

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 --> 00:00:19 Brought to you in part by the University of Tulsa
00:00:19 --> 00:00:22 College of Law. I'm Gwendolyn Savitz, an Associate
00:00:22 --> 00:00:24 Professor here at TU and the Associate Dean of
00:00:24 --> 00:00:26 Research and Intellectual Life. And I'm Mark
00:00:26 --> 00:00:29 Roark. I'm the Dean of the College of Law. We'll
00:00:29 --> 00:00:30 be breaking down complex doctrines with real
00:00:30 --> 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 series. In the first episode, we talked
00:00:46 --> 00:00:49 about why the scale and complexity of modern
00:00:49 --> 00:00:51 government means we need agencies. Last time,
00:00:51 --> 00:00:54 we talked about how Congress has to give agencies
00:00:54 --> 00:00:56 the authority to fill in gaps that Congress can't
00:00:56 --> 00:00:59 or shouldn't specify. Today, we're talking about
00:00:59 --> 00:01:01 what stops Congress from handing over all of
00:01:01 --> 00:01:04 its power. That's the non -delegation doctrine.
00:01:04 --> 00:01:07 That's a good question. If delegation is so useful,
00:01:07 --> 00:01:09 why can't Congress just delegate everything?
00:01:11 --> 00:01:14 So let's think about it this way. You're a film
00:01:14 --> 00:01:15 producer. What are some of the things that you
00:01:15 --> 00:01:19 need to do? So I'm a producer. You are. You're
00:01:19 --> 00:01:24 a producer. Fantastic. So there's a ton we have
00:01:24 --> 00:01:27 to do if I'm producing a film. We have to secure
00:01:27 --> 00:01:29 financing. We have to hire the director and cast.
00:01:30 --> 00:01:32 We have to scout locations. We have to build
00:01:32 --> 00:01:34 the shooting schedule. We have to manage the
00:01:34 --> 00:01:37 budget, navigate union rules. handle legal contracts.
00:01:38 --> 00:01:40 I mean, the list goes on and on about how you
00:01:40 --> 00:01:45 produce a film. It does. So you might go to the
00:01:45 --> 00:01:48 cinematographer and say, great, you're the cinematographer.
00:01:48 --> 00:01:50 I've hired you to do that. You're in charge of
00:01:50 --> 00:01:52 how it looks. You can do the lighting, the camera
00:01:52 --> 00:01:54 angles, the whole visual style. That's their
00:01:54 --> 00:01:56 area of expertise is what you brought them in
00:01:56 --> 00:02:01 for. That's great. So I'm delegating the cinematography,
00:02:01 --> 00:02:05 but what about everything else? Right. So if
00:02:05 --> 00:02:07 instead you went to the cinematographer and said,
00:02:07 --> 00:02:09 great, now you're going to be in charge of securing
00:02:09 --> 00:02:12 financing, hiring the director, the cast, scouting
00:02:12 --> 00:02:14 locations, managing the budget, navigating the
00:02:14 --> 00:02:17 unions, doing all of that, suddenly you're no
00:02:17 --> 00:02:20 longer delegating. You're not really a producer
00:02:20 --> 00:02:22 anymore. I'm basically just walking off the set
00:02:22 --> 00:02:24 and letting someone else do all the work for
00:02:24 --> 00:02:27 me. Exactly. You've abdicated your role as a
00:02:27 --> 00:02:29 producer. That's what we don't want Congress
00:02:29 --> 00:02:34 doing. Why not? Why don't we want Congress just
00:02:34 --> 00:02:37 abdicating its authority to the experts? Wouldn't
00:02:37 --> 00:02:39 it be better if the experts made all the decisions,
00:02:39 --> 00:02:42 including the laws? So the problem with that
00:02:42 --> 00:02:46 is the Constitution. That damned Constitution.
