Federalism at Step Zero
83 Fordham Law Review 633 (2014)
23 Pages Posted: 6 Nov 2014
Date Written: November 3, 2014
Given the extensive interconnections between state and federal actors and laws in the administrative sphere, it should be no surprise that administrative law cases — cases often involving the application of Chevron — frequently raise federalism questions. This Essay, part of the Fordham Law Review’s Symposium Chevron at 30: Looking Back and Looking Forward, considers what courts should do when the worlds of Chevron and federalism collide. The Supreme Court has at times indicated that Chevron does not apply in its usual way in certain federalism cases, and a number of scholars have proposed similar approaches in particular contexts. Because these proposals all require analysis before the Chevron framework is deployed, I refer to them collectively as a “Federalism Step Zero.”
This Essay identifies Federalism Step Zero as a distinct concept, analyzes its underpinnings and mechanics, and ultimately, argues against its adoption. The analysis focuses on the mismatch between the nature of Step Zero and the nature of federalism analysis in the administrative context. Step Zero is best served by a rule rather than a standard, a lesson evident in the aftermath of United States v. Mead Corp. and apparently part of the doctrine after City of Arlington v. FCC. But the heterogeneity of questions and goals at stake in administrative federalism cases makes bright lines a poor fit. No rule can identify accurately when agencies should answer federalism questions—and because agencies are well-positioned to resolve many such questions, there is no reason to believe that categorically denying deference would better serve federalism goals. Moreover, courts can already police bad agency interpretations through Chevron analysis and arbitrary and capricious review. A Federalism Step Zero would thus needlessly harm the coherence and predictability of the Chevron framework.
Although the focus here is on the Symposium’s honoree, the Chevron doctrine, this Essay also suggests a deeper, generalizable point about administrative federalism. Federalism inquiries and values tend to be multifaceted and nuanced in ways that make them poor fits for the more formalistic, rule-bound features of administrative law. Attention to federalism requires the use of standards, in Chevron analysis and beyond it.
Keywords: administrative law, federalism, deference, Step Zero, Chevron, Mead, City of Arlington, Skidmore
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