Administrative Law as the New Federalism

By Metzger, Gillian E. | Duke Law Journal, May 2008 | Go to article overview
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Administrative Law as the New Federalism


Metzger, Gillian E., Duke Law Journal


ABSTRACT

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

INTRODUCTION

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 government.

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