Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power

Article excerpt


This Article critiques the practice of limiting federal agency authority in the name of federalism. Existing limits bind agencies even more tightly than Congress. For instance, although Congress can regulate to the limits of its commerce power with a sufficiently clear statement of its intent to do so, absent clear congressional authorization an agency cannot, no matter how clear the language of the agency's regulation. Similarly, although Congress can preempt state law, albeit only when its intent to do so is clear, some commentators have read a line of Supreme Court decisions to hold that agencies cannot, except upon Congress's clear authorization.

A number of leading commentators have hailed this combination of rules on the ground that congressional control over questions of federalism should be preferred to agency decisionmaking. Congress, they claim, is more deliberative, more transparent to the public, and more accountable than the executive. Additionally, given the relative ease of enacting regulations rather than statutes, those who favor Congress fear that lower barriers to federal expansion in the executive would lead to runaway federal power.

We argue that both these sets of claims are, at best, only occasionally accurate. In many instances agencies are--or with wise doctrines of judicial review can be made to be--more democratic and deliberative than Congress. Although regulating almost always is easier than legislating, in many instances the need for additional speed bumps under the wheels of the executive is negligible or downright counterproductive. Thus, we argue for a more nuanced set of rules that would permit agencies in many instances to preempt or regulate without the need for express congressional approval.


  I. Federalism and Resistance Norms
 II. Comparative Institutional Capacity to Consider Federalism
     Concerns in Regulatory Matters
     A. Transparency of Legislative, Judicial and Federal
           Administrative Processes
        1. Congressional Transparency
        2. Judicial Transparency
        3. Agency Transparency
     B. Deliberation of Congressional, Judicial and
           Administrative Processes
        1. Congressional Deliberation
        2. Judicial Deliberation
        3. Agency Deliberation
     C. Political Accountability of Legislative, Judicial and
           Agency Processes
        1. Legislative Accountability
        2. Administrative Accountability
        3. Comparative Responsiveness to Contemporaneous
             Values of the Polity
III. Federalism
     A. The Case for Nuanced Evaluation of Federalism Effects
     B. Formalism Strikes Back: Must the Judiciary Have
        Exclusive Control Over Deliberations
        About Federalism?
     C. Deference and Other Details
 IV. Some Applications: Preemption and Avoidance
     A. Agency Preemption of State Law
        1. Congressional Power to Delegate Authority to
            Preempt State Law
        2. Agency Authority to Preempt
        3. Particular Agency Decisions to Displace State Law
     B. Constitutional Avoidance


There are few policy areas in the United States in which decisions are made wholly either at the federal or state and local level. States have taken up issues such as immigration reform and the global climate once thought to be exclusively in the realm of the federal government. (1) Similarly, federal regulators have aired views, sometimes said to be authoritative, on subjects once traditionally in the realm of states, such as tort liability for defective products. (2) Thus, the regulatory enterprise confronts the constant question of how best to divide up authority among different levels of government.

That problem, of course, raises a question of its own: who best to decide how best to divide? With some modest exceptions, most courts and commentators have looked to Congress. …