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A Presumption Against Agency Preemption

32 Pages Posted: 18 Nov 2007 Last revised: 26 Nov 2007

Nina A. Mendelson

University of Michigan Law School


In a variety of settings, including homeland security, pharmaceutical regulation, and automotive safety, federal agencies have recently taken aim at state tort and regulatory law. Agencies have declared state law an "obstacle" to federal goals by stating that state law is preempted or by declaring that the agency possesses the authority to preempt state law. Such agency statements may purport themselves to have the force and effect of law; agencies may also seek so-called Chevron deference to their positions in court. The article advocates that courts adopt a presumption against such agency preemption, however, finding it authorized only where there is clear evidence that Congress intended the agency to preempt the state law. First, agencies typically lack the expertise and institutional focus to adequately consider the value of protecting the regulatory autonomy of state governments. Indeed, general authorizing statutes usually contain no criteria that might help guide an agency deciding whether state law should be preempted. Instead, an agency might well be tempted to validate the correctness of its own regulatory decision by declaring that all different approaches should yield. Finally, current approaches to "obstacle" preemption (where state law may be deemed preempted if it stands as an "obstacle" to federal goals), in the context of modern regulatory law, could give an agency the discretion to preempt nearly any state law relevant to the agency's regulatory program. A presumption against agency preemption would help cabin this agency authority unless and until Congress has considered the circumstances under which an agency should be able to preempt state law.

Keywords: obstacle preemption

JEL Classification: K23

Suggested Citation

Mendelson, Nina A., A Presumption Against Agency Preemption. Northwestern University Law Review, 2008; U of Michigan Public Law Working Paper No. 99. Available at SSRN:

Nina Mendelson (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
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