Executive preemption

Northwestern University Law Review

Volumn 102, Issue 2, 2008, Pages 869-901

  Young, Ernest A ^a  

^a Duke Law School ^*

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EID: 49749139380     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (169)

1. 462 U.S. 919 (1983).
2. Id. at 985-86 (White, J., dissenting).
3. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1231 (1994).
4. See CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVINO THE REGULATORY STATE 227 (1990).
5. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).
6. See, e.g., Richard J. Pierce, Jr., Political Accountability and Delegated Power: A Response to Professor Lowi, 36 AM. U. L. REV. 391, 404 (1987) ("Given the nature and level of government intervention that Congress now authorizes, it could not possibly make the hundreds, or perhaps thousands, of important policy decisions that agencies make annually.")
7. La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986).
8. Colin S. Diver, Statutory Interpretation in the Administrative State, 133 U. PA. L. REV. 549, 551 (1985).
9. Fid. Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153 (1982). See generally Paul E. McGreal, Some Rice With Your Chevron?: Presumption and Deference in Regulatory Preemption, 45 CASE W. RES. L. REV. 823, 826 (1995) (complaining that "the Court merely has applied statutory preemption rules to regulatory preemption cases" without reflecting on the differences between Congress and the agencies).
10. 467 U.S. 837, 843-44 (1984).
11. 331 U.S. 218,230-31 (1947).
12. For a similar argument, see Damien J. Marshall, Note, The Application of Chevron Deference in Regulatory Preemption Cases, 87 GEO. L.J. 263 (1998).
13. See, e.g., Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 GEO. WASH. L. REV 449 (2008) [hereinafter Sharkey, Products Liability Preemption]; Catherine M. Sharkey, The Fraud Caveat to Agency Preemption, 102 NW. U. L. REV. 841, 862-66 (2008) [hereinafter Sharkey, Fraud Caveat].
14. New York v. United States, 505 U.S. 144, 149 (1992).
15. See generally Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 WM. & MARY L. REV. 1733, 1764-71 (2005) [hereinafter Young, Making Federalism Doctrine].
16. See, e.g., Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317(1997).
17. See New York, 505 U.S. at 157 ("Our task would be the same even if one could prove that federalism secured no advantages to anyone. It consists not of devising our preferred system of government, but of understanding and applying the framework set forth in the Constitution."). To be sure, the Constitution does not set forth specific rules for executive preemption or any number of other contemporary federalism issues, and where there is play in the joints, other values-such as efficiency-become relevant. But I do insist that the ultimate question must remain how to preserve and enforce the basic federal balance embodied in the Constitution, not whether other institutional forms might be better. Stuart Benjamin and I have defended this constitutionalist orientation in the specific context of administration elsewhere. See Stuart M. Benjamin & Ernest A. Young, Tennis with the Net Down: Administrative Federalism Without Congress, 57 DUKE L.J. (forthcoming 2008). For the contrary view that administrative federalism doctrine should focus on achieving an optimal regulatory structure for today, see Brian D. Galle & Mark Seidenfeld, Admin Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. (forthcoming 2008). See also Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 SUP. CT. REV. 201 (arguing that authority should be allocated between federal agencies and state regulators so as to create optimal incentives for regulatory innovation and expertise).
18. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436-37 (1819) (holding that Maryland lacked authority to tax the Bank of the United States); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 239-240 (1824) (invalidating New York's attempt to grant an exclusive license to operate a ferry in interstate commerce). See generally ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 17 (4th ed. 2005) ("From 1789 until the Civil War, the dominant interest of the Supreme Court was in ... the nation-state relationship. And the dominant judicial value . . . was the value of preserving the American Union.").
19. The modern Court has recognized this obligation only sporadically. For two examples, see United States v. Lopez, 514 U.S. 549, 567-68 (1995), which held that the federal Gun Free School Zones Act exceeded Congress's authority under the Commerce Clause, and Printz v. United States, 521 U.S. 898, 935 (1997), which held that Congress may not "commandeer" state executive officials by requiring them to enforce federal law.
