The Necessity of Delegation: Why Congress Hands Power to Federal Agencies

Congress passes roughly a few hundred laws per session. Federal agencies produce thousands of rules per year. That ratio isn't an accident — it's the only way the system can work. Congress sets the direction: clean air, safe drugs, stable financial markets. Agencies fill in the details: what counts as clean, how safe is safe enough, what stability requires in practice. The transfer of authority from Congress to agencies is called delegation, and it's the mechanism that makes modern government possible.

But delegation isn't just a convenience. It's a necessity driven by three problems Congress can't solve on its own. The first is scale. The federal government regulates virtually every sector of the economy, from agriculture to telecommunications to nuclear energy. Writing specific rules for each would require a level of output that 535 legislators and their staffs simply cannot produce. The second is expertise. Setting safe exposure limits for industrial chemicals or designing capital reserve requirements for banks requires technical knowledge that generalist lawmakers don't have and can't reasonably acquire for every issue they legislate on. The third is speed. Markets shift, technologies evolve, emergencies arise. Congressional lawmaking is slow by design — deliberation, committee review, floor votes, bicameralism, presentment. Agencies can respond in months. Congress often takes years.

None of this means delegation is unlimited or uncontroversial. The Constitution vests legislative power in Congress, and there's a real debate about whether Congress has given away too much. But before you can evaluate that debate — before the nondelegation doctrine, the intelligible principle, or the major questions doctrine make any sense — you need to understand why Congress delegates in the first place and what would happen if it couldn't.

In this episode, we walk through the practical reasons delegation exists, how it actually works when Congress writes a statute and an agency implements it, and why the relationship between Congress and agencies is less like a boss giving orders and more like a principal hiring a contractor with discretion to get the job done.

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What We Cover

• Why Congress can't write the rules itself — the problems of scale, expertise, and speed that make delegation unavoidable
• How delegation actually works: what Congress puts in a statute versus what it leaves for agencies to decide
• The relationship between Congress and agencies — not a blank check, but a structured transfer of authority with boundaries
• Real-world examples of how broad statutory language gets translated into specific rules that affect everyday life
• Why delegation has grown over time as government has taken on more complex regulatory responsibilities
• The tradeoffs: what we gain in expertise and responsiveness versus what we risk in accountability and democratic control
• How this foundational concept connects to every debate about agency power that follows — nondelegation, the intelligible principle, and the major questions doctrine

Full Transcript

Rough S1E2 Transcript — The Necessity of Delegation

Gwen: Hello and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean at the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way that the federal government gets things done. And it’s not through Congress for reasons we’ll be addressing over the course of this entire series.

Gwen: In a modern, complex society, government can’t function without groups of people who specialize, who build expertise, and who can actually carry out the big picture goals set by Congress. But today we’re going deeper.

Marc: That’s right. Today we’re talking about why Congress has to hand power over to the agencies. We’re talking about the necessity of delegation.

Gwen: So let’s talk about delegation. What do you mean by delegation?

Marc: Let’s think back to when the kids are younger, you’ve hired a babysitter. What kind of instructions would you give the babysitter?

Gwen: Well, we would say things like bedtime’s at 8, help yourself to whatever you want in the fridge, make sure the dog goes outside, and we’ll be home by 10 p.m.

Marc: Okay, great. So what happens when 15 minutes after you’ve left, the kids are hungry? Is this dinner time? Are they allowed to have a snack? What are they allowed to have as a snack? There are going to be all of these issues that keep coming up, and that will continue the entire day. Theoretically, the babysitter could call you with questions for every single one of these. How excited are you going to be when you get a call from the babysitter five minutes after you’ve left saying, the kids are hungry, can I give them carrots?

Gwen: So I see where this is going. Is this about giving autonomy to the people that we’ve asked to make decisions to make those decisions as they see appropriate?

Marc: Somewhat. It’s saying that you have to do that. Because there’s no way to possibly get around all of these decisions that are going to come up. So you could have given the babysitter much more detailed instructions. You could have said, for dinner, have the frozen pizza in the fridge. There’s ice cream for dessert. Start getting ready for bed at 7:30. Brush their teeth. Get their pajamas on.

Gwen: But how much ice cream? What happens if the kids eat all the pizzas? Is the babysitter allowed to eat anything? What kind of TV can they watch? If we had to map out all of those little decisions, we would have an intractable document that can never be functional for the babysitter to actually use.

Marc: Right. And you still wouldn’t even be able to come up with every issue that would come up.

Gwen: This is the whole idea. When you have the babysitter come, you are inherently saying you are going to need to make some of these decisions and we trust you to do that.

Marc: So if we’re thinking about that, agencies work the same way. Just like you can’t specify every single thing that the babysitter is going to need to decide that night, Congress can’t specify every detail that agencies will need to decide in advance. Circumstances can also change, and we need the agencies to be able to adapt to that.

