David S. Rubenstein (Washburn University) has posted The Paradox of Administrative Preemption (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:
Administrative preemption is a convenience and contrivance for modern government. But, as hypothesized 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 “Law” for federalism purposes and “not Law” for separation of powers. The Court has never explained — much less acknowledged — this structural contradiction.
The paradox-hypothesis shines new perspective on the Court’s administrative preemption doctrine. But it also resurrects doubts about the Court’s theories of modern government. 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.
This Article posits that administrative preemption is incompatible with both the written Constitution and the Court’s interpretive glosses for modern government. Saving administrative preemption for pragmatic reasons may shade over, but does not resolve, this incoherence.