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.
Gillian E. Metzger,
Administrative Law as the New Federalism,
57 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol57/iss7/2