Gwen: Just like you can’t possibly give every detail to the babysitter before you leave for the night. Congress can’t possibly give every detail to agencies for the stuff that they’re supposed to do.

Marc: Right. That would be strange. We don’t elect people because they are experts in the environment. We elect people because they understand or supposedly understand how government’s supposed to run.

Gwen: Exactly. Congress is filled with generalists. Agencies, in contrast, are the specialists. This is the expertise that we talked about last time. They’re the ones who are in a position to be making a lot of these detailed decisions.

Marc: So how does Congress decide what decisions get delegated to the agencies to make versus what decisions they make as a part of laws?

Gwen: Generally, when Congress is deciding on laws, there are big goals they want to have. Like, we want clean air. It’s really hard for Congress to figure out exactly what clean air means. And giving too detailed instructions to the agencies can actually prevent the agencies from adapting to things that happen in the future.

Marc: So the legislation sets out the big parameters, the big goals of what the agencies are doing. And the regulations that the agencies implement are the pathways that they’re going to do it through.

Gwen: Yes, exactly. So when you have the babysitter, you’re really excited when the babysitter is brushing your kid’s teeth at night, assuming your kids are the right age for that. You’d be really concerned if the babysitter stormed in off the street one day and started brushing your kid’s teeth. When agencies are acting under this, they’re acting under the authority they’ve been given from Congress, not them deciding to go rogue and start brushing random people’s teeth.

Marc: So agencies can exceed their authority.

Gwen: They can, and then they get in trouble for that, and what they’ve done is considered invalid.

Marc: So let’s talk about some terms that have come up around administrative law in the news lately. So what is quasi-legislative power?

Gwen: So we’ve talked before about how Congress has a legislative power, the president has the executive power, and the courts have the judicial power. Quasi-legislative power is the power that agencies have to make rules. It’s quasi-legislative because they’re acting like a legislature in the sense that they’re making these forward-looking decisions, but they’re not the legislature. So it’s just quasi.

Marc: So why then do we delegate if agencies have this both semi-legislative and judicial power about how they act?

Gwen: So they can’t act without power from Congress. They need the delegation. Again, we don’t want agencies storming into random people’s houses and brushing random people’s teeth. We want them acting in the specific role that they’ve been given. We also want to make sure that these decisions are being made by the people with the expertise.

Marc: So give me a real life example about how this has happened.

Gwen: Let’s look at what Congress said with the EPA. What did Congress actually say?

Marc: National primary ambient air quality standards shall be ambient air quality standards, the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.

Gwen: Requisite to protect the public health with an adequate margin of safety. That’s pretty vague.

Marc: It is. They’re not saying what pollutants they’re concerned about. They’re not saying the levels that we should be concerned about for those. All they’re saying is essentially we want clean air.

Gwen: So how does the EPA figure this out?

Marc: The EPA uses scientific expertise to try and figure out what’s causing harm and the levels that it’s causing harm at. So they can study the health effects, they can review medical literature, they can analyze epidemiological studies, they can consult with scientists, doctors, and try and figure out what is in the air that’s causing problems. And also, what can we realistically fix?

Gwen: So Congress didn’t write that number into law.

Marc: Right. Congress didn’t say exactly what should be regulated. And that’s a good thing.

Gwen: When this act was passed, people didn’t really know that small particulate matter or PM2.5 could cause problems. That wasn’t even on people’s radar at the time. But since then, the EPA has started to regulate it and increased how stringently it’s regulating it because they’ve realized that it does cause problems and it’s something that can be fixed.

Marc: So standards can change.

Gwen: They do. And that’s one of the really important things about agencies. If we have Congress giving really explicit instructions, that will permanently lock in whatever those instructions are.

Marc: So the same statute that mandates the agency to protect public health leads to different specific numbers as science advances.

Gwen: Yes. As science advances, as we find out more things that cause problems, as we find out more ways to control what’s causing problems, the EPA can change what it’s regulating and change how strictly it’s regulating it.

Marc: How specific do these regulations get?

Gwen: Very specific. If we’re thinking about coal-fired power plants, the EPA is going to be very clear. They’re not just saying reduce air pollution from these. They’re putting maximum emission rates for sulfur dioxide, nitrogen oxides, particulate matter, measured in pounds per million BTU of heat, how much heat the coal-fired power plant is actually producing. They’ve got monitoring requirements in place. They have rules on how frequently the facilities have to test their emissions. They have rules on what happens if they exceed the limits. It’s all really, really detailed. None of that detail is in the statute.

Marc: Congress said protect public health. The EPA translated that into enforceable technical standards that power plants must now follow.

Gwen: And then these standards affect everyday life.

