The non-delegation doctrine is a constitutional principle holding that a legislature cannot transfer its legislative power to another body—an administrative agency, an executive, or a council. On The Bob Zadek Show, guests returned to the doctrine as the structural defect underlying the modern administrative state, arguing that when legislatures pass broad statutes and let unelected officials fill in the details, both accountability and individual rights suffer.
The principle and its constitutional basis
Bob Levy, discussing the OSHA vaccine mandate, gave the doctrine its textual foundation: the first sentence of the Constitution after the preamble vests all legislative powers in Congress. The framers, he said, intended that voters could respond to an oppressive law by changing the membership of Congress—a remedy unavailable when murky statutes let one of Washington’s roughly 320 regulatory agencies supply the oppressive details. Congress’s powers are not inherent but delegated to it by the people through the Constitution, so Congress cannot re-delegate them without the people’s consent. Levy added that the separation of powers, a centerpiece of the Constitution, forbids combining legislative, executive and judicial functions in one entity, yet most administrative agencies exercise all three. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Levy described the judicial test that grew up around the doctrine: courts say Congress may delegate legislative functions to agencies as long as it lays down an “intelligible principle” so the agencies know how to fill in the gaps—but, he said, nobody has quite figured out what constitutes an intelligible principle. The result, in his account, is that federal agencies now dwarf Congress in rulemaking: the Code of Federal Regulations runs to more than 200 bound volumes, about six times the size of the U.S. Code containing all laws passed by Congress. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Delegation and the vaccine mandate
Levy framed the OSHA mandate as a delegation problem with two questions: whether Congress can delegate this kind of authority to OSHA, and whether it actually did. On the second, he pointed to the statute giving the Secretary of Labor authority to issue an emergency temporary standard for six months to protect workers from a “grave danger” from exposure to toxic or physically harmful substances or agents. He called that principle overbroad, with no limiting principle: what if there is herd immunity, or a person has natural immunity from having contracted COVID—is there still a grave danger? A Libertarian Legal Perspective on Vaccine Mandates (2021)
The first of Levy’s five arguments against the mandate on private employers was that Congress cannot delegate such broad power to OSHA. His other arguments were that Congress did not in fact delegate it, that the states hold the police power over health and safety, that a health mandate is not a proper exercise of the commerce power, and that the feds may not commandeer private parties to do what the feds themselves cannot do. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Bob Zadek supplied the political dynamic: when the federal government wonders whether it has power, it pokes around for a statute Congress enacted—not with a pandemic in mind—that is broad enough to delegate. OSHA’s broad power over workplace safety, he said, had been lying around since 1971 before someone in the White House dusted it off. A Libertarian Legal Perspective on Vaccine Mandates (2021)
The courts as the last bulwark
Zadek described the cycle that delegation produces: Congress enacts broad legislation like clean air or clean water, gets credit for improving life, and the agencies receive carte blanche; when people are angry they are angry at the agencies, not Congress; Congress then drags agency heads to the Hill to criticize them for taking advantage of the authority Congress gave them. He called this passing the buck on governmental steroids. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Levy said the courts are forced to make what they are reluctant to make—political decisions about whether the executive branch went too far—leaving the judiciary the ultimate dominant branch, never as intended. He cited Chief Justice Roberts’s focus on the institutional respectability of the court, and noted that other justices, particularly Breyer and Clarence Thomas, have taken pains to assure the public the court is not politicized. When delegation cases arrive, the court is forced into a political mold it wants to avoid, because Congress has given it no precise guidelines to apply. Levy called the court our last bulwark against violating constitutional requirements, charged with keeping the legislative and executive branches bound by the chains of the Constitution. A Libertarian Legal Perspective on Vaccine Mandates (2021)
The New Civil Liberties Alliance and the revival
Philip Hamburger described the New Civil Liberties Alliance, founded about three or four years before the interview as an alternative to the ACLU—doing what the ACLU should have been doing but has not. The organization defends procedural rights like jury rights and due process, speech rights, and the right to govern ourselves through legislation rather than administrative rules, through litigation, with a team of about 20 in Washington, D.C. Among its successes, Hamburger said, it got the Supreme Court to reconsider its non-delegation doctrine and its deference doctrines in which courts defer to administrative agencies. Philip Hamburger on Court Packing (2021)
Hamburger placed the doctrine within a broader argument about court packing. He said that through intimidation the court has legitimized administrative power taking away most procedural rights, like juries, and the right to govern ourselves through Congress, and that progressives who sought the administrative state now want still more power on the Supreme Court, while conservatives argue through logic for defense of rights rather than making a power move. Philip Hamburger on Court Packing (2021)
Delegation at the state level
Richard Epstein applied the doctrine to a California statute setting up a fast-food council. The council has 10 members, 8 appointed by the governor and one each by the head of the assembly and by the Senate. Epstein described the composition as strange: two appointees whose job is to be fast food advocates for workers—not workers themselves but political—plus two supposed representatives of employers and two of franchisees, all appointed by the governor, with nothing requiring him to appoint people who care about what franchisees believe. By Epstein’s count, the best case is a six-to-four majority in favor of whatever the labor unions want, and the vote could go to nothing if employer representatives cave because the governor can move them. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Epstein said the first question is whether this kind of delegation to the governor is possible at all, and noted a recent move in federal constitutional law saying the non-delegation doctrine, left for dead many years ago, is something you seriously have to take into account. The doctrine, in his formulation, says that if something looks to be legislation it has to be decided by the legislature; the standard verbiage is that the legislature must set out the outlines of the statute and the governor or administrative agency can throw in the detail. Here, he said, there is no outline and absolutely carte blanche. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Epstein also described local councils that can only recommend to the center, not decide. He explained the wage-profile problem: the same $22 minimum wage would have the most modest effect in San Francisco, where the market wage is already at $22 or very close to it, but could be devastating in the central counties where the market wage is probably around 13 or 14 dollars, driving everybody out of business. He called this a classic case of why administrators fail—local variations become unworkable, a single standard fits badly—and concluded that the correct answer is you ought not to do it at all. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Across episodes
The doctrine appears in three episodes spanning 2021 to 2023, and the treatment shifts with the forum. In the 2021 vaccine-mandate episode, Levy argued the doctrine as a limit on federal agency power and described the courts as the last bulwark; in the same year, Hamburger reported that his organization had already persuaded the Supreme Court to reconsider the doctrine. By the 2023 episode, Epstein treated the doctrine as a live federal question—no longer left for dead—and applied it to a state statute delegating authority to a governor-appointed council. The through-line is the same argument at three levels: federal agency, federal court, and state legislature.
What the sources do not cover
The excerpts do not state the outcome of any non-delegation case, nor identify which Supreme Court decisions, if any, the New Civil Liberties Alliance’s efforts produced. They do not give the name of the California statute or the OSHA provision beyond Levy’s description of an emergency temporary standard. The founding date of the New Civil Liberties Alliance is given only as about three or four years before the 2021 interview, and the excerpts do not describe the intelligible-principle standard’s origin in any particular case.