Clarence Thomas is mentioned in The Bob Zadek Show only once, and only in passing: as one of the Supreme Court justices who, in the view of guest Bob Levy, has taken pains to assure the public that the Court is not politicized. The excerpts contain no treatment of his opinions, his confirmation, his judicial philosophy, or his biography. What can be written here is therefore limited to the single context in which his name appears.
The 2021 vaccine-mandate episode
The episode of 20 September 2021, “A Libertarian Legal Perspective on Vaccine Mandates,” is a conversation between host Bob Zadek and Bob Levy about the non-delegation doctrine and the administrative state, prompted by OSHA’s asserted authority to issue an emergency temporary standard on vaccines. Levy frames the discussion around two questions: whether Congress can delegate authority of this kind to OSHA, and whether, if it can, it in fact did so A Libertarian Legal Perspective on Vaccine Mandates (2021).
Levy’s answer to the second question turns on the statutory language. He says the statute gives the Secretary of Labor authority to issue an emergency temporary standard, which OSHA uses for six months to protect workers where there is a “grave danger” from exposure to substances or agents determined to be toxic or physically harmful. He calls that principle overbroad, arguing there is no limiting principle and that it is unclear what constitutes a grave danger — asking, for instance, whether herd immunity or natural immunity from having contracted COVID would change the analysis. He labels this the statutory question.
The constitutional question, which Levy treats as the threshold one, is whether Congress can delegate this kind of authority to an administrative agency at all. He notes that the first sentence of the Constitution after the preamble vests all legislative powers in Congress, and explains the framers’ reasoning: if Congress passes an oppressive law, voters can respond by changing the membership of Congress. Where a law is murky and Congress lets one of roughly 320 regulatory agencies in Washington, D.C. fill in the oppressive details, he argues, the courts do little about it and voters can do little about it, because the agencies and cabinet departments are run by unelected bureaucrats not responsive to the political process. Congress’s powers, in his account, are not inherent but delegated to it by the people through the Constitution, and cannot be re-delegated without the people’s consent through that same document. He adds that the separation of powers does not permit combining legislative, executive, and judicial functions in one entity, yet most administrative agencies exercise all three.
Levy then summarizes what the courts have said: that Congress is not supposed to pass the buck, but that governing is complicated, and agencies may have this power as long as Congress lays down what is called an intelligible principle so the agencies know how to fill in the gaps. He observes that nobody has quite figured out what that means. After Bob Zadek asks him to repeat a sentence that was muddled in transmission, Levy restates it: delegation of legislative functions to agencies and executive departments is acceptable, says the court, as long as Congress lays down an intelligible principle, but nobody has quite figured out what constitutes one. The result, Levy says, is that the Washington, D.C., alphabet agencies are operating overtime — HHS regulating healthcare, the FCC trying to control the internet, the Consumer Financial Protection Bureau making mischief under the Dodd-Frank Act. Federal agencies, he says, now dwarf Congress in making rules that control what Americans can do, and those rules are compiled in the Code of Federal Regulations, now more than 200 bound volumes, about six times as large as the U.S. Code containing all the laws passed by Congress.
The judiciary as the last bulwark
In the segment titled “The Judiciary as the Last Bulwark,” Bob Zadek describes the political dynamics: Congress enacts broad legislation, gets credit for it, gives agencies carte blanche, and then, when people are angry, drags agency heads to the Hill to criticize them on C-SPAN for taking advantage of the broad authority Congress gave them. He calls this passing the buck on governmental steroids. The question of whether an agency went too far ultimately falls to the courts, which are then forced to make what he calls political decisions — the last thing the judicial branch wants.
It is in this context that Levy names Clarence Thomas. Levy says Chief Justice Roberts has focused on ensuring the institutional respectability of the Court, and has pointed out that to the extent the Court is politicized, its respectability diminishes and the public’s willingness to abide by its dictates correspondingly diminishes. Levy then says that the Chief Justice, and as seen in some recent speeches and writings some of the other justices as well, particularly Breyer and Clarence Thomas, have taken pains to ensure everybody that the Court is not politicized. That is the whole of what the excerpts say about Thomas.
Levy goes on to say that when cases involving delegations of power by Congress to administrative agencies come before the Court, the Court is forced into a political mold it wants to avoid. The Court, he says, wants to be able to say there are clear, precise guidelines drafted by Congress and that they have either been complied with or violated. When Congress gives no guidelines at all and simply delegates power to an administrative agency or an executive branch agency, the Court has no legislation to refer to in determining whether statutory obligations have been complied with. He agrees with Chief Justice Roberts that this diminishes the intellectual and institutional respectability of the Court. The Court, he says, is our last bulwark against violating constitutional requirements, and it is the Court’s job to make sure the legislative and executive branches are bound by the chains of the Constitution; when those branches abdicate the authority the Constitution gives them, the Court is put in a very difficult position.
Bob Zadek closes the episode by thanking Levy for his contribution and his writings and for his leadership of Cato, which he describes as the preeminent American, if not global, think tank on personal liberty, individual choice, and very limited government. Levy directs listeners to cato.org.
Across episodes
Only one episode in the excerpts mentions Clarence Thomas, so the excerpts show no development in how the show treats him.
What the sources do not cover
The excerpts say nothing about Thomas’s jurisprudence, his opinions or votes, his confirmation, his tenure on the Court, or any case bearing his name. They do not indicate what he has written or said about the non-delegation doctrine, the administrative state, or vaccine mandates — only that Levy lists him among justices who have publicly maintained that the Court is not politicized. No other episode in the excerpts touches on him, and the single mention is a passing one within a discussion whose subject is delegation and the administrative state.