The United States government, as discussed across episodes of The Bob Zadek Show, is treated less as a fixed institution than as a set of separated powers whose boundaries have shifted over time. Bob Zadek frames the founding design as a response to the fear of concentrated power, while Richard Epstein traces how a “fourth branch” of independent agencies emerged in the twentieth century. Other episodes examine specific exercises of federal authority — the release of prisoners from Guantanamo, aspirational international climate commitments, and an expansive military posture abroad — each raising the question of whether the government remains within its intended limits.
The founders’ design and the fear of concentrated power
In the June 2014 episode, Bob Zadek states that the founders lived in intense fear of any concentration of power, whether in an individual, a company, a union, or a governmental entity, because the temptation for anyone holding power to accumulate and abuse it is too great. He describes the system of checks and balances as built on three co-equal branches — executive, legislative, and judicial — each acting as a check on the accumulation of power of the others. That, he says, was the hope and the design of the founders. Matt Zwolinski on Bleeding Heart Libertarianism (2014)
Zadek applies this framework to the Obama administration, which he says has accumulated power in the executive at the expense of the legislative and, to some degree, the judicial branches. He acknowledges the Bush administration was guilty of this to a fair degree as well, but says Obama is doing it “on steroids.” As the executive, meaning one person, accumulates power at the expense of the other branches, Zadek says, it starts to feel despotic, as if the country is governed by a king. He adds that he does not want to be dramatic and go back to King George in the American Revolution, but that it has that feeling of one person making decisions unchecked by the other branches.
Executive overreach and the Bergdahl controversy
Zadek calls the Bowe Bergdahl controversy a blatant example of executive overreach. He recounts that Congress enacted a statute, which the president signed, requiring that any president who intended to release prisoners from Guantanamo had to give certain members of Congress 30 days’ advance notice. In Zadek’s account there is no wiggle room and no exceptions: that is the law. The Obama administration, he says, simply ignored that law. He emphasizes that no person, regardless of their position in government, is above the law, and that the country is one of laws, not of men. Matt Zwolinski on Bleeding Heart Libertarianism (2014)
Zadek plays a recorded clip of Matt Welch, whom he identifies as working at Reason magazine and the Reason Foundation and as a participant on a television show called The Independents. In the clip, Welch says the president was elected as a constitutional scholar to restore balance to the runaway executive branch, and that disregarding the statutory authority to inform Congress 30 days’ notice — instead of about five hours before or after the fact — shows how far the president has come unmoored from the basis of his presidency, which Welch describes as rolling back the Bush-Cheney expansion of executive power. Welch calls it egregious and says that people shrugging at it, including supporters who say it is illegal but, shows what kind of poison partisan mindsets have.
The administrative state as a fourth branch
In the March 2020 episode, Richard Epstein describes the “modern administrative state” as sometimes called a fourth branch of government — something outside the scope of the previous three branches and independent of them in some degree. He dates its most conspicuous development to 1934, in a case called Humphrey’s Executor, where it was announced that the President of the United States could not fire commissioners of the Federal Trade Commission. The Dubious Morality of the Modern Administrative State (2020)
Epstein explains that administration is necessary to get things done, listing functions such as who is entitled to drive a car, who owns a piece of property, who must pay a certain tax, and who is eligible to vote. He notes that the judiciary is left out of much of this because it cannot initiate, only decide cases brought before it, so the distribution of the administrative state takes place between the President as head of the executive branch and Congress. He compares the President to a CEO and Congress to a board of directors, observing that the line between their responsibilities is murky.
Epstein traces an early dispute in the 1790s over where to put post offices in the United States. The question was whether Congress should designate all the places by legislation and give the list to the President to contract, or give a set of criteria and let the President choose the site and execute. When the debate came forward in 1793, the skeptics who said the President did not have power to select post office sites won out. Epstein says that as the country grew a hundred times larger and the post office system a thousand times more complicated, the division of power necessarily shifted from a deliberative body to an executive body, so the administrative state would be more heavily weighted to the President, with Congress setting parameters and the President executing them.
Epstein says that for a long period up to about 1937, this was largely what people tried to do. The administrative state had to raise a military, with systems for promotion, retention, firing, salaries, and retirement pensions, and a civil service with the same. The United States government in the early days was a repository of large amounts of land, with debate over what contracts it could enter into with railroads to give land away in exchange for something coming back. There was also a tariff system, with someone calculating tariffs on particular goods according to formulas. Epstein says the size of government in this period was about one or two or three percent of GDP, larger in times of war.
