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Administrative and Executive agencies make rules all the time and have done so from the get go. So for example, they can establish rules for the conduct of their own officers and the organization of their agency and so on and so forth. Those kinds of rules arent particularly problematic. They also issue rules, however, with binding legal force in ways that restrict private conduct and may restrict the exercise of private rights and its those rules with binding force that pose delegation or non delegation problems, to what extent must Congress make those rules on its own. Congress can leave the minutiae to an agency that is to say, if this is really sort of a matter of defining what exactly is a smoke stack, and what is a chimney, Congress cannot realistically, make that decision on its own. Its perfectly okay to delegate that to an agency. Once youre dealing with rules that are much more contestable, affect a whole lot more people, restrict private liberty or private rights to a gr