After learning why agencies need power, Gwen and Marc now explain how they use it. This episode breaks down the Administrative Procedure Act’s notice-and-comment process — the backbone of modern rulemaking — through the Department of Transportation’s debate over emotional-support animals on planes. This episode follows the DOT’s 2020 service-animal rule to show how notice-and-comment rulemaking actually works.

Listeners see every stage: publishing a proposal in the Federal Register, inviting and reviewing thousands of comments (including a mass-comment campaign for miniature horses), and crafting a final rule with a detailed preamble explaining the agency’s reasoning. The hosts show why public comments must be substantive, not just popular, and how agencies balance accessibility, safety, and consistency with laws like the ADA.

The discussion extends to the backup-camera mandate and the “ossification” problem — how decades of added procedures have slowed rulemaking to a crawl. Still, notice and comment remains the most democratic tool in the administrative state: it forces agencies to justify decisions, consider real-world impacts, and show their work.

Key Concepts: Notice and Comment Rulemaking | Administrative Procedure Act | Federal Register | Mass Comment Campaigns | Preamble | Ossification | Public Participation Examples: DOT service-animal rule | Miniature horse debate | Backup camera mandate | Benzene rule timeline

Takeaway: Rulemaking may be slow, but it’s democracy in action — transparency and accountability woven into the machinery of expertise.

🎧 Listen on Spotify | Apple Podcasts | remediespodcast.com

After 1935, the Supreme Court mostly gave up enforcing the Nondelegation Doctrine — but it didn’t give agencies unlimited power. In this episode, Gwen and Marc use relatable examples — a micromanaging homeowners association and an overzealous parks director — to explain how an “intelligible principle” keeps delegation from turning into dictatorship. From HOA lawn rules to broadband speeds, they show how Congress can give agencies discretion without letting them run wild.

They walk through real-world statutes that rely on this idea — from OSHA’s “reasonably necessary and appropriate” safety rules to the FCC’s “public interest, convenience and necessity” standard — and discuss how courts review those limits. The conversation ranges from the Benzene case and generic-drug bioequivalence to broadband definitions that evolve as technology changes.

Key Concepts: Intelligible Principle | Delegation Boundaries | OSHA | FCC | SEC | Benzene Case | Generic Drugs | Agency Flexibility Examples: HOA analogy | Youth sports director analogy | EPA air-quality standards | FDA bioequivalence | FCC broadband speed

Takeaway: Delegation is inevitable — but guardrails matter. An intelligible principle ensures expertise can flourish without collapsing into favoritism or tyranny.

🎧 Listen on Spotify | Apple Podcasts | remediespodcast.com

Journey back 90 years to 1935 - the one and only year the Supreme Court decided that Congress had tried to delegate too much power.

If delegation is so useful, why can’t Congress delegate everything? Gwen and Marc explain the Nondelegation Doctrine through analogies to filmmaking and explore how Supreme Court cases—including Schechter Poultry—define the boundary between lawmaking and execution.

Gwen and Marc trace the constitutional limits on delegation, from the “sick-chicken case” to today’s administrative realities. They show how the Court balanced principle and practicality, and how agencies like the TSA apply flexible judgment while staying within statutory bounds.

Key Concepts: Nondelegation Doctrine | Separation of Powers | Schechter Poultry | Panama Refining | Yakus | Agency Adaptation

Examples: Supreme Court cases (1935–1944), TSA 3-1-1 rule, shoe-screening policies

Takeaway: Congress must set the “what”; agencies decide the “how.” Nondelegation guards that line—and modern governance depends on keeping it workable.