The Search for 'Something Less': A Non-Delegation Approach to Agency Preemption

Abstract:     
This paper argues that proposals for replacing Chevron deference in agency preemption cases are all too deferential to federal agencies, and that the courts should not even recognize agency preemption except in very limited circumstances. Furthermore, Congress should end its practice of delegating authority to agencies to preempt state law absent very explicit instructions to the agency about whether Congress intended to preempt a specific state law. When Congress’s intent to delegate preemptive authority to an agency is unclear, or a specific application of this delegated authority does not clearly reflect Congress’s intent, the courts should not allow an agency to preempt state law.

Number of Pages in PDF File: 33

JEL Classification: K20, K23, K13, K32

working papers series