Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes
Bendor, Josh, Farmer, Miles, The Yale Law Journal
NOTE CONTENTS INTRODUCTION I. LEGISLATIVE SILENCE AND JUDICIAL CHAOS A. Cooperative Federalism and Administrative Law B. The Law Today 1. The Hole in the Administrative Procedure Act 2. Why the Judicial Silence? 3. Courts' Discussion of the Doctrine i. Standard of Review for State Agency Actions ii. Statutory Interpretation iii. Other Doctrines iv. A Path Forward II. ESTABLISHING A FRAMEWORK FOR THE ADMINISTRATIVE LAW OF COOPERATIVE FEDERALISM A. The Kimbell Foods Presumption in Favor of State Law B. The Value of the Kimbell Foods Presumption in the Cooperative Federalism Context 1. Why Cooperative Federalism Should Lean Toward State Law 2. Why Not a Blanket Rule in Favor of State Law? C. How Kimbell Foods Should Work ill the Cooperative Federalism Context 1. Uniformity 2. Readily Applicable Analogous Statutes 3. Frustration of the Federal Scheme CONCLUSION
Administrative law scholarship focuses almost exclusively on federal agencies implementing federal laws. (1) Yet state agency implementation of federal statutes--cooperative federalism (2)--is an integral part of our administrative state in fields ranging from environmental law to health care to education. (3) When state agencies are sued for violating cooperative federalism statutes they administer, courts must decide what doctrines of administrative law should apply. Does federal or state law control? If federal, should these agencies be treated like their federal counterparts, or must new rules be developed to accommodate the unique issues posed by state agencies?
Surprisingly, courts and scholars alike have given scant attention to those fundamental questions.
The recent scholarship most on point is Abbe R. Gluck's article Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond. (4) Gluck exposes the gap that has existed in current scholarship regarding the role of state agencies in statutory interpretation. Gluck, other scholars, and the federal courts have recently considered whether state agencies interpreting cooperative federalism statutes that they administer should receive Chevron deference. (5) But Chevron deference is only one of many doctrines that must be transposed to the context of cooperative federalism. Courts must also determine, for example, whether state or federal law should govern, which actions are reviewable, what standard of review to use, and who bears the burden of proof in agency proceedings.
When facing these questions, courts operate with very little guidance from statutory or common law. The federal Administrative Procedure Act (APA) does not include state agencies within its ambit. (6) And federal common law doctrines of administrative law have been developed with federal, not state, agencies in mind. Furthermore, state administrative law doctrines that usually apply to state agencies often diverge considerably from federal law. As we discuss infra Section I.B, in the face of this difficult and undertheorized issue, courts have acted reflexively, applying the law that is most familiar to them. Federal courts apply federal law while giving little, if any, consideration to state law. State courts, by contrast, often apply state law while giving inadequate consideration to federal law. In part, this chaotic situation exists because courts and commentators have not identified the issue.
By always applying one form of law, both state and federal courts treat the issue too simply. There is great diversity in cooperative federalism regimes and administrative law doctrines. In some cases, it will be wise to follow the distinctive rules that states have created to govern their own institutions. In other cases, it will be wise to ensure uniform policy across the nation. …