Marc: They absolutely do. Air is incredibly cleaner than it was when we were first passing this act. Lead levels are down 99% since the ’70s, in large part because we phased lead out of gas. Sulfur dioxide is down 90%. You can see further in cities because we’ve reduced a lot of the components of smog. It’s made a big difference.

Gwen: And it wasn’t Congress that wrote these rules that achieved this. They set the goal of having clean air. They delegated this to the Environmental Protection Agency.

Marc: The technical work of determining what clean means and how to achieve it.

Gwen: So what delegation does is it allows the Environmental Protection Agency to keep pace with science.

Marc: Yes. And as we learn about other pollutants that could cause problems, EPA could take action on that. This allows it to change with the times.

Gwen: So when did this all start? Is this just a modern function of governance?

Marc: When we think about the rise of the administrative state, you generally say it starts happening in the ’30s. But this kind of thing has been going on since the very beginning.

Gwen: The very first Congress already was having to delegate authority.

Marc: So like what? What kinds of authority did Congress delegate?

Gwen: All right. So Congress is trying to raise money. There are very few ways Congress can raise money in 1789. So they passed the Tariff Act.

Marc: So even in 1789, they couldn’t spell everything out.

Gwen: They couldn’t, but they tried. So let’s look at some of the things that they managed to put in.

Marc: On cheese, per pound, four cents. On all shoes, slippers, or galoshes made of leather, per pair, seven cents. On all shoes or slippers made of silk or stuff, per pair, ten cents. On shoe or knee buckles. On playing cards per pack, ten cents.

Gwen: So they’ve been really detailed. This is far more detailed than we could possibly expect a Congress to be with legislation that’s being passed now. They tried to make all of these things explicit, but there were still gaps. How do you decide whether something is made of leather or made of silk if it has both? Or a lot of other issues that came up in customs.

Marc: How did they decide?

Gwen: Alexander Hamilton was in charge of the Treasury. Customs was under the Treasury. So Hamilton decided he was going to need to start unifying what was going on at the ports. And this is the letter that he sent to the customs officials telling them this was going to start happening.

Marc: In a Treasury circular to the collectors of customs on July 20, 1792, Alexander Hamilton said: The act constituting the Treasury Department expressly makes it the duty of the head of the department to superintend the collection of revenue. The power of superintending the collection of revenue, as incident to the duty of doing it, comprises, in my opinion, among a variety of particulars not necessary to be specified, the right of setting for the government of the officers the construction of laws relating to revenue in all cases of doubt.

Gwen: In all cases of doubt. That’s really broad.

Marc: This is really broad. What he’s saying is I’m in charge of the Treasury. I’m in charge of customs and issues have come up. I need to make sure that everybody’s doing the same thing. Somebody has to make that decision and it’s going to be me.

Gwen: But he’s making a policy judgment.

Marc: Yes, he’s making judgments about all of these issues that are coming up that Congress didn’t specify in the really detailed statute they passed that tried to put exact tariffs on every good.

Gwen: So is that really helpful or beneficial for the government to be able to have that broad lane of authority given to a department?

Marc: Again, it is impossible for government to act without it. This wasn’t something that Congress was really contemplating when the act was passed. They probably thought this would be pretty ministerial, but it didn’t end up being that way.

Gwen: So it’s really actually a burden to think that Congress has to write all the specifics into laws.

Marc: It is absolutely impossible.

Gwen: So we can see the kinds of things that were coming up. Like, for instance, when people were bringing things in barrels, we didn’t have uniform shipping containers. Things are coming in on lots of different homemade size things. If you’re bringing salted pork over in a big barrel, how are you going to figure out how much the barrel weighs so you can figure out how much you need to charge for the salted pork? This kind of thing kept coming up over and over again, and different customs offices were doing it differently.

Marc: So these were the types of things that Hamilton was trying to unify so that regardless of the port people went to, they would be facing the same thing when they got there.

Gwen: So then the next time someone says Congress should just write more specific laws—

Marc: They can’t. They could certainly write more specific laws than what they have, but they could never write laws that were so specific they didn’t actually need to delegate authority.

Gwen: Well, since we’ve covered that, what do we have coming up next episode?

Marc: Next time, we are talking about the restrictions on when Congress can delegate authority, and that is the non-delegation doctrine. We will see you then.

Related Guides

• Why We Need the Administrative State — The companion episode. That one explains why agencies exist. This one explains the mechanism — delegation — that gives them the authority to act.
• The Nondelegation Doctrine Explained — If delegation is how Congress transfers power, the nondelegation doctrine is the constitutional limit on how far that transfer can go. Understanding why delegation is necessary is essential context for evaluating where the line should be.
• The Intelligible Principle Explained — When Congress delegates, it's supposed to provide guidance. The intelligible principle test is how courts decide whether Congress gave enough direction — or handed the agency a blank check.