The Supremacy Clause, Cooperative Federalism, and the Full Federal Regulatory Purpose

48 Pages Posted: 2 Aug 2011 Last revised: 29 Jun 2020

See all articles by Adam Babich

Adam Babich

Tulane University Law School

Date Written: August 2, 2011


This Article shows that private litigants may use the preemption doctrine to police the national standards of cooperative federalist regulatory programs without undermining the state primacy that Congress intended those programs to preserve. It focuses on the environmental cooperative federalist systems that Congress employs in many anti-pollution laws. Laws that employ these systems encourage states to take the lead in administering regulatory programs that meet minimum national standards for protection of public health and welfare. Preemption doctrine should ensure that state laws do not obstruct attainment of these regulatory systems’ lawful goals, yet must also take account of Congress’ goal to preserve state primacy. For preemption to operate appropriately in this context, courts must recognize that (a) the ultimate touchstone of preemption analysis is the full federal regulatory purpose, and (b) multiple federal goals drive cooperative federalist schemes. It is then practical to distinguish true conflicts between state action and the full federal regulatory purpose from false conflicts, in which state action may conflict with a particular federal mandate, but not with the federal regulatory purpose when considered as a whole. This distinction can be implemented by sorting state-federal conflicts in cooperative federalist systems into three categories, (1) isolated administrative mistakes, (2) deviations subject to robust federal corrective mechanisms, defined in terms of the cooperative federalist systems’ goals, and (3) true conflicts with the full federal regulatory purpose. Preemption of state action in the third category only will allow litigants - whether members of the regulated community or citizens seeking full implementation of regulatory protections - to use preemption doctrine to police, but not undermine, cooperative federalism.

Keywords: Preemption, Federalism, Environmental Cooperative Federalism, Environmental law

Suggested Citation

Babich, Adam, The Supremacy Clause, Cooperative Federalism, and the Full Federal Regulatory Purpose (August 2, 2011). Administrative Law Review, Vol. 64, No. 1, 2012, Available at SSRN: or

Adam Babich (Contact Author)

Tulane University Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States

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