Despite the recognized impact that the national administrative state has had on the federal system, the relationship between federalism and administrative law remains strangely inchoate and unanalyzed. Recent Supreme Court case law suggests that the Court is increasingly focused on this relationship and is using administrative law to address federalism concerns even as it refuses to curb Congress's regulatory authority on constitutional grounds. This Article explores how administrative law may be becoming the new federalism and assesses how well-adapted administrative law is to performing this role. It argues that administrative law has important federalism-reinforcing features and represents a critical approach for securing the continued vibrancy of federalism in the world of administrative governance. It further defends this use of administrative law as constitutionally legitimate. The Article concludes with suggestions for how the Court should develop administrative law's federalism potential.
TABLE OF CONTENTS Introduction I. A Federalism and Administrative Law Sextet A. Federalism's Appearance in Administrative Law Challenges 1. ADEC v. EPA 2. Gonzales v. Oregon 3. Massachusetts v. EPA B. Administrative Law's Appearance in Federalism Challenges 1. Gonzales v. Raich 2. Watters v. Wachovia Bank, N.A 3. Riegel v. Medtronic II. Administrative Law as a Federalism Vehicle A. Administrative Law as the New Federalism 1. The Absence of Constitutional Federalism Curbs on Congress 2. The Absence of Subconstitutional Federalism Doctrines 3. Administrative Law as a Federalism Vehicle B. Ordinary Administrative Law and Federalism 1. Administrative Procedure: Redress and Participation 2. Reasoned Decisionmaking 3. Statutory Interpretation Doctrines C. Special Federalism-Inspired Administrative Law 1. Massachusetts and Special Rules for State Standing 2. Heightened Substantive Scrutiny to Protect State Interests D. Administrative Preemption III. Assessing the Use of Administrative Law as a Federalism Vehicle A. Is Administrative Law an Adequate Vehicle for Addressing Federalism Concerns? 1. Political Accountability and State Influence on Federal Agencies 2. Potential Pitfalls of Federal Agencies: Aggrandizement, Tunnel Vision, Capture, and Lack of Expertise 3. Administrative Law's Procedural and Substantive Requirements 4. The Capaciousness of Administrative Law 5. The Normalizing Function of Administrative Law B. The Legitimacy of Administrative Law's Use as a Federalism Vehicle IV. Enhancing Administrative Law's Effectiveness as a Federalism Vehicle A. Reinforcing Agency Attentiveness to State Interests 1. Federalism and Administrative Procedure 2. Greater Scrutiny of Agency Decisions that Burden State Interests B. Ordinary or Extraordinary Administrative Law? Conclusion
Few doubt the tremendous impact that the modern administrative state has had on the nation's federal system. Congress and the president have long acknowledged the relationship between federalism and administrative government, incorporating the states as central players in major federal regulatory schemes. (1) Scholars, too, have taken heed. In particular, federalism scholarship's growing fixation with preemption has underscored the effect of federal administrative action on the states. (2) Recent aggressive efforts by federal agencies to preempt state law, especially state tort law, have brought to the fore the crucial link between federalism and administrative …