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What We Cover

• What the intelligible principle test is and where it comes from — the 1928 case that established the standard courts still use today
• What counts as an intelligible principle and what doesn't — real examples of statutory language courts have upheld and the rare instances where they haven't
• Why the test has been criticized as toothless — how phrases as vague as "public interest" and "fair and equitable" have been found sufficient
• The real-world analogies: how HOA rules, broadband standards, and babysitter instructions illustrate the difference between meaningful guidance and a blank check
• How the intelligible principle connects to the nondelegation doctrine — and why tightening the standard could have cascading consequences
• Which justices have called for a stricter test and what that would mean for existing agency authority
• Why this technical-sounding standard ultimately determines how much of modern government is constitutional

Full Transcript

Rough S1E4 Transcript — The Intelligible Principle

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 the federal government gets things done. And it’s not through Congress for reasons we’ll be addressing over the course of this series.

Gwen: So last time we talked about the non-delegation doctrine, the Supreme Court had pretty much given up enforcing it after 1935, the one and only year they cared about it. And that courts now will uphold extremely broad delegations, like whether something is in the public interest or whether it’s fair and equitable. But even though the bar is really low, there is still a bar. That’s what we’re talking about today. We’re talking about the intelligible principle.

Marc: The difference between a delegation with an intelligible principle and one without can mean the difference between predictable governance and arbitrary tyranny.

Gwen: So we’re going to start with a couple examples that might hit a little closer to home and help this make sense. So example number one, something property people love, the homeowners association.

Marc: Oh, the elected HOA, five members who want to maintain property values and keep their positions of power within their own little fiefdom.

Gwen: So in this hypothetical homeowners association, we have an elected board. The board wants to maintain property values. So they delegate all the landscape stuff to Bob.

Marc: So Bob, your next door neighbor, is really concerned about how your lawn impacts other people’s property values. He looks at things like how high the lawns can grow and the fact that everyone needs at least one tree in their front yard and that everyone must have a lawn and that you can’t do natural landscaping.

Gwen: So Bob is really going rogue here. You don’t have any idea what decisions he’s going to make. He might make a decision for himself and something different for you.

Marc: Because the way we have things now, there’s no predictability. You can’t budget for anything. You don’t know what things are going to cost. You don’t know what the potential fines are. This is just a recipe for favoritism, discrimination, and abuse of power.

Gwen: And while you can’t vote Bob out because he wasn’t elected, you could have an HOA that sets out certain standards for how you maintain your lawn. For example: maintain appearance by ensuring lawns are mowed at least every two weeks during growing season and that front gardens don’t exceed 25% of your yard space and that fines can’t exceed $50 per violation and must first have a written warning.

Marc: This is a lot more specific. You can see it’s still not prescribing everything. We haven’t determined what would constitute overgrown. There’s no specific garden design. We don’t know exactly what the different seasons are, but we’ve done a lot to try and address some of these rogue actions that Bob was taking.

Gwen: So let’s think about analogy number two. Let’s imagine a town council wants a youth sports department. So they appoint a parks director that says, create the youth sports program. The parks director can be Bob again. Bob is the expert. He’s the one who knows all about sports. But he now has virtually unlimited power here. So he can ban sports entirely based on what he likes. He might think football is too dangerous. The town shouldn’t have a football team.

Marc: You could make registration fees $1,000. You could decide only certain neighborhoods should get teams or that we’re only going to have teams for the elite players.

Gwen: But what if instead the council said something like: administer youth sports to maximize participation while ensuring player safety. Registration fees cannot exceed a per-program per-child cost. And each neighborhood must have equal access to facilities. Any child residing in the town can participate regardless of skill level.

Marc: So just like before, this still leaves a lot of discretion to Bob. He can still choose sports to offer. He’s just choosing them based on the demand. He can still choose when the practices are going to be. He can hire the coaches. He can determine the league structure. But when he’s setting fees, he’s going to need to set reasonable fees that relate to the actual cost. He can’t create an elite-only team. He has guardrails around what it means to deploy this basic thing that the town council has asked him to do.

Gwen: Exactly. We’ve now given him an intelligible principle to work with.

Gwen: And this is something that still routinely comes up in Supreme Court cases. Here’s a quote from the Supreme Court earlier this year. In Federal Communications Commission versus Consumers Research.

Marc: In examining a statute for the requisite intelligible principle, we have generally assessed whether Congress has made clear both the general policy that the agency must pursue and the boundaries of its delegated authority. And similarly, we have asked if Congress has provided sufficient standards to enable both the court and the public to ascertain whether the agency has followed the law. If Congress has done so, as we have almost always found, then we will not disturb its grant of authority.

Gwen: So there’s a couple of things the court’s saying. First, how much guidance is going to be needed depends on how much power is being delegated. And even for massive delegations that affect the whole economy, Congress doesn’t need to be super specific about where to draw every line. These two principles prevent more extreme arbitrary governance, like preventing the parks director from just creating an exclusive sports league. With the EPA, for example, air quality standards must be requisite to protect the public health. Not saying exactly what they are, but whatever they are, the agency needs to be able to connect back to public health. Again, the bar is low, but there is still at least some standards.

Gwen: Here are some of the different types of delegation that have long been upheld. You want to read through some of them?

Marc: The FCC Communications Act of 1934 said: If the Commission, upon examination of any application for a station license, shall find the public interest, convenience, and necessity would be served by granting thereof, it shall grant such an application.

Gwen: So in that one, they’re looking at the public interest, convenience, and necessity. What about the next one?

Marc: In the Occupational Safety and Health Administration, or OSHA, Act of 1970, Congress said: The Secretary shall prescribe such rules or regulations as are reasonably necessary or appropriate to provide safe or healthful employment.