20. See Young, Making Federalism Doctrine, supra note 15, at 1775-1815.
21. See generally Ernest A. Young, Federal Preemption and State Autonomy, in FEDERAL PREEMPTION: STATES POWERS, NATIONAL INTERESTS 249 (Richard A. Epstein & Michael S. Grève eds., 2007) [hereinafter Young, Federal Preemption]; David A. Dana, Democratizing the Law of Federal Preemption, 102 NW. U. L. REV. 507, 507 (2008) ("[H]ow the federal courts respond to preemption challenges affects how vibrant a role the states can have in democratic governance, and thus affects how vibrant a role the people ... can have in democratic governance.").
22. See 22 U.S. (9 Wheat.) at 220-21.
23. See 17 U.S. (4 Wheat.) at 436. Both McCulloch and Gibbons involved the supremacy effect of federal law-i.e., the fact that federal law trumps state law in the event of a conflict. Stephen Gardbaum has drawn a sharp line between that effect and Congress's power to displace state law in the absence of such a conflict. See generally Stephen Gardbaum, Congress's Power to Preempt the States, 33 PEPP. L. REV. 39 (2005). Although I find that distinction useful for some purposes, in this Essay I will follow conventional usage in referring to both phenomena as "preemption."
24. See Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767, 785 (1994) ("For most of the nineteenth century, the Court typically decided cases involving the relationship between state and federal power not on preemption grounds, but on grounds of exclusivity or supremacy alone.").
25. See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (ending an era of relatively strict judicial enforcement of enumerated limits on national authority by upholding the Wagner Act); Edward S. Corwin, The Passing of Dual Federalism, 36 VA. L. REV. 1,17 (1950) (describing the system of "dual federalism," which postulated a sharp and enforceable division of enumerated authority between the nation and the states, and observing that "[t]his entire system of constitutional interpretation touching the Federal System is today in ruins" after 1937).
26. See Gardbaum, supra note 24, at 801-07. This shift is the genesis of the modern "presumption against preemption." See id at 806-07; see also Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230-31 (1947) (articulating this presumption).
27. See generally Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L.J. 408 (2007) (discussing the importance of statutes in defining the boundary between state and federal author-ity).
28. Justice Breyer captured this dynamic in his dissent in Egelhoff v. Egelhoff: [T]he Court has recognized the practical importance of preserving local independence, at retail, i.e., by applying pre-emption analysis with care, statute by statute, line by line, in order to determine how best to reconcile a federal statute's language and purpose with federalism's need to preserve state autonomy. Indeed, in today's world, filled with legal complexity, the true test of federalist principle may lie, not in the occasional constitutional effort to trim Congress' commerce power at its edges, United States v. Morrison, 529 U.S. 598 (2000), or to protect a State's treasury from a private damages action, Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), but rather in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law, AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 427 (1999). 532 U.S. 141,160-61 (2001) (Breyer, J., dissenting).
29. See, e.g., United States v. Lopez, 514 U.S. 549 (1995) (striking down the Gun Free School Zones Act); United States v. Morrison, 529 U.S. 598 (2000) (striking down portions of the Violence Against Women Act).
30. See, e.g., Viet Dinh, Reassessing the Law of Preemption, 88 GEO. L.J. 2085, 2117 (2000) ("Redefining the proper balance of legislative powers between Congress and the states is better accomplished directly, through an insistence on the limits of Congress's enumerated and limited powers under Article I, rather than circuitously and ineffectually through some vague and ill-conceived presumption against preemption under the Supremacy Clause.").
31. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447, 1462 (1995) ("Each line of cases described in this part (constitutional limits on federal regulation, constitutional limits on federal regulation of the states, and constitutional limits on state regulation) might be characterized as internally incoherent-shifting directions erratically and containing hard-to-explain inconsistencies over time." (emphasis omitted)).
