This is the Cato Daily Podcast for Thursday, September 17, 2015.

I'm Caleb Brown.

The non-delegation doctrine isn't quite dead,

and the Supreme Court this term in the case of Department of Transportation

versus Association of American Railroads had an opportunity to clarify what

delegation really means.

They didn't take it.

Alexander Sasha Volk wrote the article detailing the case in the latest Cato Supreme Court review.

We spoke today.

So one thing that we see a lot in the modern day administrative state is that agencies all over the place are writing rules.

The EPA writes rules about environmental quality, the FDA rights rules, the FCC rights rules. That all looks like legislative activity and so you might ask well how can that be

constitutional, is that constitutional?

And the way that modern law handles this, it says that Article 1 of the Constitution defines

Congress and the very first sentence says that legislative power is vested in Congress.

And that's been interpreted to mean that Congress can never ever delegate any of its legislative power. Only Congress can use legislative power.

And so how can it be then that the EPA can write rules on environmental quality.

Well, the way that modern law deals with this is that they're not really exercising legislative

power because when Congress created the EPA and gave them power, They didn't just say, hey EPA, make

all of the good environmental rules you want. Instead they said EPA you have to

identify particular air pollutants, you have to regulate their tolerances by setting

particular air concentrations with a sufficient margin for safety, etc.

So actually Congress had a greater or lesser degree of specificity about what the EPA is supposed to do.

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