Gwen Savitz and Marc Roark start Administrative Remedies by explaining why modern government can't function without agencies. From small-town mayors to the FDA’s milk standards, they show how specialization and scale make the administrative state essential.
Agencies make democratic promises real. Using analogies—from small-town government to the FDA’s definition of “milk”—they explain how constitutional hierarchy flows from the Constitution to statutes to regulations, and why the Administrative Procedure Act is the “rules behind the rules.”
Key Concepts: Administrative State | Expertise vs Generalists | Hierarchy of Law | APA
Examples: FDA food definitions and nutrition labels
Takeaway: Agencies are how Congress turns broad powers into daily governance; they’re the specialists who make democratic goals work in practice.
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. So today we're starting at the
00:00:46 --> 00:00:48 beginning, why we need the administrative state.
00:00:49 --> 00:00:51 So let's say you're the mayor of a small town.
00:00:52 --> 00:00:54 And in that small town, you're in charge of picking
00:00:54 --> 00:00:58 up trash and policing the city, unlocking the
00:00:58 --> 00:01:01 town hall for events and driving this town snowplow
00:01:01 --> 00:01:04 when it snows and signing all the new ordinances
00:01:04 --> 00:01:06 in the law and figuring out how to implement
00:01:06 --> 00:01:08 them. And oh, by the way, you have to figure
00:01:08 --> 00:01:10 out how to run the sewage plant. That's a lot.
00:01:11 --> 00:01:14 That's a lot. It might possibly be doable in
00:01:14 --> 00:01:16 a small town. It certainly isn't going to work
00:01:16 --> 00:01:18 in a city like Philadelphia. So what exactly
00:01:18 --> 00:01:21 is different about Philadelphia? Philly is huge.
00:01:21 --> 00:01:24 We're going to need separate people to handle
00:01:24 --> 00:01:26 the streets. The streets department deals with
00:01:26 --> 00:01:28 trash and snow removal. We're going to need police
00:01:28 --> 00:01:31 dealing with all the police issues. We have a
00:01:31 --> 00:01:33 department of public property handling building
00:01:33 --> 00:01:37 access. Water department handles over 3
00:01:37 --> 00:01:39 miles of sewage. This is a question of scale.
00:01:40 --> 00:01:43 So is it just scale? Scale is where we start
00:01:43 --> 00:01:46 to care about it. But scale makes another thing
00:01:46 --> 00:01:49 possible, and that's expertise. Once we have
00:01:49 --> 00:01:52 to start distributing jobs among different people,
00:01:52 --> 00:01:54 that means that different people are focused
00:01:54 --> 00:01:57 on one particular area, and they get to specialize
00:01:57 --> 00:01:59 in that area. But this isn't just about dividing
00:01:59 --> 00:02:02 up the work. It's not. What we want are people
00:02:02 --> 00:02:04 who know what they're doing in each area. If
00:02:04 --> 00:02:06 you're the water department, you are spending
00:02:06 --> 00:02:07 all your time thinking about what we need for
00:02:07 --> 00:02:10 clean water, and you're going to be able to hire
00:02:10 --> 00:02:12 other people who are also focused on just what
00:02:12 --> 00:02:14 we need for clean water. So it's a difference
00:02:14 --> 00:02:16 between having a specialist and a generalist.
00:02:16 --> 00:02:19 If I have a common cold, I might go to my general
00:02:19 --> 00:02:22 practitioner and have him prescribe to me certain
00:02:22 --> 00:02:26 over -the -counter or prescription drugs that's
00:02:26 --> 00:02:28 going to help me feel better. But if I'm having
00:02:28 --> 00:02:30 heart failure, I want to go see a cardiologist.
00:02:31 --> 00:02:35 Right. Congress is a generalist. Congress has
00:02:35 --> 00:02:36 a lot of different things it cares about, but
00:02:36 --> 00:02:38 it doesn't really know very much about any specific
00:02:38 --> 00:02:41 area. Congress basically just doesn't have the
00:02:41 --> 00:02:45 bandwidth or technical capacity to actually address
00:02:45 --> 00:02:48 issues. So allowing the specialization is how
00:02:48 --> 00:02:51 we translate these broad democratic values like
00:02:51 --> 00:02:53 clean air and safe medical devices to something
00:02:53 --> 00:02:55 that works in the real world. And that's not
00:02:55 --> 00:02:57 a flaw in the system, is it? No, that's the way
00:02:57 --> 00:03:00 it has to work. So when we talk about the administrative
00:03:00 --> 00:03:03 state, we're really talking about the infrastructure
00:03:03 --> 00:03:06 of modern governance, the system that lets us
00:03:06 --> 00:03:08 take broad democratic values like public health,
00:03:08 --> 00:03:11 workplace safety, and clean water, and actually
00:03:11 --> 00:03:14 make them real in day -to -day world by allowing
00:03:14 --> 00:03:17 the experts to do what they do best. Exactly.
