The Paradox of Administrative Preemption

69 Pages Posted: 17 Jan 2014 Last revised: 26 Feb 2016

Date Written: February 20, 2014


Administrative preemption is a convenience and contrivance for modern government. But, as uncovered here, it is also a constitutional paradox. Specifically, in the federalism context the Court treats agency action as preemptive under the Supremacy Clause, which provides that certain federal “Laws” shall be supreme over state law. However, if agency action qualifies as “Law,” then it should be void under separation-of-powers principles (and thus ineligible to preempt state law). Meanwhile, if agency action does not qualify as “Law” (thus avoiding a separation-of-powers problem), then it should fall beyond the Supremacy Clause’s purview. Paradoxically, administrative preemption requires that agency action simultaneously qualify as (1) “Law” for federalism purposes and (2) “not Law” for separation of powers.

The Founders surely never intended this. Although much has changed since then, resort to the Court’s interpretive glosses for modern government fare no better. For instance, if the Court’s premise behind administrative preemption is that agencies make “Law,” then how should we understand the Court’s longstanding insistence otherwise in the separation-of-powers context? And, if unelected administrative officials can displace state law in Congress’s stead, what are we to make of the Court’s heralded political-safeguards theory of federalism? These inquests underscore the difficulty of settling on a constitutional premise that is both broad enough to justify administrative preemption, yet narrow enough to preserve the Court’s legitimating theories of modern government. Perhaps administrative preemption is right, and the Court’s legitimating glosses for modern government are wrong. Or perhaps the inverse is true. This Article’s insight is that these cannot all be right — at least not without a new constitutional bargain.

Keywords: preemption, administrative preemption, Supremacy Clause, separation of powers, federalism

Suggested Citation

Rubenstein, David S., The Paradox of Administrative Preemption (February 20, 2014). Harvard Journal of Law and Public Policy, Volume 38 – Issue 1, 2014, Available at SSRN: or

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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