32. See, e.g., Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 745 (1988) (concluding that "many of the fundamental transformations in our governmental structure legitimated by the Supreme Court in this century are unquestionably above challenge").
33. See, e.g., Frank B. Cross, Realism About Federalism, 74 N.Y.U. L. REV. 1304, 1315-20 (1999) (arguing that because federal judges are officers of the federal government, they have strong incentives to favor national over state authority).
34. Any doubt on this score should have been resolved by the Court's subsequent decision upholding Congress's authority to regulate the noncommercial use of marijuana grown and consumed within a single state. See Gonzales v. Raich, 545 U.S. 1 (2005). For an assessment of Raich, see Ernest A. Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival after Gonzales v. Raich, 2005 SUP. CT. REV. 1 [hereinafter Young, Blowing Smoke].
35. See Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 130-34 (2004) [hereinafter Young, Two Federalisms].
36. See generally Richard H. Fallen, Jr., The " Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. CHI. L. REV. 429, 462 (2002); Calvin Massey, Federalism and the Rehnquist Court, 53 HASTINGS L.J. 431, 502-12 (2002); Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 SUP. CT. REV. 343, 362-78; Young, Two Federalisms, supra note 35, at 30-32.
37. 128 S. Ct. 989 (2008).
38. See also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (holding that federal law requiring warning labels on cigarette packages preempted a Massachusetts law forbidding sign and poster adver-tising of tobacco produces near schools).
39. 49 U.S.C. § 14501(c)(1) (2000).
40. See Rowe, 128 S. Ct. at 999 (Ginsburg, J., concurring) (noting that Congress had provided funding incentives for state regulation of tobacco sales to minors, and that Internet sales make such regulation difficult without age verification by shippers). Justice Ginsburg "doubt[ed] that the drafters of the [Federal Aviation Administration Authorization Act of 1994], a statute designed to regulate the carriage of goods, anticipated the measure's facilitation of minors' access to tobacco," id., but deferred to "the breadth of [the Act]'s preemption language" and prior decisions "closely in point." Id. at 998 (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992); Am. Airlines, Inc. v. Wolens, 513 U.S. 219 (1995)).
41. See id. at 997 (majority opinion) ("[T]o allow Maine directly to regulate carrier services would permit other States to do the same. Given the number of States through which carriers travel, the number of products, the variety of potential adverse public health effects, the many different kinds of regulatory rules potentially available, and the difficulty of finding a legal criterion for separating permissible from impermissible public-health-oriented regulations, Congress is unlikely to have intended an implicit general 'public health' exception broad enough to cover even the shipments at issue here."). Note the scare quotes in the original around Maine's "public health" rationale.
42. See, e.g., Wechsler, supra note 5. For an earlier version, see THE FEDERALIST NOS. 45, 46 (James Madison) (noting the states' institutional representation in Congress, but emphasizing the broader competition between the states and the national government for the loyalty of the people).
43. Compare Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 564-67 (1985) (Powell, J., dissenting) (rejecting the majority's "political safeguards" argument), and Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 DUKE L.J. 75, 106-33 (2001) (collecting arguments against exclusive reliance on political safeguards to protect federalism), with Printz v. United States, 521 U.S. 898, 957-58 (1997) (Stevens, J., dissenting) (citing the Unfunded Mandates Reform Act of 1995, Pub. L. No. 104-4, 109 Stat. 48, as evidence that Congress acts to protect the interests of state governments).
