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

Abstract:     
This Article critiques existing and nascent rules limiting federal agency authority in the name of federalism. Those rules presently bind agencies even more tightly than Congress. For instance, while 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, where Congress can preempt state law, albeit only where its intent to do so is clear, some commentators have read recent 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 grounds that congressional control over questions of federalism is to be preferred to agency decision making. Congress, they claim, is more deliberative than the Executive, more transparent to the public, and more accountable. 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 run-away federal power.

Our argument here is that both these sets of claims are, at best, accurate only occasionally. We attempt to show that in many instances agencies are, or with wise doctrines of judicial review can be made to be, more democratic and deliberative than Congress. While regulating will almost always be easier than legislating, in many instances the need for additional speed bumps under the wheels of the Executive is negligible, or downright counter-productive. 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.

Keywords: federalism, preemption, non-delegation doctrine, constitutional avoidance, SWANCC, departmentalism

Accepted Paper Series