00:02:46 --> 00:02:48 I know. Keeps getting in the way. You want to
00:02:48 --> 00:02:52 read what Article 1 says? So under Article 1,
00:02:52 --> 00:02:55 all legislative powers herein granted shall be
00:02:55 --> 00:02:58 vested in a Congress of the United States. That
00:02:58 --> 00:03:01 means Congress has the legislative power, like
00:03:01 --> 00:03:04 saying, You're the producer. You're responsible
00:03:04 --> 00:03:07 for the major decisions. You can delegate the
00:03:07 --> 00:03:10 cinematographer. You can delegate the costume
00:03:10 --> 00:03:13 design. You can delegate the sound mixing. You
00:03:13 --> 00:03:16 can't delegate being the producer itself, though.
00:03:16 --> 00:03:20 Exactly. So Congress has the legislative power.
00:03:20 --> 00:03:22 They're the ones who have to make the major decisions.
00:03:22 --> 00:03:26 They can delegate part of this decision, but
00:03:26 --> 00:03:29 they can't delegate the entire thing. Agencies
00:03:29 --> 00:03:31 can execute decisions and Congress can delegate
00:03:31 --> 00:03:35 the how you do something, but not the basic fundamental
00:03:35 --> 00:03:38 choice on what you're doing. So if someone is
00:03:38 --> 00:03:41 making all of the fundamental choices, then they're
00:03:41 --> 00:03:46 really the producer, not me. Exactly. Just like
00:03:46 --> 00:03:47 you're not the producer if you're not doing any
00:03:47 --> 00:03:49 of the work, we have the same concern with agencies.
00:03:50 --> 00:03:52 When we think of agencies, we think of them as
00:03:52 --> 00:03:54 being under the president as part of the executive
00:03:54 --> 00:03:56 branch. So the president can't be the legislature,
00:03:57 --> 00:03:58 and that means that neither can the agencies.
00:03:59 --> 00:04:02 So is there a case that specifically lines out
00:04:02 --> 00:04:04 how this has played out between different powers
00:04:04 --> 00:04:06 of the government? How could be that you would
00:04:06 --> 00:04:12 ask that? So tell me about the Schechter -Poultry
00:04:12 --> 00:04:15 case. All right. So we are in the middle of the
00:04:15 --> 00:04:18 Great Depression. Roosevelt is trying to get
00:04:18 --> 00:04:21 the national economy moving. Congress has passed
00:04:21 --> 00:04:25 the National Industrial Recovery Act. And let's
00:04:25 --> 00:04:28 read from a section of it. So under the National
00:04:28 --> 00:04:31 Recovery Act, the president may approve a code
00:04:31 --> 00:04:35 of fair competition for the trade or industry.
00:04:35 --> 00:04:38 If he finds that such associations and codes
00:04:38 --> 00:04:41 are not designed to promote monopolies or to
00:04:41 --> 00:04:44 eliminate or oppress small enterprises and will
00:04:44 --> 00:04:47 not operate to discriminate against them and
00:04:47 --> 00:04:49 will tend to effectuate the policy of this title.
00:04:50 --> 00:04:53 So that's pretty big. Here's what the statute
00:04:53 --> 00:04:56 said. The president can pass codes that create
00:04:56 --> 00:05:00 codes of fair competition. And we know that they're
00:05:00 --> 00:05:02 going to be codes of fair competition if they
00:05:02 --> 00:05:05 tend to effectuate the policy of the title. It
00:05:05 --> 00:05:08 doesn't say what fair competition is. It doesn't
00:05:08 --> 00:05:09 say the goals. It doesn't say what to prioritize.
00:05:10 --> 00:05:13 So we've got a bunch of different industries
00:05:13 --> 00:05:16 writing their own rules about things. It doesn't
00:05:16 --> 00:05:19 make any sense. That's basically handing over
00:05:19 --> 00:05:21 to the industry the capacity to make their own
00:05:21 --> 00:05:25 decisions. So we still do that now to some extent.
00:05:25 --> 00:05:27 We just generally don't sanction it with the
00:05:27 --> 00:05:30 president's blessing. But back then, the industry
00:05:30 --> 00:05:32 would write the code, send it to the president.
