The paradox of administrative preemption.

Author:Rubenstein, David S.
Position:Introduction through II. The Paradox-Hypothesis, p. 267-297

INTRODUCTION I. ADMINISTRATIVE PREEMPTION DOCTRINE A. Taxonomy of Statutory Preemption B. Taxonomy of Administrative Preemption 1. Defining the Space 2. The Doctrine II. THE PARADOX-HYPOTHESIS A. The Original Structure B. The Supremacy Clause's Original Meaning 1. Text 2. Enactment History 3. Structuralism C. The Originalist Paradox and the Non-Originalist Response III. THE "CONTINGENT CONCESSIONS" FOR MODERN GOVERNMENT A. Restructuring B. Separation of Powers: Contingent Concessions C. Federalism: Contingent Concessions IV. PARADOX-HYPOTHESIS REVISITED: A DOCTRINAL PERSPECTIVE A. The "Contingency Principle" 1. Constitutional Fidelity 2. Why the Court's Reasons Matter a. Institutional Legitimacy b. Doctrinal Legitimacy c. Doctrinal Scope and Trajectory 3. Preserving Constitutional Text B. Separation of Powers Contingencies C. Federalism Contingencies 1. Political Safeguards 2. Procedural Safeguards V. PRAGMATISM VS. PARADOX A. Optimization B. Now (and so) What? VI. CONCLUSION INTRODUCTION

The Supreme Court's administrative preemption doctrine holds that federal agencies may displace state law much like Congress. (1) Administrative preemption is a convenience and contrivance for modern government. But, as hypothesized here, it is also a constitutional paradox. Administrative preemption requires that agency action simultaneously qualify as (1) "Law" for federalism purposes and (2) "not Law" for separation of powers. (2)

More specifically, the Court treats agency action as preemptive under the Supremacy Clause, which provides that certain federal "Laws" shall be supreme over state law. (3) However, if agency action qualifies as "Law," then it is arguably void under separation-of-powers principles (and thus ineligible to preempt state law). (4) Meanwhile, if agency action does not qualify as "Law" (thus avoiding a separation-of-powers problem), then it arguably falls beyond the Supremacy Clause's purview. (5) How is it that agency action is Law for federalism purposes, yet simultaneously is not Law for separation of powers purposes? Of more concern, why is this structural contradiction possible? The Court has never answered these questions.

The paradox raises new challenges for the Court's administrative preemption doctrine. Of equal intrigue, the paradox summons doubt over the Court's legitimating theories of modern government. If the Court's premise behind administrative preemption is that agencies make "Law," then how should we understand the Court's longstanding insistence that Congress cannot delegate lawmaking authority? (6) And, if unelected administrative officials can displace state law in Congress's stead, what are we to make of the Court's political safeguards theory of federalism? (7)

These questions 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. (8) 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.

Whether the paradox exists, and, if so, what to do about it, may depend on one's interpretive and normative preferences. Rather than resist these analytic variables, this Article aims to navigate the reader through them. It employs textual, historical, structural, doctrinal and pragmatic modes of interpretation to accommodate--as much as possible--originalists (9) and nonoriginalists (10) alike. Although administrative preemption will likely be of more concern to originalists, (11) I hope to make the case for why non-originalists should be concerned too: administrative preemption is incompatible with the written Constitution and the Court's legitimating theories of modern government. (12) Non-originalists might thus be willing to revisit administrative preemption to avoid reopening the book on nondelegation and enumerated powers.

Part I canvasses the Court's administrative preemption doctrine. Part II conceives of administrative preemption as a paradox using textual, historical, and structural modes of constitutional interpretation. Although these modes tend to be associated with originalism, my purpose is not to defend or promote that interpretive methodology. (13) Rather, I start with text, history, and structure simply because these interpretive inputs are generally acceptable to most non-originalists as well. (14)

Part III then lays the groundwork for a doctrinal assessment of administrative preemption, which may be more appealing to non-originalists. It surveys the structural concessions made for modern government during the New Deal era and beyond. (15) Critically, however, the account advanced here emphasizes the doctrinal "contingencies" that ushered in and legitimated our modern structural arrangements. Most notably, the Framers' separation of powers model was conceded on the theoretic contingencies that agencies cannot make "Law" (16) and that agency action would be sufficiently kept in check. (17) Separately, the Framers' federalism strategy of enumerated (and limited) federal power has mostly been conceded, but on the theoretic contingency that state interests would be adequately protected through the legislative process. (18)

Part IV advances a normative "contingency principle" that builds on this doctrinal assessment. The contingency principle's animating idea is rather straightforward: The contingencies are the legitimating strings that attach to the Court's concessional doctrines for modern government. Thus, inasmuch as the Court seeks to legitimate Congress's delegation of policymaking on the ground that the administrative output cannot be Article I, Section 7 "Law," we can and should hold the Court to that conception when evaluating the legitimacy of administrative preemption. And inasmuch as the Court has declined to police the federal-state boundary on the legitimating theory that state interests are adequately protected in the legislative process, we can and should insist on the Court's assurance to "compensate for possible failings" in that process. (19)

As applied here, the contingency principle suggests that the Court's administrative preemption doctrine is not nearly as protective of state interests as it arguably should be. If agency action qualifies as "Law," then it is conceptually void under the nondelegation doctrine (and should thereby be ineligible to preempt state law). Meanwhile, if agency action does not qualify as "Law" (thus avoiding a nondelegation violation), then it is difficult to comprehend why that action can or should bind sovereign states. As the Court itself has recognized, the states' most meaningful protection against federal encroachment is the socalled political and procedural safeguards of federalism. (20) But neither of these safeguards attach administratively. This is simply a manifestation of the paradox in doctrinal terms.

Part V brings pragmatic claims to the fore. Some argue, for instance, that agencies are better equipped than Congress to make decisions about preemption, and that a system with administrative preemption is better than a system without it (putting aside, for now, what "better" means here). (21) In prior work I have questioned the merits of these pragmatic claims. (22) But my purpose here is different; it is only to isolate the pragmatic claims. The reader can decide whether the pragmatic claims are enough to justify the paradox of administrative preemption-constitutionally or otherwise. What seems evident, however, is that something must give. As matters stand, administrative preemption is incompatible with the written Constitution and the Court's legitimating theories of modern government. Saving administrative preemption on pragmatic grounds shades over, but does not resolve, this incoherence.

To be clear, I do not mean to impugn appeals to pragmatism. Indeed, they give expression to the puzzle this Article concludes with: if the paradox exists, what now? (23) This question appreciates that more is at stake here than the Framers' original strategies for securing liberty. Also at stake are the values that birthed the modern administrative state.

On this recognition the analysis returns full circle. It explains my preference for a bottom-up approach to the question of administrative preemption; and more generally, why my preoccupation is with administrative preemption rather than with the structural concessions that precipitate and perpetuate it. After all, administrative preemption is made possible by congressional delegation of policymaking; it is made more dangerous by the combination of executive, legislative and judicial functions within agencies; (24) and it is made wide-ranging by the virtual demise of federalism's enumerated-powers principle. Insofar as we are committed...

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