00:03:18 --> 00:03:21 So when we think about this, this is governed
00:03:21 --> 00:03:25 by a hierarchy. So let's talk about how hierarchies...
00:03:26 --> 00:03:30 are created across laws. So we have the Constitution.
00:03:31 --> 00:03:34 And the Constitution establishes certain powers
00:03:34 --> 00:03:37 of the state. It tells Congress what they can
00:03:37 --> 00:03:39 regulate. If you look in Article 1, Section 8
00:03:39 --> 00:03:43 of the Constitution, Article 1 says that Congress
00:03:43 --> 00:03:45 has the power to regulate interstate commerce.
00:03:45 --> 00:03:48 It has the power to regulate taxing and spending.
00:03:48 --> 00:03:51 It has the power to regulate measurements. And
00:03:51 --> 00:03:54 then you have to figure out the next level. which
00:03:54 --> 00:03:58 is how do you now operationalize those various
00:03:58 --> 00:04:02 powers that Congress is passing laws about? That's
00:04:02 --> 00:04:05 where regulations come in. Right. So we have
00:04:05 --> 00:04:07 the Constitution at the top, and then we have
00:04:07 --> 00:04:09 those laws that Congress is passing. Those are
00:04:09 --> 00:04:12 statutes. If a statute conflicts with the Constitution,
00:04:12 --> 00:04:14 the statute loses because the Constitution is
00:04:14 --> 00:04:18 supreme. What agencies do is the next level down,
00:04:18 --> 00:04:20 and it works the same way. Agencies create regulations.
00:04:21 --> 00:04:24 If a regulation conflicts with a statute, the
00:04:24 --> 00:04:27 regulation is struck down. And again, if either
00:04:27 --> 00:04:29 of them conflict with the Constitution, the Constitution
00:04:29 --> 00:04:31 always wins. The Administrative Procedure Act
00:04:31 --> 00:04:34 is the big law that governs all agencies. It
00:04:34 --> 00:04:38 doesn't cover what they can do in terms of can
00:04:38 --> 00:04:40 they regulate clean air, but it says if they're
00:04:40 --> 00:04:42 going to regulate clean air, this is what they
00:04:42 --> 00:04:45 have to do. It's a statute. It's passed by Congress,
00:04:45 --> 00:04:49 which means that It is supreme over all the actions
00:04:49 --> 00:04:51 agencies take. If they do anything in conflict
00:04:51 --> 00:04:53 with the APA, what they've done is invalid. So
00:04:53 --> 00:04:57 it's the rules behind the rules. Yes. That's
00:04:57 --> 00:04:59 what we care about on this podcast. So when we
00:04:59 --> 00:05:03 talk about the rules behind the rules, then we're
00:05:03 --> 00:05:06 talking about Congress having set certain rules
00:05:06 --> 00:05:09 by which agencies that are created from other
00:05:09 --> 00:05:14 laws are able to navigate their own power to
00:05:14 --> 00:05:18 operate in an area. Yes. This can be a little
00:05:18 --> 00:05:21 easier if you see it in concrete action. Okay,
00:05:21 --> 00:05:24 let's do that. How would you define milk? So
00:05:24 --> 00:05:27 I would describe milk as the thing you buy at
00:05:27 --> 00:05:29 the grocery store. It comes from a cow, a goat,
00:05:30 --> 00:05:32 a sheep, something like that. Yeah, excellent.
00:05:33 --> 00:05:38 Let's see how the FDA defines milk. Milk is described
00:05:38 --> 00:05:42 as lactose secretion practically free from colostrum
00:05:42 --> 00:05:45 obtained By the complete milking of one or more
00:05:45 --> 00:05:48 healthy cows, milk that is in final package form
00:05:48 --> 00:05:51 for beverage use shall have been pasteurized
00:05:51 --> 00:05:54 or ultra -pasteurized and shall contain not less
00:05:54 --> 00:05:57 than 8 .25 % milk solids, not fat, and not less
00:05:57 --> 00:06:01 than 3 .25 % milk fat. Milk may have been adjusted
00:06:01 --> 00:06:03 by separating part of the milk fat therefrom
00:06:03 --> 00:06:05 or by adding thereto to cream, concentrated milk,
00:06:06 --> 00:06:08 dry whole milk, skim milk, concentrated skim
00:06:08 --> 00:06:12 milk, or non -fat dry milk, and milk may be homogenized.
