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How Courts Can Protect State Autonomy from Federal Administrative Encroachment

52 Pages Posted: 15 Apr 2008 Last revised: 12 Jan 2009

Scott A. Keller

Yetter Coleman LLP

Date Written: November 1, 2008


Unlike the federalism cases we were used to seeing from the Rehnquist Court, modern federalism cases won't be a fight over the interpretation of the Commerce Clause or the Tenth Amendment, after Gonzales v. Raich, 545 U.S. 1 (2005), refused to expand the Commerce Clause to protect state autonomy. Instead, modern federalism cases will involve basic statutory construction. The Supreme Court is becoming increasingly interested in cases dealing with the intersection of federalism and statutory construction, as it decided two such cases during the October Term 2007 and has granted cert in two other cases for the October Term 2008. Federalism concerns in statutory construction arise most frequently in administrative law, as modern federal agencies produce an enormous amount of laws.

As a result, the hard questions about federalism now appear in administrative law cases. Courts and commentators are becoming wary of the ability of federal agencies to encroach on state autonomy, given the underenforced constitutional norms of federalism and the nondelegation doctrine. The Supreme Court recently examined the intersection of federalism and administrative law in Gonzales v. Oregon, 126 S. Ct. 904 (2006), but the Court adopted an inadequate approach (Chevron Step Zero) to protecting state autonomy from administrative encroachment.

Instead of using Chevron Step Zero to protect federalism in administrative law, courts should expand federalism-based clear statement canons of statutory construction. Specifically, courts should expand the scope of Gregory v. Ashcroft, 501 U.S. 452 (1991), in the administrative law context to adopt a clear statement canon that applies to administrative interpretations made in areas of traditional state regulation. Such a canon finds support in preexisting clear statement canons and the Supreme Court's continued reliance on the "areas of traditional state regulation" dichotomy. This canon would be a direct, effective approach to protecting state autonomy from administrative encroachment.

Keywords: federalism, administrative law, Gonzales v. Oregon, Gregory v. Ashcroft, clear statement, canons

Suggested Citation

Keller, Scott A., How Courts Can Protect State Autonomy from Federal Administrative Encroachment (November 1, 2008). Southern California Law Review, Vol. 82, p. 45, 2008. Available at SSRN:

Scott A. Keller (Contact Author)

Yetter Coleman LLP ( email )

221 W 6th St.
Suite 750
Austin, TX 78701
United States

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