44. See, e.g., Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001).
45. Rice v. Santa Fe Elevator Corp., 331 U.S. 218,230-31 (1947). Commentators have criticized the presumption against preemption, see, e.g., Dinh, supra note 30, at 2087-97 (arguing that the presumption is illegitimate because it may generate results contrary to the most likely intent of Congress); Caleb Nelson, Preemption, 86 VA. L. REV. 225, 235-44 (2000) (arguing that the presumption is inconsistent with the original understanding of the Supremacy Clause), and important debates are in progress concerning its scope, compare, e.g., United States v. Locke, 529 U.S. 89, 103-04 (2000) (suggesting that the presumption applies only in areas of traditional state regulatory authority), with Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (plurality opinion) (suggesting that the presumption applies "in all preemption cases"). These debates are largely outside the scope of this Article. My short answers, developed at greater length elsewhere, are that the presumption is a normative canon of construction that protects constitutional federalism values rather than seeking to gauge the unexpressed intent of Congress with regard to particular statutes, see Young, Federal Preemption, supra note 21, at 265; Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 TEX. L. REV. 1549, 1585-99 (2000) (defending normative canons of construction) [hereinafter Young, Constitutional Avoidance]; that this canon is legitimate, notwithstanding its inconsistency with the Framers' original strategy for protecting federalism, as a judicial compensating adjustment to reflect the demise of the enumerated powers and dual federalism doctrines, see Young, Making Federalism Doctrine, supra note 15, at 1848-50; and that the presumption should not be confined to particular fields because it is virtually impossible to define spheres of traditional state or federal regulatory authority in a consistent and principled way, see Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 GEO. WASH. L. REV. 139 (2001) [hereinafter Young, Dual Federalism].
46. See Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 YALE L.J. (forthcoming Fall 2008) (describing how clear statement rules enforce constitutional values by increasing the enactment costs of particular types of legislation).
47. See, e.g., Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 413-27 (2003) (holding that California's Holocaust Victims Insurance Relief Act was preempted because it conflicted with the implicit purpose of a federal executive agreement with Germany, despite the lack of any federal legislation on point or preemptive language in the agreement itself); Geier v. Am. Honda Motor Co., 529 U.S. 861, 869-74 (2000) (holding that the National Traffic and Motor Safety Act of 1966 preempted state tort suits, despite a textual savings clause for common law actions, on the ground that the state tort suits in question conflicted with the purpose of federal standards); Locke, 529 U.S. at 116-17 (finding conflict preemption despite the lack of a clear statement of Congress's preemptive intent in the statute); see also Dana, supra note 21, at 532-34 (discussing how preemption doctrine will determine the fate of California's efforts to limit greenhouse gases).
48. See, e.g., United States v. Lopez, 514 U.S. 549 (1995); Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 63 ("I am inclined to view Lopez less as a fundamental recasting of relations between nation and state than as a warning shot across the bow....").
49. See, e.g., Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 794-95 (2004) [hereinafter Mendelson, Chevron] ("While an agency would not directly expand its own jurisdiction in reading an ambiguous statute to preempt state law, it could, through a preemption decision, indirectly lay the groundwork for an increase in the agency's importance by making itself the primary regulator-as a practical matter, the only game in town. This would enable it to demand a larger budget and more employees in order to properly regulate the field. Alternatively, to the extent one accepts a public choice view of agency regulation, an agency's power to preempt conflicting state law would make it better able to deliver on 'deals' with well-organized interest groups." (footnotes omitted)); see also Jonathan R. Macey, Positive Political Theory and Federal Usurpation of the Regulation of Corporate Governance: The Coming Preemption of the Martin Act, 80 NOTRE DAME L. REV. 951, 953-56 (2005) (describing political dynamics that encourage federal agencies to seek expanded jurisdiction). But see Gersen, supra note 17, at 235 (suggesting that concerns about agency overreaching rest "on unproven background assumptions about the behavior of administrative agencies"); Daryl Levinson, EmpireBuilding Government in Constitutional Law, 118 HARV. L. REV. 915, 922 (2005) (arguing more generally that "the risks of government self-aggrandizement" are "both exaggerated and anachronistic"). I offer no empirical demonstration of agency incentives in the preemption context here. I do think that, given the centrality to our constitutional structure of the idea that politicians are motivated by "ambition," and that "the interest of the man" can be "connected with the constitutional rights of the place," THE FEDERALIST NO. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961), both the theoretical and empirical burdens of proof ought to lie with those who would reorient our thinking around a different set of assumptions. Indeed, one is tempted to say that the steady historical expansion of federal agency authority vis-à-vis the states is res ipsa loquitur.
