Federalism Accountability: 'Agency-Forcing' Measures

69 Pages Posted: 28 May 2009 Last revised: 9 Jul 2009

Date Written: May 26, 2009


This Article takes as its starting point the "agency reference model" for judicial preemption decisions, adopting the foundational premise that courts should take advantage of what federal agencies, which are uniquely positioned to evaluate the impact of state regulation and common law liability upon federal regulatory schemes, have to offer. The Article's main focus is on the federalism dimension of the debate: Congress's and federal agencies' respective ability to serve as loci of meaningful debate with state governmental entities about the impact of federal regulatory schemes on state regulatory interests. Notwithstanding the dismal track record of federal agencies, which seems to be characterized by total neglect of states' regulatory interests, the Article sides with agencies over Congress and trains its focus on reform of the agency rulemaking process. Given that the 1999 Federalism Executive Order provides a blueprint for timely and meaningful consultation with the states, issuance of federalism impact statements, and robust interchanges during the notice-and-comment period, what is needed now is an effective enforcement mechanism. The Article advocates a variety of "agency-forcing" measures designed to enhance the ability of Congress, the executive, and especially the courts, to ensure that agencies abide by executive mandates and other reforms, and to provide a check on overt politicization or inaction on agencies' part. The Article introduces the concept of "indirect challenges" to agency rulemaking, arising outside of the Administrative Procedure Act's domain of direct challenges to agency action at a later juncture when a defendant asserts a preemption defense to state common law tort actions.

Keywords: federal preemption, federalism, accountability, executive order 13132, Wyeth

JEL Classification: K13, K41

Suggested Citation

Sharkey, Catherine M., Federalism Accountability: 'Agency-Forcing' Measures (May 26, 2009). Duke Law Journal, Vol. 58, 2009, NYU School of Law, Public Law Research Paper No. 09-36, NYU Law and Economics Research Paper No. 09-24, Available at SSRN: https://ssrn.com/abstract=1410798

Catherine M. Sharkey (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6729 (Phone)

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