Strategic Institutional Positioning
Authors: Kochan Donald J. 
Published: June 2020

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. Once agencies are let loose by broad grants of rulemaking authority and they are off to the races, we are also often left scratching our heads wondering why Congress fails to intervene ex post to alter the law, to check administrative agency overreach, or to clarify its intent and preferences. This Essay seeks to explain why none of the institutional dynamics we observe in adminis- trative law should be surprising, with particular emphasis on environ- mental laws and rules. It will explain why both Congress and agencies have strategic interests at stake that cause them to position their activ- ities in manners that make each complicit in expansion of the regula- tory state and the collapse of the containment walls designed to keep lawmaking inside Congress.

This Essay specifically critiques Congress for its abdication of re- sponsibility in the natural resources and environmental space—a place where the problem of congressional acquiescence in the demise of its own power is particularly acute. This Essay will begin by discuss- ing the necessity of legislative clarity and intervention in these fields, but it will also contemplate why we often see neither. It will then pro- ceed to some specific examples that illustrate these points.

Part II introduces fundamental ideas of separation of powers and the Framers’ design for adherence to that separation. Part III identi- fies motivations for Congress to legislate broadly and to disengage from a supervisory role over agencies, despite contrary intentions in the Framers design. Part IV discusses agencies as self-interested actors that will accept legislative-like authority if it is offered to them. Part V uses case studies on National Monuments and the Waters of the United States (“WOTUS”) Rule as demonstrative of the strategic positioning phenomenon. And, Part VI explains why environmental law is an area in which we can predict a high frequency of these problems of congressional abdication that enables administrative overreach.

By revealing these realities of strategic positioning by both Con- gress and the Executive, it can be better understood why an environ- mental law generated without optimal (or even fully constitutional) engagement by Congress is increasingly developing. The goal is to ex- pose the threat these institutional interests pose to preserving the sep- aration of powers and to begin identifying the areas to target, if the current allocation of authority for generating the core requirements of environmental law is to be realigned with greater fidelity to original constitutional design.