50. Geier, 529 U.S. at 908 (Stevens, J., dissenting); see also Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 963 (1985) (observing that in the administrative state, "battles among factions are resolved not on the floors of Congress but in the hallways of bureaucracies and, ultimately, the chambers of federal judges" and that "[t]his system of policymaking circumvents many of the political safeguards that are supposed to make national policies sensitive to state and local concerns").
51. See generally Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. REV. 663 (2001).
52. Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1544 (1994); see also Mendelson, Chevron, supra note 49, at 774-77 (making a similar point).
53. Kramer, supra note 52, at 1544 n.142.
54. See Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 278-87 (2000). For criticism of the political parties argument, see Lynn A. Baker, Putting the Safeguards Back into the Political Safeguards of Federalism, 46 VILL. L. REV. 951, 956-72 (2001); Saikrishna B. Prakash & John C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459, 1480-89 (2001).
55. Kramer, supra note 52, at 1544 n.142.
56. See Note, No Child Left Behind and the Political Safeguards of Federalism, 119 HARV. L. REV. 885, 893-97 (2006) (demonstrating how party allegiance to the President led Republican members of Congress to sacrifice the interests of their states and vote in favor of federal intervention in education, notwithstanding federalism-based misgivings).
57. One might expect persons choosing to become state environmental officials, for example, to be more committed to environmental regulation than the public at large. In some circumstances, such state officials might well view federal regulators as welcome allies against antiregulatory forces in their home states.
58. See, e.g., DAVID P. CALLEO, RETHINKING EUROPE'S FUTURE 270 (2001); Giandomenico Majone, Europe's 'Democratic Deficit': The Question of Standards, 4 EUR. L.J. 5, 7 (1998).
59. See, e.g., Alden v. Maine, 527 U.S. 706, 730-54 (1999) (holding that Congress may not abrogate the states' immunity even when suits are brought in state court); Seminole Tribe v. Florida, 517 U.S. 44, 55-73 (1996) (holding that Congress may not abrogate the states' immunity from private damages suits when it acts pursuant to its Article I powers).
60. See generally Young, Two Federalisms, supra note 35, at 154-60 (criticizing the Court's emphasis on state sovereign immunity as a vehicle for protecting federalism).
61. Sometimes they do. See, e.g., Air Pollution Control; Preemption of State Regulation for Nonroad Engine and Vehicle Standards, 59 Fed. Reg. 36,969, 36,974 (July 20,1994) (codified at 40 C.F.R. pt. 85 (1995)).
62. See, e.g., Daniel B. Rodriguez, The Presumption of Reviewability: A Study in Canonical Construction and Its Consequences, 45 VAND. L. REV. 743, 749 (1992) (describing "descriptive canons" as "implementing] what Congress really wanted, but expressed inartfully or incompletely").
63. See, e.g., Zuber v. Allen, 396 U.S. 168, 192-93 (1969) (courts should defer to agency construction of ambiguous acts that the agency participated in drafting).
64. See Rodriguez, supra note 62, at 749 ("[Normative canons may or may not coincide with legislators' values or intentions.").
65. See Young, Federal Preemption, supra note 21, at 264-67; see also Young, Constitutional Avoidance, supra note 45, at 1593-1601 (arguing for the general legitimacy of normative canons of construction like the presumption against preemption).
66. See Exec. Order No. 13,132, 64 Fed. Reg. 43,255 (Aug. 4, 1999).
67. Id. at 43,257.
68. Compare United States v. Locke, 529 U.S. 89, 107-08 (2000) (suggesting that the Rice presump-tion applies only in areas of traditional state regulation), with Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (plurality opinion) (stating that the presumption applies "in all pre-emption cases").
