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Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Texas A&M Law Review

The administrative state has emerged as a pervasive machine that has become the dominate generator of legal rules—despite the fact that the U.S. Constitution commits the legislative power to Congress alone. When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “dele- gates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to its fullest. …