A Positive Defense of Administrative Preemption

40 Pages Posted: 19 Dec 2014 Last revised: 17 Feb 2019

See all articles by Joshua Hawkes

Joshua Hawkes

Law Clerk to the Honorable Stephanie W. Ray, Florida First District Court of Appeal

Mark Seidenfeld

Florida State University College of Law

Date Written: December 17, 2014

Abstract

This article challenges the claim that, as a matter of positive law, administrative action falls outside the Supremacy Clause’s phrase, “Laws of the United States...made in Pursuance [of the Constitution].” The article argues that the language of the Supremacy Clause, the history of its inclusion in the Constitution, the understanding of the preemptive capacity at the time of the nation’s founding, and the implications that would result from not allowing administrative action to preempt state law, all support that administrative action is included in that phrase. That inclusion implies that administrative action has preemptive authority in its own right, without resort to the fiction that authorization of such action by Congress imparts the authority to preempt conflicting state law. The article proceeds to explore the implications of recognizing that administrative action, by its own force, can have preemptive effect.

Suggested Citation

Hawkes, Joshua and Seidenfeld, Mark, A Positive Defense of Administrative Preemption (December 17, 2014). 22 Geo. Mason L. Rev. 63 (2014), FSU College of Law, Public Law Research Paper No. 722, FSU College of Law, Law, Business & Economics Paper No. 15-1, Available at SSRN: https://ssrn.com/abstract=2539674

Joshua Hawkes

Law Clerk to the Honorable Stephanie W. Ray, Florida First District Court of Appeal ( email )

FL
United States

Mark Seidenfeld (Contact Author)

Florida State University College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-644-3059 (Phone)
850-644-5487 (Fax)

HOME PAGE: http://www.law.fsu.edu/faculty/mseidenfeld.html

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