00:05:32 --> 00:05:34 The president would say, yep, looks good, and
00:05:34 --> 00:05:36 sign it into law. Why isn't that just abdicating
00:05:36 --> 00:05:39 your authority? Well, it is. That's the reason
00:05:39 --> 00:05:43 we have the case. But let's talk about the live
00:05:43 --> 00:05:45 poultry code, because that was the one causing
00:05:45 --> 00:05:48 problems here. Okay, so in the live poultry code,
00:05:49 --> 00:05:51 there was a prohibition against any method of
00:05:51 --> 00:05:53 slaughtering other than straight killing or killing
00:05:53 --> 00:05:56 on the basis of official grade. Purchasers may,
00:05:57 --> 00:06:00 however, make selection of a half -coop, coop,
00:06:00 --> 00:06:02 or coops, but shall not have the right to make
00:06:02 --> 00:06:05 any selection of particular birds. What does
00:06:05 --> 00:06:09 that mean? So they're trying to figure out how
00:06:09 --> 00:06:11 we can most effectively sell chickens. And they
00:06:11 --> 00:06:13 don't want people coming in and handpicking chickens.
00:06:14 --> 00:06:16 It was supposed to be if you need just one or
00:06:16 --> 00:06:18 two, you reach in, you grab the first chicken
00:06:18 --> 00:06:21 you touch, and that's your chicken. If you're
00:06:21 --> 00:06:23 getting a large group, you could choose an entire
00:06:23 --> 00:06:26 large group, but not more specifically than that.
00:06:26 --> 00:06:29 And also said that if you were selling these
00:06:29 --> 00:06:31 chickens, you couldn't sell them if they were
00:06:31 --> 00:06:33 sick. It makes sense. There were probably good
00:06:33 --> 00:06:36 reasons not to be selling sick chickens. But
00:06:36 --> 00:06:38 the Schechter brothers, they were letting people
00:06:38 --> 00:06:41 choose their chickens and they were selling sick
00:06:41 --> 00:06:43 chickens. They were cheaper, but they were still
00:06:43 --> 00:06:46 selling them. So this became the sick chicken
00:06:46 --> 00:06:48 case. And the court was not having any of this.
00:06:49 --> 00:06:51 The Supreme Court, when they dealt with this,
00:06:51 --> 00:06:55 talked about the impact of the Recovery Act.
00:06:55 --> 00:06:57 And they said. Section 3 of the Recovery Act
00:06:57 --> 00:07:00 is without precedent. It supplies no standards
00:07:00 --> 00:07:02 for any trade or industry or activity. It does
00:07:02 --> 00:07:05 not undertake to prescribe rules of conduct to
00:07:05 --> 00:07:08 be applied in particular states or a fact determined
00:07:08 --> 00:07:11 by appropriate administrative procedure. Instead
00:07:11 --> 00:07:13 of prescribing rules of conduct, it authorizes
00:07:13 --> 00:07:17 the making of codes to prescribe them. In view
00:07:17 --> 00:07:20 of the scope of that broad declaration and the
00:07:20 --> 00:07:22 nature of the few restrictions that are imposed,
00:07:22 --> 00:07:25 the discretion of the president in approving
00:07:25 --> 00:07:28 or prescribing codes and thus enacting laws for
00:07:28 --> 00:07:29 the government of trade and industry throughout
00:07:29 --> 00:07:32 the country is virtually unfettered. We think
00:07:32 --> 00:07:36 the code making authority thus conferred is an
00:07:36 --> 00:07:38 unconstitutional delegation of legislative power.
00:07:39 --> 00:07:41 That's a lot of words. What they're saying here
00:07:41 --> 00:07:43 is there are absolutely no standards. You've
00:07:43 --> 00:07:46 handed over entire control of industries to the
00:07:46 --> 00:07:48 industry. The president will just sign off on
00:07:48 --> 00:07:51 it. We have no idea what Congress is actually
00:07:51 --> 00:07:54 trying to do here, and this won't fly. So this
00:07:54 --> 00:07:58 was one of two cases where the Supreme Court
00:07:58 --> 00:08:00 was upset about the delegation. This was actually
00:08:00 --> 00:08:02 the second of the two. The first one happened
00:08:02 --> 00:08:05 earlier that year. That was Panama refining.
00:08:10 --> 00:08:13 President banned shipments of hot oil or oil
00:08:13 --> 00:08:15 produced in violation of state limits, but provided
00:08:15 --> 00:08:19 no standard for when or why to ban them. So no
00:08:19 --> 00:08:21 guidance at all for what the agency was to do.
