Delegation of power, in the discussions on The Bob Zadek Show, is the transfer of authority that the Constitution assigns to one body — chiefly Congress — into the hands of another, chiefly the executive branch and the unelected agencies beneath it. Bob Zadek frames the question as foundational rather than technical: the Constitution gave specific power to specific bodies, and it did not necessarily allow those holding that power to hand it to someone else whom voters have never met A Lame Duck’s Last Stand (2017). The same logic is extended in the excerpts to war, where the power to declare war belongs to Congress and not to the president.
The non-delegation principle
Bob Zadek states that there is a principle of law called the non-delegation principle, which says Congress lacks the constitutional power to delegate legislative functions to the executive Carol Berkin on The Bill of Rights No One Wanted (2016). He raises it in response to a caller, Roger, who argues that the regulatory state is not elected and therefore cannot be controlled even by a majority; Roger cites data that the people can vote on something like half of a percent of all federal employees, with the other 99.5 percent outside the electoral process. Roger points to statutory phrases such as “the Secretary shall decide,” which he says appear throughout Obamacare, as an instance of Congress punting to the regulatory state. Bob agrees that the phrase is exactly that delegation of power in the eyes of many, and adds that Congress has not preserved its constitutional prerogatives but has said to the executive branch, “Here, you deal with it, and you get the heat. We’re done.”
Bob also describes a theory that the entire administrative part of government is unconstitutional, which he says he did a show on about six or seven months earlier with a very smart fellow who argued persuasively that virtually the entire function of the administrative state is unconstitutional as an unfair delegation of power from Congress to the executive branch. He notes that this is not being debated very much in government because it is pretty much a done deal.
How regulators get the power
Sam Batkins, described in the episode as Director of Regulatory Policy at the American Action Forum, explains that a regulator is generally anyone in an independent regulatory agency — one of those commissions — or someone within a cabinet agency who has the ability to take the power delegated to Congress A Lame Duck’s Last Stand (2017). He cites the Affordable Care Act, also called Obamacare, as containing thousands of different delegations to “the Secretary should,” “the Secretary may,” giving regulators broad, open-ended authority to interpret and then carry out their own will through regulation.
Bob restates the point: legislators could have enacted not only the law but all of the rules necessary to carry out the law, and they did not. He calls the verb “delegation” crucial to the topic, and describes the legislator who says life is complicated and he has a life too, so he will not do what he is empowered by the Constitution to do but will give that power to somebody else his voters have never even met. Bob says the whole area of delegation is itself questionable, and asks whether delegation is where it all starts. Batkins agrees that it definitely is for the most part, and says Congress is starting to realize it has delegated a lot of power, which is why it is trying to take some back.
The REINS Act
Batkins says Congress has introduced legislation called the REINS Act, which stands for Regulations from the Executive in Need of Scrutiny A Lame Duck’s Last Stand (2017). Under it, any major regulation — again $100 million or more — would have to go through Congress first. Bob interjects that this includes every one, that everyone is in need of scrutiny. Batkins explains the rationale: because Congress delegated the power initially, sometimes 30 or 40 years ago, Congress can now go back to the well and get a chance to review the regulation before it actually has the effect of law.
Aspirational legislation
In a later episode, Bob Zadek returns to the same statutory pattern, saying that when Congress passes important legislation such as Obamacare, it is replete with “the Secretary shall,” which is simply a delegation Redefining the “Deep State” (2019). He compares such legislation to the 23rd Psalm or the Ten Commandments — a fine starting point for organizing your life, but you need a little detail besides just the Ten Commandments. Congress, he says, passes beautifully worded aspirational legislation, passes goals, and tells the administrative state to carry it out, then campaigns on the basis of the beautiful legislation it passed. But the legislation does not pass the test of being legislation because it is only aspirational. Jeffrey Bergner agrees that much legislation has a quality that sounds like “Go and do good,” and gives EPA legislation as an example: “Clean up the air.”
Delegation and war
The war-power discussion extends the concept beyond regulation. Bob Zadek notes that Madison considered the provision that war can only be declared by Congress, and not by the executive branch or the president, to be the most important single provision of the Constitution Chris Preble on Ukraine (2022). He asks how the country conducted what is called the Korean War, the Vietnam War, the war in Iraq, and the war against terrorism if only Congress can declare war. Chris Preble answers that when the founders wrote the Constitution there was no standing army, though there was a Navy; if the nation needed to go to war it would raise an army, fight, and then disband it and return to militias or what is now known as the National Guard. Since the Second World War in particular, he says, the United States has had a vast military establishment in being that exists at the discretion of the president, with few exceptions such as the War Powers Act and other legislation that attempts to tie his hands. As a practical matter, once the president has committed U.S. forces, Congress is understandably reluctant to cut off funds to the forces in the field — something the founders never would have anticipated.
