I am George Mason University Foundation Professor of Law at the George Mason University School of Law in Arlington, Virginia. I have been at George Mason since 1983. I have long been active in the Administrative Law and Regulatory Practice Section of the American Bar Association, chairing several committees and serving in section-wide offices from 1985 to 1994.
Agencies have no inherent power to make law.
Agencies may affect private citizens only to the extent authorized by the Constitution and acts of Congress. My simple thesis is that an agency can bind the public only in the ways Congress has authorized it to bind the public. Otherwise, even though it is a federal agency, it has no more right to command members of the public than a bullying stranger would have. Congress determines agencies lawmaking powers in two distinct ways. First, acts of Congress specify the subject matter on which the agencies can act.