69. At least some agencies, however, seem to have limited the presumption's scope anyway. See, e.g., Cleveland, Ohio Requirements for Transportation of Hazardous Materials, 66 Fed. Reg. 29,867, 29,870 (June 1, 2001) (gutting the effect of the Order through an expansive interpretation of Locke).
70. Dana, supra note 21, at 515; see also id. at 515-16 (demonstrating how regulation of greenhouse gases can plausibly be characterized as either a federal or a state issue); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 539 (1985) (rejecting the category of "traditional state functions" as hopelessly indeterminate and therefore unworkable). As Professor Dana points out, limiting the Rice presumption to areas of traditional state concern-even if we could identify those areas in a principled and consistent way-is also "inconsistent with [a] conception of the states as central to changing paradigms and practices in governance." Dana, supra note 21, at 517.
71. See Dana, supra note 21 ,at 509-11.
72. Mendelson, Chevron, supra note 49, at 782-86.
73. Id. at 785.
74. See generally Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Oct. 4, 1993) (providing for centralized OMB review of agency action).
75. The current version of the Order disclaims any right of private enforcement. See Exec. Order No. 13,132, 64 Fed. Reg. 43,255,43,259 (Aug. 4, 1999) ("This order is intended only to improve the internal management of the executive branch, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.").
76. See infra text accompanying note 124.
77. See Susan Bartlett Foote, Administrative Preemption: An Experiment in Regulatory Federalism, 70 VA. L. REV. 1429, 1441 (1984) ("The agency is an interested party, not an independent arbiter. This conflict of interest . . . exacerbates the federal bias inherent in the agency's non-representative character."). The federal courts, of course, are not wholly uninterested parties either; their paychecks come from the federal government, and they are likely to prefer dealing with federal law to state law. See Steven G. Calabresi, "A Government of Limited and Enumerated Powers ": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 808 (1995); Cross, supra note 33, at 1315-20 (1999). But there is no truly neutral tribunal available, and the courts are likely to be far preferable to federal agencies in this regard. The tendency of the federal courts to favor federal law can be disciplined somewhat, moreover, by interpretive presumptions.
78. Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837,842-44 (1984).
79. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 495-96 (1996) (giving "substantial weight" to the PDA's construction of the Medical Devices Amendments not to preempt the Lohrs' claims); Hills-borough County v. Automated Med. Labs., 471 U.S. 707, 714-15 (1985) (holding that the PDA's statement of its intent not to preempt state law in the relevant regulation was "dispositive . . . unless either the agency's position is inconsistent with clearly expressed congressional intent... or subsequent developments reveal a change in that position" (citation omitted)).
80. 517 U.S. 735 (1996).
81. 12 U.S.C. § 85 (2000); Smiley, 517 U.S. at 787.
82. See Marquette Nat'l Bank of Minneapolis v. First of Omaha Serv. Corp., 439 U.S. 299, 307-19 (1978).
83. Smiley, 517 U.S. at 739-40.
84. Id. at 744.
85. Okla. Natural Gas Co. v. Fed. Energy Regulatory Comm'n, 28 F.3d 1281, 1284 (D.C. Cir. 1994).
86. Teper v. Miller, 82 F.3d 989, 998 (11th Cir. 1996) (Kravitch, J.); see also McGreal, supra note 9, at 843 (outlining the conflict between Rice and Chevron). Judge Calabresi recently reached a similar conclusion, observing that "whatever deference would be owed to an agency's view in contexts where a presumption against federal preemption does apply, an agency cannot supply, on Congress's behalf, the clear legislative statement of intent required to overcome the presumption against preemption." Desiano v. Warner-Lambert & Co., 467 F.3d 85, 97-98 n.9 (2d Cir. 2006), aff'd by an equally divided court, 128 S. Ct. 1168(2008).
87. See, e.g., Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311, 322 (2d Cir. 2000). But cf. Am. Airlines, Inc. v. Dep't of Transp., 202 F.3d 788, 804-05 (5th Cir. 2000) (treating the choice as one between de novo review of the agency's preemption ruling and Chevron deference and noting that this choice was an unresolved question).