Preble adds that authorizations exist, and that when the conduct of wars is challenged legally, courts have generally concluded that an authorization to use military force is sufficient; there are very few instances in American history where courts have overturned decisions of war and peace, and this is an area where they are most deferential to the other branches. His formulation of the argument to Congress is that it is up to members to do their jobs, and if they are offended by the erosion of their power, it is on them to take it back; so far there has not been sufficient interest, and the status quo prevails by inertia.
Bob then focuses on the phrase used immediately after 9/11: “Authorization to Use Military Force.” He argues that if you asked somebody in the fourth grade what a war is, they would probably say it is the use of military force, so the phrase seems to fit. He calls it hypocritical that authorizing a war, if the draft said “Authorize a war if you want, Mr. President,” would be an improper delegation of power — so the word war is taken out and replaced with something benign. Preble notes that during the Obama administration, members referred to the non-war in Libya as “kinetic military action,” and that wars are no longer exclusively fought by overt violence, with cyberattacks and malicious misinformation and disinformation capable of being wielded as weapons. He says it has grown more complicated and therefore more important to have a clear understanding of when the United States is in a condition of war and with whom, with the presumption otherwise being peace.
Judicial deference and the loss of the Ninth and Tenth Amendments
In the Bill of Rights episode, a caller, Michael, asks how the Ninth and Tenth Amendments got lost Carol Berkin on The Bill of Rights No One Wanted (2016). Bob Zadek answers that they got lost through judges — it is all the Supreme Court’s handiwork — because the Supreme Court, in what is called judicial deference, allowed Congress to be its own policeman as to what is constitutional and what is not. He says the fault lies foursquare in the Supreme Court: Congress behaved as it naturally would, collecting power as best it can, and it was the Supreme Court’s role to stop Congress if it read the Ninth and Tenth Amendments aggressively.
Carol Berkin’s contribution to that exchange concerns the Tenth Amendment specifically. She says the Anti-Federalists wanted to nail down that you cannot do anything that is not expressly mentioned as your right to legislate about, and that if “expressly” had been in there, the country would not have had the Bank of the United States and would not have acquired Louisiana — the whole history of the first many decades of the American nation would have been dramatically changed. She adds that today it would mean the government could not enforce traffic laws or build highways. When Bob clarifies that he means the federal government, Berkin agrees the federal government could not build highways, could not have had the EPA, because it was not expressly authorized. She also notes that the Ninth Amendment — rights not mentioned in the Bill of Rights but every bit as valuable as the enumerated rights — provoked no disagreement at all; the Framers were all in favor of it and worried only about leaving some right out.
Across episodes: no arc, one recurring charge
The excerpts show the same question argued in more than one episode, but they do not show a development in the argument so much as a repetition of it with different subject matter. In the 2016 Bill of Rights episode, the delegation problem is framed constitutionally and historically, through the missing word “expressly,” the Ninth and Tenth Amendments, and judicial deference; Bob Zadek and Carol Berkin supply the account, with a caller raising the regulatory state and Bob naming the non-delegation principle Carol Berkin on The Bill of Rights No One Wanted (2016). In the 2017 episode, Sam Batkins supplies the mechanics — the independent commissions and cabinet agencies, the thousands of delegations in the Affordable Care Act, the REINS Act and its $100 million threshold A Lame Duck’s Last Stand (2017). In 2019, Bob Zadek restates the aspirational-legislation critique with Jeffrey Bergner Redefining the “Deep State” (2019). In 2022, Chris Preble carries the same structure into war powers, where the authorization to use military force substitutes for a declaration and the courts remain most deferential Chris Preble on Ukraine (2022). What changes across the episodes is the speaker and the arena — regulation, then legislation, then war — not the underlying claim, which each episode asserts rather than revises.
What the sources do not cover
The excerpts do not state what any court held in a delegation case, nor do they name the case in which the non-delegation principle was applied or rejected. They do not give the text, sponsor, or legislative status of the REINS Act beyond Batkins’s description, and they do not say whether it passed. The Affordable Care Act is discussed only through the phrases “the Secretary shall” and “the Secretary may,” with no section, title, or provision identified. The war-powers discussion names no statute by its full title and no court decision, and the excerpts break off before several speakers finish their points.