00:06:13 --> 00:06:15 In other words, pretty much what you would have
00:06:15 --> 00:06:16 said. Yeah, it's exactly what I ask the clerk
00:06:16 --> 00:06:18 for every day when I'm looking for the milk.
00:06:18 --> 00:06:22 Right. So that's the way FDA has defined milk
00:06:22 --> 00:06:24 in the regulations. Let's look at the statute
00:06:24 --> 00:06:28 that says FDA gets to do that. OK, so it says
00:06:28 --> 00:06:30 whenever in the judgment of the secretary, such
00:06:30 --> 00:06:32 action will promote honesty and fair dealing
00:06:32 --> 00:06:35 in the interest of consumers. He shall promulgate
00:06:35 --> 00:06:38 regulations fixing and establishing for any food
00:06:38 --> 00:06:41 under its common or usual name. So far as practicable,
00:06:41 --> 00:06:44 a reasonable definition and standard of identity.
00:06:45 --> 00:06:47 This was created because. When we're first starting
00:06:47 --> 00:06:49 to think about food, the jungle comes out and
00:06:49 --> 00:06:51 identifies horrific conditions. There are also
00:06:51 --> 00:06:54 a lot of problems with lots of foods. Milk is
00:06:54 --> 00:06:56 expensive. What's a lot cheaper than milk is
00:06:56 --> 00:06:59 watering it down and then adding chalk so it
00:06:59 --> 00:07:01 looks white. So this is about consumer protection.
00:07:01 --> 00:07:03 It is. This entire thing is intended to be consumer
00:07:03 --> 00:07:06 protection. We're trying to figure out what exactly
00:07:06 --> 00:07:08 these foods are so people can be confident if
00:07:08 --> 00:07:10 they're buying something that says milk, that
00:07:10 --> 00:07:13 it's actually milk and not chalky water. Okay,
00:07:13 --> 00:07:16 so... But do I need to know these definitions
00:07:16 --> 00:07:19 to know that Congress is regulating in this area?
00:07:20 --> 00:07:22 Is there something that I can look at a package
00:07:22 --> 00:07:26 of food and maybe understand that there is some
00:07:26 --> 00:07:28 sort of uniformity in the way that we describe
00:07:28 --> 00:07:30 these things? Why, yes, there is. Let's go to
00:07:30 --> 00:07:33 the next one. All right. I've given you a couple
00:07:33 --> 00:07:35 of the nutritional facts panels. So first, what
00:07:35 --> 00:07:39 are those? These are the backs of the boxes that
00:07:39 --> 00:07:41 tell me how much weight I'm going to gain if
00:07:41 --> 00:07:44 I eat the entire box. All right. Excellent. Right
00:07:44 --> 00:07:47 now, you have Frosted Flakes and Shredded Mini
00:07:47 --> 00:07:51 Wheats. So these are both sugar cereals. They're
00:07:51 --> 00:07:54 both breakfast cereals. But there are some differences.
00:07:54 --> 00:07:57 What is the serving size for Frosted Flakes?
00:07:57 --> 00:08:01 So for Frosted Flakes, it's one cup or 37 grams.
00:08:01 --> 00:08:03 What about for the Frosted Shredded Mini Wheats?
00:08:04 --> 00:08:08 25 biscuits or 60 grams. These are considered
00:08:08 --> 00:08:11 different types of cereals. Part of the thinking
00:08:11 --> 00:08:13 behind the nutritional facts is just like we
00:08:13 --> 00:08:14 want everybody to be confident when they go and
00:08:14 --> 00:08:16 buy something that's labeled milk at the grocery
00:08:16 --> 00:08:18 store that it's actually milk, we want people
00:08:18 --> 00:08:21 to be able to compare different similar foods
00:08:21 --> 00:08:24 and see what the caloric breakdown is, the fat,
00:08:24 --> 00:08:27 the calories, the protein, all of those things.