00:08:22 --> 00:08:28 Exactly. And we'll see next time that these aren't
00:08:28 --> 00:08:30 really that different. What was really different
00:08:30 --> 00:08:33 at the time was the way the court viewed this.
00:08:33 --> 00:08:37 So how did the court view this? So we are at
00:08:37 --> 00:08:40 the end of the Lochner era. What do you know
00:08:40 --> 00:08:43 about the Lochner era? Oh, Lochner era, labor
00:08:43 --> 00:08:48 employment, labor regulations, limitation of
00:08:48 --> 00:08:53 baker's hours, state invocation, contracts clause.
00:08:54 --> 00:08:56 It's the whole panoply of constitutional law.
00:08:57 --> 00:09:00 So this is where what the court is mostly predicting
00:09:00 --> 00:09:02 is what they view as people's right to contract
00:09:02 --> 00:09:05 or freedom to contract. Which the court later
00:09:05 --> 00:09:08 rejects. It does. But this is still part of that
00:09:08 --> 00:09:10 time. What they're really concerned about is
00:09:10 --> 00:09:14 allowing people to reach individual decisions
00:09:14 --> 00:09:17 with their employers about all of the specific
00:09:17 --> 00:09:20 requirements for their job. They don't want Congress
00:09:20 --> 00:09:22 or other legislative bodies like states coming
00:09:22 --> 00:09:24 in and saying you have to pay people a minimum
00:09:24 --> 00:09:29 wage. So does this have to do with the difference
00:09:29 --> 00:09:33 between what a state can regulate versus... what
00:09:33 --> 00:09:38 powers have been given to the state to function.
00:09:39 --> 00:09:41 You'd potentially think it could. This is really
00:09:41 --> 00:09:44 just the Supreme Court absolutely hating every
00:09:44 --> 00:09:46 type of restriction people were trying to put
00:09:46 --> 00:09:47 in place to get out of the Great Depression.
00:09:47 --> 00:09:50 That's fair. So then where do we go from here?
00:09:50 --> 00:09:53 So Roosevelt wins in 1932. That's when I start
00:09:53 --> 00:09:56 seeing all of this action. Roosevelt wins in
00:09:56 --> 00:10:00 a landslide in 1936. And that's when he starts
00:10:00 --> 00:10:03 talking about court packing. So the idea is for
00:10:03 --> 00:10:05 every justice over 70 who won't retire, he gets
00:10:05 --> 00:10:07 to add another justice to the court. It looked
00:10:07 --> 00:10:10 like the decision had happened before he technically
00:10:10 --> 00:10:12 proposed it, but it certainly seemed to be in
00:10:12 --> 00:10:15 response to the court packing proposal. The Supreme
00:10:15 --> 00:10:18 Court changed its mind. So this is when they
00:10:18 --> 00:10:23 started viewing the job of government very differently.
00:10:24 --> 00:10:27 No longer is it the job of the court to police
00:10:27 --> 00:10:28 the government from intruding on any form of
00:10:28 --> 00:10:30 contract. It is now the job of the government
00:10:30 --> 00:10:36 to set safety limits in place. So if it's not
00:10:36 --> 00:10:38 the job of the government to define what the
00:10:38 --> 00:10:41 safety limits are, but it's the job to set the
00:10:41 --> 00:10:45 general parameters, how do you effectively do
00:10:45 --> 00:10:51 that without a large bureaucratic system? So
00:10:51 --> 00:10:54 that is what we'll be talking about next time.
