The State Attorney General and Preemption
PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION, William Buzbee, ed., Cambridge University Press, 2008
16 Pages Posted: 29 Jan 2008
According to the National Association of Attorneys General, "the rise of preemption of state laws and regulations by federal administrative agencies, rather than directly by Congress" is "[p]erhaps the most significant development in federal preemption in the last several decades." This kind of preemption is typically claimed in an agency ruling or regulation declaring certain state laws or activities preempted, even though the underlying statute says nothing about preemption in those areas. That an association of state attorneys general would view "agency preemption" as particularly worrisome is hardly surprising: the main casualties are often state attorneys general, whose broad investigative and enforcement powers under state consumer protection, health, environmental, and other state laws are displaced by the agency's action.
This paper, which will appear as a chapter in a book on preemption edited by William Buzbee and to be published by Cambridge University Press, examines the implications of agency preemption for state attorneys general, and vice versa. Its principal intended audience is not so much the courts as Congress and the federal agencies; its prescriptions are less about judicial doctrine (though there are implications along those lines) than about choices the legislature and agencies could make to better accommodate the important functions of democratically accountable state attorneys general. As to Congress, I suggest that it should directly address whether any or all of the work of state attorneys general should be preempted by any particular enactment it passes, and should include a provision making clear the extent of its intent to preempt. As to agencies, I suggest that, in the absence of clear statutory language addressing the question, they should be reluctant to promulgate regulations preempting the investigatory or enforcement authority of state attorneys general. Unlike the Supreme Court's current "presumption against preemption," the approach I advocate does not turn on the particular subject matter of the state or federal law in question. Instead, it focuses on the identity of the actor enforcing the state law.
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