00:08:27 --> 00:08:29 And the way you can really do that is by trying
00:08:29 --> 00:08:32 to have standardized servings. So we have a different
00:08:32 --> 00:08:34 standardized serving for a dense cereal, like
00:08:34 --> 00:08:38 Frosted Mini Wheats, than we do for... a medium
00:08:38 --> 00:08:40 weight cereal like Frosted Flakes, or we would
00:08:40 --> 00:08:43 for a light cereal like Rice Krispies. So the
00:08:43 --> 00:08:48 grams tell us a way of scaling the different
00:08:48 --> 00:08:51 information we're going to get in this information
00:08:51 --> 00:08:53 that's being presented. Right. What they've tried
00:08:53 --> 00:08:55 to do is think when somebody eats this cereal,
00:08:56 --> 00:08:58 what is a typical serving? And those are going
00:08:58 --> 00:09:00 to be different for different cereals because
00:09:00 --> 00:09:02 people don't just measure a cup of every cereal
00:09:02 --> 00:09:04 that they eat. They do it in... Different amounts
00:09:04 --> 00:09:07 based on how dense the cereal is. Right. Most
00:09:07 --> 00:09:09 people don't count out 25 biscuits when they're
00:09:09 --> 00:09:14 putting in their mini wheats. Right. That's approximately
00:09:14 --> 00:09:16 what 60 grams works out to. So there are standards
00:09:16 --> 00:09:19 saying if you're selling a dense cereal, you
00:09:19 --> 00:09:21 need to list the calories based on approximately
00:09:21 --> 00:09:24 60 grams. And when I'm looking at this, the calories
00:09:24 --> 00:09:26 are different. So the calories in the Frosted
00:09:26 --> 00:09:29 Flakes are 130, but the calories, there's approximately
00:09:29 --> 00:09:34 80 calories more in the Mini Wheats, 210. Right,
00:09:34 --> 00:09:35 because there's a lot more grams in Mini Wheats
00:09:35 --> 00:09:37 that you're eating. this is intended to help
00:09:37 --> 00:09:40 you compare similar things and to get an idea
00:09:40 --> 00:09:42 of what you'd have so these serving sizes the
00:09:42 --> 00:09:46 60 grams 40 grams those were increased the fda
00:09:46 --> 00:09:48 went through and increased a lot of different
00:09:48 --> 00:09:50 serving sizes to make it a little more accurate
00:09:50 --> 00:09:52 to what people are really eating So they increased
00:09:52 --> 00:09:55 cereal. They also increased the size of an ice
00:09:55 --> 00:09:58 cream scoop. That still isn't necessarily a pint.
00:09:58 --> 00:10:01 So there's another rule saying for small containers
00:10:01 --> 00:10:02 like that where somebody might eat the entire
00:10:02 --> 00:10:05 container, we can put the entire calorie on that
00:10:05 --> 00:10:08 as well. But it's intended to help you compare
00:10:08 --> 00:10:10 things. Some ice creams have a lot more fat.
00:10:10 --> 00:10:12 That's going to be reflected in a lot more calories,
00:10:12 --> 00:10:14 but you wouldn't necessarily scoop out a different
00:10:14 --> 00:10:17 amount of that. So if we think about what we're
00:10:17 --> 00:10:21 doing here, then the law gives power to the FDA
00:10:21 --> 00:10:24 to make the regulations for how you define the
00:10:24 --> 00:10:28 food, which gives power to the companies to define
00:10:28 --> 00:10:32 how you describe the food to consumers. So the
00:10:32 --> 00:10:34 FDA has said how you're allowed to define these
00:10:34 --> 00:10:36 kinds of foods. And it's up to the companies
00:10:36 --> 00:10:39 to figure out, based on that definition, what
00:10:39 --> 00:10:42 are the different values for these foods? Okay.
00:10:42 --> 00:10:46 All right. So I think that I didn't realize that
00:10:46 --> 00:10:49 Congress was that much in my food. It is in your
00:10:49 --> 00:10:50 everything. That's what we're talking about.
00:10:50 --> 00:10:54 Excellent. Today, we talked about why we need
00:10:54 --> 00:10:56 the administrative state. But next time, we're
00:10:56 --> 00:10:59 going to be talking about how the agencies actually
00:10:59 --> 00:11:01 get power and why they need to get that power
00:11:01 --> 00:11:03 from Congress. That means we'll be talking about
00:11:03 --> 00:11:04 delegation.