88. See Mass. Ass'n of Health Maint. Orgs. v. Ruthardt, 194 F.3d 176 (1st Cir. 1999). As Judge Selya pointed out in Ruthardt, "[t]he intervening decision in Medtronic [v. Lohr, 518 U.S. 470 (1996)] only complicates matters." Ruthardt, 194 F.3d at 182. Five justices in Medtronic did give some sort of deference to the agency's determination on the preemption question, see 518 U.S. at 494-96 (giving "substantial weight" to the agency's view on the preemption question); id. at 505 (Breyer, J., concurring in part and in the judgment) (suggesting that the agency "possesses a degree of leeway" in resolving preemption issues), but Justice O'Connor's dissent read them as not applying Chevron. See id. at 511 (O'Connor, J., concurring in part and dissenting in part). More importantly, Chevron and Rice pressed in the same direction in that case, as the agency had interpreted the statute not to preempt state law. Medtronic thus had no occasion to address the question that arises when the two rules of construction cut in different directions. The Court likewise had no occasion to consider this question in Geier. Justice Breyer's majority opinion did "place some weight" upon the agency interpretation in that case, see Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000), but the agency was interpreting the preemptive effect of its own regulations-not that of the underlying statute itself. Geier thus raised the issue of the preemptive effect of agency action per se, not the weight to be accorded an agency interpretation of a congressional enactment.
89. 127 S. Ct. 1559, 1572 (2007).
90. The most reliable proponent of this view on the current Court is Justice Stevens-may he live long and prosper. See, e.g., Watters, 127 S. Ct. at 1584 (Stevens, J., dissenting) ("No case from this Court has ever applied such a deferential standard [as Chevron] to an agency decision that could so easily disrupt the federal-state balance. . . . [W]hen an agency purports to decide the scope of federal preemption, a healthy respect for state sovereignty calls for something less than Chevron deference.").
91. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843-44 (1984); Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 197-98 (2006) (arguing that the delegation rationale has won out).
92. See Chevron, 467 U.S. at 866 ("When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges-who have no constituency-have a duty to respect legitimate policy choices made by those who do."). See generally Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 466-67 (1989) (discussing the delegation and democratic accountability justifications for Chevron).
93. Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2135 (2002) (noting this as "[t]he leading alternative theory for Chevron" but ultimately finding it unsatisfactory).
94. See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 370 (1986) (stating that "legislative intent to delegate the law-interpreting function" is "a kind of legal fiction"); Elhauge, supra note 93, at 2132 ("[I]t seems dubious to conclude that the enactment of a vague statute itself indicates a congressional intent to give agencies discretion over its interpretation.").
95. See Farina, supra note 92, at 498 (suggesting that judicial deference to an agency interpretation of a statute limits Congress's ability to delegate narrowly).
96. See, e.g., Am. Trucking Ass'ns v. Whitman, 531 U.S. 457, 474-75 (2001) ("[W]e have 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.'" (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting))).
97. See generally Young, Constitutional Avoidance, supra note 45, at 1552-53 (arguing that interpre-tive presumptions are a good way to protect underenforced constitutional norms).
98. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 458 (1990) (observing that federalism "assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society" and "increases opportunity for citizen involvement in democratic processes"); Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1, 3-10 (1988).
99. It is true that state institutions are democratically accountable only to the people of the state, and not to the nation as a whole, and that in some cases such state institutions will have incentives to favor local interests at the expense of national ones. Cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 326-30 (1819) (holding that Maryland could not tax the Bank of the United States, in part because the Maryland legislature did not account for the national interests embodied by the Bank). This observation might suggest a narrower scope for the Rice presumption in cases where a holding of nonpreemption would significantly disadvantage out-of-state interests vis-à-vis in-state interests. But if the state law in question really is discriminatory in this way, then it likely is unconstitutional under the dormant commerce clause without recourse to statutory preemption analysis. See, e.g., Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 99 (1994) ("If a restriction on commerce is discriminatory, it is virtually per se invalid."). In any event, many preemption cases will involve regulatory burdens falling on instaters and out-of-staters alike.
