Transcript of OA338: Nondelegation and the “Administrative State”

Listen to the episode and read the show notes

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 338, I’m Thomas Smith, that over there is P. Andrew Torrez, esquire.  How ya doing?

Andrew:         I am fantastic Thomas, how are you?

Thomas:         I am probably still stuffed with non potato skin mashed potatoes.

Andrew:         [Laughs]  

Thomas:         Just pure, directly into my arteries.  That’s another reason you don’t want the skins in there, ‘cuz it’s just going in your bloodstream, it’s just so much potatoes, just part of my circulatory system.

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OA338: Nondelegation and the “Administrative State”

Today’s episode takes a deep dive into the nondelegation doctrine in light of a recent Kavanuagh comment on a case… in which the Supreme Court didn’t even grant certiorari. Is Andrew panicking? (No.) Listen and find out why not!

We begin, however, with a brief Andrew Was Wrong on taxation that calls back to OA 336. How exactly is stock income taxed? Listen and find out!

Then, it’s time for the main segment, which is a deep dive into the “administrative state” and specificially the “nondelegation doctrine” at issue in U.S. v. Gundy. Why did this last week signal the beginning of the end for Andrew & Thomas? Listen and find out!

After all that, it’s time for a listener question/comment on LIHEAP that helps contextualize how this program works in low-income communities. You won’t wan’t to miss it!

Then, of course, it’s time for #T3BE — the answer to Thomas Takes the Bar Exam #155 about a tenant who takes possession of an apartment only to find the previous tenant still inside. How can.. the landlord win? Listen and find out!


Thomas was just the main guest on Episode 498 of the Cognitive Dissonance podcast, and Thomas and Andrew make additional appearances to roast and be roasted for Vulgarity for Charity. If you’d like to have either of us as a guest on your show, drop us an email at

Show Notes & Links

  1. For an update on Chevron deference, check out our Episodes 40 and 136.
  2. In terms of Auer deference, check out our explainers in Episode 266 and 293.
  3. To get up to speed on the nondelegation doctrine, read Gundy v. U.S., 139 S.Ct. 2116 (2019).

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