00:10:54 --> 00:10:55 We're going to start talking about the intelligible
00:10:55 --> 00:10:58 principle. At this point, though, we should look
00:10:58 --> 00:11:02 at the first case where the Supreme Court officially
00:11:02 --> 00:11:05 talked about the non -delegation doctrine. That's
00:11:05 --> 00:11:08 IACUS. All right. Let's talk about IACUS. So
00:11:08 --> 00:11:11 we're now in World War II. The government is
00:11:11 --> 00:11:13 trying to fight inflation. It passes the Emergency
00:11:13 --> 00:11:17 Price Control Act of 1942. giving the price administrator
00:11:17 --> 00:11:20 the authority to set maximum prices. The administrator
00:11:20 --> 00:11:22 is authorized, after consultation with representative
00:11:22 --> 00:11:26 members of the industry, to promulgate regulations
00:11:26 --> 00:11:29 fixing prices of commodities, which in his judgment
00:11:29 --> 00:11:31 will be generally fair and equitable and will
00:11:31 --> 00:11:34 effectuate the purposes of this act, when in
00:11:34 --> 00:11:36 his judgment their prices have risen or threatened
00:11:36 --> 00:11:39 to rise in extent or in a manner inconsistent
00:11:39 --> 00:11:41 with the purposes of this act. That is a really
00:11:41 --> 00:11:45 long way of saying that he has discretion. to
00:11:45 --> 00:11:48 think about what prices should be. It does. And
00:11:48 --> 00:11:50 the court has already upheld a number of other
00:11:50 --> 00:11:54 kind of social welfare programs. But this is
00:11:54 --> 00:11:57 the first time that they really explicitly start
00:11:57 --> 00:12:00 talking about this necessity of delegation. So
00:12:00 --> 00:12:03 the Constitution as a continuously operative
00:12:03 --> 00:12:06 charter of government does not demand the impossible
00:12:06 --> 00:12:08 or the impractical. It does not require that
00:12:08 --> 00:12:13 Congress and for itself or every fact. upon which
00:12:13 --> 00:12:16 it desires to base legislative action, or that
00:12:16 --> 00:12:19 it make for itself detailed determinations which
00:12:19 --> 00:12:21 it has declared to be prerequisite to the application
00:12:21 --> 00:12:24 of the legislative policy to particular facts
00:12:24 --> 00:12:27 and circumstances impossible for Congress itself
00:12:27 --> 00:12:29 to properly investigate. This is a completely
00:12:29 --> 00:12:32 different court. We're starting to see the results
00:12:32 --> 00:12:35 of all the action that was taken to get out of
00:12:35 --> 00:12:37 the Great Depression, and this is where we're
00:12:37 --> 00:12:41 in the major rise of the agencies. So what YACA
00:12:41 --> 00:12:45 seems to empower is Congress to say, you get
00:12:45 --> 00:12:47 the power to delegate to agencies that have the
00:12:47 --> 00:12:53 expertise, the capacity to actually make reasonable
00:12:53 --> 00:12:56 decisions around this particular area of operation.
00:12:57 --> 00:13:00 Yes. And that's mattered. We see it again and
00:13:00 --> 00:13:03 again. So the last example we're going to be
00:13:03 --> 00:13:07 talking about today is the TSA. You know how
00:13:07 --> 00:13:11 much I love to fly. I do. You fly a lot. So this
00:13:11 --> 00:13:15 should really hit home. OK, so these are the
00:13:15 --> 00:13:19 requirements that were present before September
00:13:19 --> 00:13:21 11th and then were transferred to the TSA after
00:13:21 --> 00:13:23 September 11th. The administrator shall prescribe
00:13:23 --> 00:13:27 regulations to protect passengers on an aircraft
00:13:27 --> 00:13:31 operating in intrastate air transport against
00:13:31 --> 00:13:33 an act of criminal violence or aircraft piracy.
00:13:33 --> 00:13:36 When prescribing a regulation under the subsection,
00:13:36 --> 00:13:40 the administrator shall. Consider whether a proposed
00:13:40 --> 00:13:43 regulation is consistent with protecting passengers,
00:13:44 --> 00:13:47 protecting the public interest in promoting air
00:13:47 --> 00:13:49 transportation and interstate air transport,
00:13:50 --> 00:13:53 and to the maximum extent practicable, require
00:13:53 --> 00:13:56 a uniform procedure for searching and detaining
00:13:56 --> 00:13:58 passengers and property to ensure their safety.
