Delegating Supremacy?

67 Pages Posted: 5 Jun 2012

Date Written: June 4, 2012


The Supreme Court has long held that federal agencies may preempt state law in much the same way as Congress: either by issuing binding administrative rules that conflict with state law or by asserting exclusive federal control over a regulatory domain. Under this sweeping conception of the Supremacy Clause, agencies wield an extraordinary power in our federalist system. Specifically, agencies may displace the laws of all fifty states without the political and procedural safeguards inhering in the legislative process. The administrative-preemption power rests on the undertheorized doctrinal assumption that Congress may, in effect, “delegate supremacy” to agencies. This Article challenges the constitutionality of that premise and normatively defends an imagined federalist system in which agencies are stripped of the power to create supreme federal law.

There are several problems with delegated supremacy. The first is constitutional. The Supremacy Clause extends preemptive effect to “Laws” of the United States “made in Pursuance” of the Constitution. This provision’s context and drafting history strongly suggest that such “Laws” are statutes promulgated pursuant to the finely wrought legislative process. By negative implication, administrative policies crafted by unelected agency officials are beyond the Supremacy Clause’s purview. Second — and relatedly — administrative preemption subverts Congress’s critical role in preemption decisions. The legislative process provides a political forum for states to air objections both to the substance of federal law and to its potentially displacing effect on state law. Congressional delegation of supremacy, however, substitutes the legislative forum with an administrative one, thus effectively circumventing these political and procedural safeguards. Third, administrative supremacy threatens the values of federalism, insofar as the practice distorts the federal-state balance of power, undermines the democratic ideal of representative governance, and stifles regulatory experimentation.

My proposal to disenfranchise agencies of the supremacy power will no doubt be controversial because of the implications it holds for the operation of modern government. Some of the more significant ones include the displacement of agency policy by conflicting state law (rather than vice-versa) and requiring Congress to decide more preemption questions than it might reasonably be expected to. This Article, however, generally embraces these and other implications as natural by-products of a more appropriately orchestrated federalism. Still, perhaps the greatest conceptual obstacle to foreclosing delegated supremacy is that it rattles a foundational precept of modern government — namely, Congress’s general authority to delegate policy choices to federal agencies. Yet, as highlighted herein, the general policymaking and preemption powers are severable. This conceptual reordering leaves the sleeping giant of the “nondelegation doctrine” at rest, thus clearing the analytic space necessary to forge a system that is more consistent with our constitutional structure and the values of federalism.

Keywords: administrative preemption, federalism, preemption, delegation

Suggested Citation

Rubenstein, David S., Delegating Supremacy? (June 4, 2012). Vanderbilt Law Review, Vol. 65, No. 4, p. 1125, 2012, Available at SSRN:

David S. Rubenstein (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States
785-670-1682 (Phone)

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