Gwen: All right, so these rules need to be reasonably necessary and appropriate to provide safe and healthful employment. What about the last one?

Marc: In the Securities and Exchange Commission, Securities Act of 1933: The Commission may create rules as necessary or appropriate in the public interest or for the protection of investors.

Gwen: All right. Again, we’re talking about what would be in the public interest. There’s a running theme here.

Marc: Last time we talked about how Gorsuch is unhappy with the current broad delegations. But we’ve also talked about how Congress isn’t really equipped to get very much more specific. It would mean relying on experts that likely would come from industry.

Gwen: And there’s the part that really drives some people nuts. Congress doesn’t necessarily want accountability for the final decisions agencies make. In theory, few people are against clean air. It’s only once you start talking about exactly how much sulfur dioxide you’re regulating and what it will cost that people really start to care.

Marc: This is one of the issues that comes up repeatedly. Sometimes Congress just doesn’t know enough to be really specific. Sometimes Congress doesn’t want to be really specific because different people have opposing views on what it should be. And it’s easier to just say, let’s regulate clean air than to specify exactly what should be regulated.

Gwen: Setting pollution standards can be both technical and political. And courts can also choose how they’re going to interpret this.

Gwen: Let’s talk about the benzene case. It’s a really important carcinogen. It’s in gas. It’s in synthetic fibers. It’s in dyes. It’s in plastics. It’s really widely used. So this isn’t something that could just be cut out completely.

Marc: Part of the requirement to regulate toxic chemicals is supposed to show that—

Marc: The standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate.

Gwen: We’ve already established that this was a carcinogen. The agency knew that. And so they said, given that this is a carcinogen, there is no safe level. So we are going to set it as low as we possibly can. The lowest technologically feasible limit is one part per million. The standard had been 10. They dropped it from that. So the court was trying to determine whether this was something they could legitimately do. You want to read what it said?

Marc: The court said that they were going to require the Secretary to find, as a threshold matter, that the toxic substance in question poses a significant health risk in the workplace, and that a new, lower standard is therefore reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

Gwen: They’re reinterpreting this from just “you need to determine that something is safe” to “you need to determine that what is currently there is dangerous and that your new lower standard will fix that problem.” They’re constraining the agency. They were invalidating this decision to go down to one.

Marc: And part of that is because the agency is making the assumption that if something is bad, there is no safe limit of whatever that bad thing is. But it’s common knowledge that the dose makes the poison. So anything can be dangerous if you get it at a high enough level, including water.

Gwen: Let’s talk about something that you might not realize is because of administrative law. Generic drugs.

Marc: I didn’t know generic drugs were regulated by administrative law.

Gwen: Everything is regulated by administrative law. But what are generic drugs?

Marc: Way cheaper.

Gwen: A lot cheaper, especially since your insurance company will likely cover it. Generic drugs are way cheaper, but have the same active ingredient. So you know they’re the same because the FDA created bioequivalence standards. Under the statute, FDA is just supposed to make sure drugs are safe and effective. That’s a pretty broad, intelligible principle. But they’ve used that to determine exactly how to make sure that generic drugs will be safe and effective. And they’ve decided that means that they must deliver the same amount of the active ingredient into the bloodstream at the same rate as the brand name drug within certain limits. The generic has to be between 80% and 125% of the brand name’s bioavailability with 90% confidence intervals. Generally, in order to get within this 90% confidence interval, the generic is within 3% to 4% of the brand name drug.

Marc: Before this standard was set, a lot of states wouldn’t allow generic substitution because they couldn’t be confident that the generic was actually the same as the brand name drug.

Gwen: One of the important things about the intelligible principle is that by not locking agencies into specific numbers, it means that the agency is allowed to evolve with the times. What counts as broadband?

Marc: I have no idea.

Gwen: The FCC has repeatedly raised it. It’s now up to 100 megabytes per second down. Previously, it had been 25 down. They’re doing this under the authority of the Telecommunications Act of 1996. Do you know what the top home speeds were in 1996?

Marc: 1996, it’s got to be like under 10 megabytes per second.

Gwen: This is the era of dial-up. 28.8 kilobytes a second was typical. 56 was high end. Universities had faster systems, but they would have been basing this on what was available for residential houses. So if they’d said at the time that the FCC needs to make sure everybody has 56 kilobytes a second access to the internet, we would still be waiting for songs to download.

Marc: As they continue to raise it, everybody who doesn’t have whatever that level is, is in an underserved area. So by continually ratcheting it up, we’re spreading faster and faster internet throughout the country.

Gwen: And the fact that they can change it is because we didn’t have something locked in from the very beginning.

Marc: So far in the series, we’ve been talking about the rules that agencies have created, but next time we’re going to talk about how they actually make their rules.

Gwen: Next time, we are talking about the notice and comment rulemaking process.

Related Guides

• The Nondelegation Doctrine Explained — The intelligible principle is the nondelegation doctrine's only surviving enforcement mechanism. This guide explains the broader constitutional principle and why the Court hasn't struck down a delegation since 1935.
• The Necessity of Delegation: Why Congress Hands Power to Federal Agencies — Before asking how much guidance Congress must provide, it helps to understand why Congress delegates in the first place and why it can't realistically do the work itself.
• The Major Questions Doctrine Explained — If the intelligible principle asks whether Congress gave enough guidance, the major questions doctrine asks whether Congress gave the authority at all. Together they define the outer boundaries of what agencies can do.
• Trump v. Slaughter Explained: The Case That Ended Independent Agencies — Justice Gorsuch's concurrence in Slaughter introduces the ratchet-effect argument that reopens intelligible-principle questions for delegations Congress made to formerly independent agencies.