Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks.1 In December 2006, the Department of Homeland Security declared its own authority to preempt state law on high-risk chemical plant security, announcing a procedure by which interested parties could apply to see if state law would be preempted.2 In both cases, states responded angrily. In the OCC case, the attorneys general of every state filed Supreme Court briefs opposing the agency's position in Watters v. Wachovia Bank, N.A.3 A joint brief filed by the National Conference on State Legislatures and the National Governors Association, also opposing the agency's position, argued that federal counterparts to state consumer protection laws were not adequate.4 In response to the Department of Homeland security, the state of New Jersey asserted its right to address risks presented by the seven high-risk chemical facilities located within its borders, more facilities than in any other state.5 Recent events have overtaken both agency actions. In the OCC case, the Supreme Court ruled that the relevant banking statutes were preemptive, mooting the impact of the agency action.6 The Department of Homeland security backed off its preemptive position to some degree in response to congressional pressure, especially from the New Jersey delegation, and ultimately Congress legislated a limited savings clause for state chemical facility security laws.7 The examples nonetheless remain significant because the agencies attempted to preempt state law.
Meanwhile, agencies have increasingly included preemptive statements in preambles to agency rulemaking documents. These have ranged from a January 2006 Food and Drug Administration (FDA) statement that failure-to-warn claims against pharmaceutical manufacturers are preempted because such claims could require more information on a drug label than the FDA requires, to a Transportation Department statement that states could not require any greater safety than its own "roof crush" standards for automobiles.8 In all of these cases, the statute includes no language preempting state law.
The agency statements are, of course, aimed at limiting the application of state statutes, regulations, and common law. In so doing, the agencies are staking a claim to federal authority over safety, health, the environment, or consumer protection. Federal preemption of state law is nothing new. Congress has long acted to preempt the application of state law and to limit state authority. In deciding preemption cases, as well as cases under the Commerce Clause, Tenth Amendment, and Eleventh Amendment, courts have refereed the distribution of authority between the federal government and the states.9
The recent events described above, however, suggest a change. In the context of preemption, federal administrative agencies increasingly seem to claim for themselves the authority to distribute power between the federal government and the states. Agencies have sought to preempt state law in notice-and-comment rules and have also issued statements with the apparent goal of influencing later judicial decisions on whether state law is preempted by a federal statute.
These recent events bring home the need to address whether agency preemption of state law is legitimate. Congress might directly answer the question by expressly confirming or limiting the authority of agencies to preempt state law. …