Aspirational commitments and domestic law
In the August 2017 episode, Bob Zadek argues that when one reads about the Paris Accords — Obama agreeing to them and Trump saying he is not bound by them — it is a vacuous, empty debate, because Obama and therefore the United States government was never bound to anything. He calls it aspirational, like eating less sugar and behaving better, and says Trump signing off is not any kind of legal or contractually or treaty-driven change. Richard Epstein on Climate Change (2017)
Richard Epstein responds that in the international arena you could pull out, but once these aspirations exist, the entire web of domestic law dealing with environmental materials can be galvanized. The President can say the country is under an aspirational obligation, not legally enforceable, to do something, making it easier to say existing or new statutes will make these things command-and-control operations internal to the United States. Epstein says the reason to get out was to make sure the domestic environmental establishment was not directed toward carbon dioxide when it could be directed against things that are much more important. He says he is not competent to answer the ultimate science on how small particulate matter hurts lungs, but that what you really want is to concentrate on traditional forms of pollution with asthma, emphysema, and other bronchial diseases. He recalls moving to Los Angeles in 1968 and visiting San Marino, where the air was so filled with pollution that your lungs felt they were being stabbed by a thousand little knives, and notes that houses closer to the Pacific Ocean were more expensive because people were buying freedom from air pollution. He says that gradient is surely down because of massive improvements, and that the debate is how much is driven by law and how much by technology. A well-designed legal system that figures out the social cost of pollutants and puts a tax or prohibition on them will impose market incentives, and a cap and trade system for sulfur dioxide or nitrous oxide is probably a fairly good thing, though much more difficult with carbon dioxide.
Military posture and foreign entanglement
In the October 2017 episode, a caller identified as Jacob from San Jose asks John Glaser about Clark Air Force Base and Subic Bay Naval Base in the Philippines, saying the United States government had these bases but they did not prevent the expansion of China into the South China Sea at the time of Lyndon Baines Johnson’s administration. Rethinking Pax Americana with John Glaser (2017)
Glaser responds that with regard to the Philippines it is a good point about the past, and that he is even more concerned about the present. He notes that China has maritime and territorial disputes with all of its neighboring rivals, most of whom along the Asian littoral the United States has alliances with or military bases in, and that if there is some kind of inadvertent escalation with those rivals in the South China Sea, the United States could get entangled. He agrees the bases did not deter China in the past and do not seem to be deterring China currently in its claims.
On the caller’s second question, Glaser says non-defense experts overruling defense experts indeed happens, partly because of a zeitgeist among policy experts in Washington, D.C. that the country needs an expansive military posture and definition of national interests. He says the military’s bias tends to be to uphold current commitments, which are extremely expansive, but that the military is sometimes reluctant to engage in new commitments. As an example, he says the Obama administration got pushback from the military, particularly the Joint Chiefs of Staff, against going into Libya and engaging in that kind of air war against the Gaddafi regime, but that it was pushed by people like Hillary Clinton and Samantha Power and “humanitarian interventionists,” and they got overruled. Once engaged, the military was supportive of efforts in Libya, but Glaser says it is usually the case that the military is wary of new conflicts because they know what war is like, while a civilian aspect pushes the country to stick its nose in even more places.
Across episodes: the growth of federal power
The excerpts show a recurring concern with the scope and concentration of federal power, but they do not trace a single line of development. In the 2014 episode, Bob Zadek argues from the founders’ design that the Obama administration concentrated executive power and ignored a statute requiring 30 days’ notice to Congress before releasing Guantanamo prisoners. In the 2020 episode, Richard Epstein offers a longer historical account, dating the modern administrative state to Humphrey’s Executor in 1934 and explaining why the division of power shifted from Congress to the President as the country grew. The 2017 climate episode has Zadek calling the Paris Accords aspirational and Epstein explaining how such commitments can galvanize domestic law, while the 2017 foreign policy episode has John Glaser describing an expansive military posture and civilian pressure for intervention. The episodes touch the topic from different angles rather than advancing a shared argument.
What the sources do not cover
The excerpts do not state the full name or holding of Humphrey’s Executor beyond the President’s inability to fire Federal Trade Commission commissioners, nor do they identify the specific statute governing notice of Guantanamo prisoner releases. The state in which San Marino is located, the outcome of the Bergdahl matter, and the terms of the Paris Accords are not given. The excerpts also do not describe the judicial branch’s role in the administrative state beyond its inability to initiate cases.