00:13:59 --> 00:14:02 All right, so what do we have? We have that the
00:14:02 --> 00:14:06 administrator is supposed to make sure that We
00:14:06 --> 00:14:09 have some sort of thing in place to prevent criminal
00:14:09 --> 00:14:12 violence, and this will protect the public interest
00:14:12 --> 00:14:15 in passengers being transported safely and just
00:14:15 --> 00:14:18 the general airline industry overall. So to say
00:14:18 --> 00:14:21 this in a more succinct way, that the TSA needs
00:14:21 --> 00:14:24 to balance the interest of safety against the
00:14:24 --> 00:14:27 convenience of air travel and what it takes for
00:14:27 --> 00:14:30 passengers to access that industry. Yes. So if
00:14:30 --> 00:14:32 we're thinking about convenience. Do you remember
00:14:32 --> 00:14:34 the good old days when you could bring as much
00:14:34 --> 00:14:36 liquid as you wanted in carry -ons? Oh, yeah.
00:14:36 --> 00:14:38 I remember those days where you could pack a
00:14:38 --> 00:14:40 whole shampoo bottle in your carry -on and walk
00:14:40 --> 00:14:43 on the plane. Yeah. So do you remember the year
00:14:43 --> 00:14:48 that changed? It was probably 2001. It wasn't.
00:14:48 --> 00:14:51 2006. Really? Yeah. It was like significantly
00:14:51 --> 00:14:56 after 9 -11. So in 2006. They foiled an attempt
00:14:56 --> 00:14:59 by bombers who were trying to use liquid to bomb
00:14:59 --> 00:15:03 a plane. Oh, I remember this. So in August 2006,
00:15:04 --> 00:15:06 they discovered this terrorist plot. And at that
00:15:06 --> 00:15:08 point, the U .S. and the U .K. immediately banned
00:15:08 --> 00:15:12 all liquids on planes. I remember that's when
00:15:12 --> 00:15:14 we had to start putting things into little Ziploc
00:15:14 --> 00:15:18 baggies and three by three by one. That came
00:15:18 --> 00:15:19 the next month. There was a month where there
00:15:19 --> 00:15:23 was no liquid, which caused... a lot of problems,
00:15:23 --> 00:15:25 as you can imagine. So they're trying to figure
00:15:25 --> 00:15:29 out how to balance people's need to take some
00:15:29 --> 00:15:30 sort of liquid on the plane with them with this
00:15:30 --> 00:15:34 desire for safety. So that was when they moved
00:15:34 --> 00:15:39 to the 311, the 3 .4 ounces in one quart bags.
00:15:40 --> 00:15:42 So they're trying to address two risks here.
00:15:42 --> 00:15:45 Rift number one is that if we have really big
00:15:45 --> 00:15:49 bottles of stuff, we can have pre -mixed or highly
00:15:49 --> 00:15:51 concentrated liquid explosives that could blow
00:15:51 --> 00:15:54 up a plane. The other one is that if we have
00:15:54 --> 00:15:57 small amounts, like we don't want to have so
00:15:57 --> 00:15:59 many small amounts that we could then mix them
00:15:59 --> 00:16:01 into a big liquid that could then blow up the
00:16:01 --> 00:16:04 plane. So we're making it really difficult for
00:16:04 --> 00:16:06 people to try and mix chemicals to blow up the
00:16:06 --> 00:16:10 plane. So it's basically a very pragmatic response
00:16:10 --> 00:16:15 to say. We want to limit the total amount of
00:16:15 --> 00:16:17 liquids because we think liquids are dangerous.
00:16:17 --> 00:16:20 Yes. And this is the amount where it seemed like
00:16:20 --> 00:16:23 this was potentially going to be useful to people,
00:16:23 --> 00:16:25 but wouldn't be enough to blow a hole in the
00:16:25 --> 00:16:28 side of the plane, which was a concern. Okay.
00:16:28 --> 00:16:31 So as we then think about this question about
00:16:31 --> 00:16:36 the power of the agency to make these decisions,
00:16:36 --> 00:16:40 it sounds like the agency has the capacity to
00:16:40 --> 00:16:44 take into account. The practical necessities
00:16:44 --> 00:16:49 of the industry alongside the necessities to
00:16:49 --> 00:16:53 protect the public and to protect the basic function
00:16:53 --> 00:16:56 of government that's happening within the agency.
