A Positive Defense of Administrative Preemption
40 Pages Posted: 19 Dec 2014 Last revised: 17 Feb 2019
Date Written: December 17, 2014
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.
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