Executive Preemption

Authors

Ernest A. Young, Duke Law SchoolFollow

Document Type

Article

Publication Date

2008

Keywords

preemption doctrine, federalism

Abstract

Preemption of state regulatory authority by national law is the central federalism issue of our time. Most analysis of this issue has focused on the preemptive effects of federal statutes. But as Justice White observed in INS v. Chadha,“[f]or some time, the sheer amount of law . . . made by the [administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.” Whether one views this development as a “bloodless constitutional revolution” or as a necessary “renovation” of the constitutional structure in response to the complexity of modern society, the advent of the administrative state has profound implications for the Constitution’s core commitments to federalism and separation of powers in general and for preemption doctrine in particular. Specifically, preemption doctrine has yet to resolve the extent to which executive action should be treated differently from legislation, or to grapple with the considerable range of diverse governmental activities that march under the banner of executive agency action.

Federal administrative action is, in important ways, considerably more threatening to state autonomy than legislation is. As the constitutional limits on national action fade into history, the primary remaining safeguards for state autonomy are political, stemming from the representation of the states in Congress, and procedural, arising from the sheer difficulty of navigating the federal legislative process. These safeguards have little purchase on executive action. The states have no direct role in the “composition and selection” of federal administrative agencies, and much of the point of such agencies is to be more efficient lawmakers than Congress. Agency action thus evades both the political and the procedural safeguards of federalism.

It remains true, of course, that “an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it.” But as Colin Diver observes, “a defining characteristic of the administrative state [is] that most statutes are not direct commands to the public enforced exclusively by courts, but are delegations to administrative agencies to issue and enforce such commands.” Preemption doctrine has developed primarily as a doctrine of statutory construction, focused on the intent of Congress, and transporting that doctrine into the administrative law context raises a number of difficult problems of translation. The Supreme Court’s preemption jurisprudence, unfortunately, has tended to ignore these problems. Instead of structuring preemption doctrine to account for the distinct position and characteristics of administrative agencies, the Court has tended to say simply that “[f]ederal regulations have no less pre-emptive effect than federal statutes.”

I try to do a little better than that in this Article by addressing two basic sets of problems. The first involves questions of interpretation arising from an agency’s determination that congressional action has preemptive effect. The most prominent issue here is whether, where Congress’s own preemptive intent is ambiguous, courts should defer to the agency’s conclusion that a statute preempts state law under Chevron U.S.A. Inc. v. National Resources Defense Council. Such deference would create an important exception to the normal presumption articulated most famously in Rice v. Santa Fe Elevator Corp. that statutory ambiguity is resolved in favor of preserving state regulatory authority. I argue that although courts may continue to defer to agency interpretations of what the relevant statute does,Chevron should not be construed to require similar deference to agency conclusions about the law’s preemptive effect.

The second set of issues arises when preemption is asserted on the basis of regulations, orders, or other agency activity, rather than grounded in the relevant statute itself. These instances of preemption are problematic because they seem to shift preemptive authority from Congress to the agency—a result that contravenes both the text of the Supremacy Clause and the structural safeguards of federalism and separation of powers. As a result, I suggest that we may wish to restrict the agencies’ role in preemption to interpreting what Congress has done. Failing that, however, I suggest a series of possible limiting principles, each of which would restrict administrative preemption to at least some extent beyond present law.

My discussion proceeds in three parts. Part I offers a brief account of preemption doctrine and situates the issue of executive preemption within that account. Part II addresses the question of statutory interpretation and deference. Part III then turns to the independent preemptive force of agency action.

Citation

Ernest A. Young, Executive Preemption, 102 Northwestern University Law Review 869-901 (2008)