00:16:56 --> 00:16:58 Yes. And we can see that agencies have to respond
00:16:58 --> 00:17:01 again and again to different items. So the very
00:17:01 --> 00:17:03 last one, we'll talk about shoes. So when did
00:17:03 --> 00:17:06 you have to start taking off your shoes? I mean,
00:17:06 --> 00:17:12 I think it was like 2011. 2001. 2001? I don't
00:17:12 --> 00:17:14 remember it being that long. I know. It seems
00:17:14 --> 00:17:17 crazy. So this is December. It's just a few months
00:17:17 --> 00:17:19 after September 11th. I do remember his name,
00:17:19 --> 00:17:21 Richard Reed. Excellent. Do you remember what
00:17:21 --> 00:17:24 he was doing? He was like fiddling with his shoes
00:17:24 --> 00:17:28 on an aircraft. And the flight attendant noticed
00:17:28 --> 00:17:32 something odd hanging out of his shoes. And they
00:17:32 --> 00:17:35 immediately contacted the pilot. And it kind
00:17:35 --> 00:17:37 of like blew up into this whole thing. And he
00:17:37 --> 00:17:40 became known as the shoe bomber. Yeah. Good memory.
00:17:40 --> 00:17:43 He had a fuse coming out of his shoe that he
00:17:43 --> 00:17:45 was trying to light on board the plane. It wouldn't
00:17:45 --> 00:17:48 light. It seems likely that the sweat from his
00:17:48 --> 00:17:51 feet had made the explosives contaminated enough
00:17:51 --> 00:17:54 that it wouldn't blow up. But that was when everybody
00:17:54 --> 00:17:57 got really concerned about shoes. So if you're
00:17:57 --> 00:17:59 thinking, what's the difference between shoes
00:17:59 --> 00:18:02 and liquids? Shoes can be filled with plastic
00:18:02 --> 00:18:04 explosives, and those are a lot more concentrated.
00:18:05 --> 00:18:07 So we couldn't create this 3 -1 -1 system for
00:18:07 --> 00:18:09 shoes. The only way to check the shoes was to
00:18:09 --> 00:18:11 send them through the x -ray machine. Okay, so
00:18:11 --> 00:18:14 I have a question for you. I haven't taken off
00:18:14 --> 00:18:19 my shoes in about probably 10 years because I
00:18:19 --> 00:18:23 have TSA pre -check. Is that governed by regulation?
00:18:24 --> 00:18:27 Yeah, so we've had to think about what actually
00:18:27 --> 00:18:29 makes sense. Obviously, people don't like taking
00:18:29 --> 00:18:31 off their shoes. It can be really hard if you're
00:18:31 --> 00:18:34 elderly and it's a problem to stand. It can seem
00:18:34 --> 00:18:36 really dumb if we know that somebody's safe.
00:18:37 --> 00:18:39 This is just one more thing we have to do if
00:18:39 --> 00:18:40 you're trying to travel with a two -year -old.
00:18:41 --> 00:18:45 So they created exceptions. And if you fall into
00:18:45 --> 00:18:47 certain groups, you don't have to take off your
00:18:47 --> 00:18:49 shoes. Like if you get preclearance through TSA
00:18:49 --> 00:18:53 PreCheck, you're okay. Right. And now that we
00:18:53 --> 00:18:55 have the technology where if you have the correct
00:18:55 --> 00:18:57 full -body scanners, they can scan the shoes
00:18:57 --> 00:18:59 and actually check. This is something that shouldn't
00:18:59 --> 00:19:03 really have to happen for very much longer. But
00:19:03 --> 00:19:05 that's because the agency had the ability to
00:19:05 --> 00:19:08 adapt immediately when they recognized the threat
00:19:08 --> 00:19:12 and to make readjustments as the threat scenario
00:19:12 --> 00:19:15 changed. So their expertise is combined with
00:19:15 --> 00:19:18 how they operationalize the law in the form of
00:19:18 --> 00:19:22 the regulation. Yes. Fantastic. I love that.
00:19:22 --> 00:19:25 So next time we do the other half of the non
00:19:25 --> 00:19:29 -delegation doctrine. That's what controls. Whether
00:19:29 --> 00:19:31 we determine a delegation is proper, and that's
00:19:31 --> 00:19:34 whether Congress has given the agency an intelligible
00:19:34 --> 00:19:34 principle.