100. See, e.g., Danforth v. Minnesota, 128 S. Ct. 1029, 1041 (2008) (emphasizing that "States are independent sovereigns with plenary authority to make and enforce their own laws"); New York v. United States, 505 U.S. 144, 167-69 (1992) (grounding the anti-commandeering doctrine in the need to make sure that state governmental officials remain accountable to their own citizens).
101. Although expertise is sometimes cited as a basis for Chevron deference, see, e.g., Kaganovich v. Gonzales, 470 F.3d. 894, 897 (9th Cir. 2006), it is more frequently associated with lesser forms of deference, see, e.g., Fed. Express Corp. v. Holowecki, 128 S. Ct. 1147, 1156-58 (2008); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 855 (2001) ("Under Skidmore,... it does not matter whether Congress has delegated authority to an agency to administer the statute as long as the agency has relevant expertise.").
102. See, e.g., Paul W. Kahn, Marbury in the Modern Era: Comparative Constitutionalism in a New Key, 101 MICH. L. REV. 2677, 2699 (2003) ("The norms of Europe are bureaucratic, not democratic."); Jed Rubenfeld, Unilateralism and Constitutionalism, 71 N.Y.U. L. REV. 1971, 1995-96 (2004) (noting the "faith in an expert, neutral bureaucratic rationality" in European political thought); Eric Stein, Inter-national Integration and Democracy: No Love at First Sight, 95 AM. J. INT'L L. 489, 516 (2001) ("The European Community was conceived as an essentially technocratic organization, and has moved gradually toward greater democracy.").
103. See, e.g., Juliet Eilperin, EPA Tightens U.S. Smog Standards But Agency Ignored Advisers' Guidance, WASH. POST, Mar. 13,2008, at Al.
104. See, e.g., Sharkey, Products Liability Preemption, supra note 13, at 485-86.
105. See, e.g., Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727, 755-56 (2008); see also, e.g., Colo. Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1579 (10th Cir. 1991) (refusing to defer to an agency conclusion that a federal statute preempted state law on the ground that "a preemption determination involves matters of law-an area more within the expertise of the courts than within the expertise of the [agency]").
106. See Mendelson, Chevron, supra note 49, at 782-86.
107. Merrill, supra note 105, at 755.
108. See Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 446 (1989).
109. Cf. Gersen, supra note 17, at 213 (arguing that expertise is often a function of different administrators' incentives to invest in developing it).
110. See id. at 235-36.
111. See Merrill, supra note 105, at 759 (concluding that "it would disserve the cause of constitutional government" to "transfer broad authority from courts to agencies to decide when to displace state law").
112. See Sharkey, Fraud Caveat, supra note 13, at 844 (presenting a model of "complementary agency-court action in combating fraud" though "reserving a role for state law tort claims to handle enforcement and remedial responsibilities").
113. Professor Mendelson's contribution to the current Symposium comes down fairly firmly in favor of limiting agency preemption. See generally Nina A. Mendelson, A Presumption Against Agency Preemption, 102 NW. U. L. REV. 695, 698-99 (2008) [hereinafter Mendelson, Presumption]. Her prior entry in the field, while reaching similar conclusions, emphasized the presence of arguments on both sides of the question. See, e.g., Mendelson, Chevron, supra note 49, at 794-98 (arguing that agency self-interest weighs against Chevron deference on preemption questions, but only "weakly").
114. See Mendelson, Chevron, supra note 49, at 797-98 (arguing that the application of Skidmore deference to agency interpretation of preemption could present fewer problems than does Chevron def-erence); Merrill, supra note 105, at 774-76; Sharkey, Products Liability Preemption, supra note 13, at 491-98. Professor Merrill's embrace of Skidmore is more equivocal than Sharkey's or Mendelson's. He states: If forced to choose between the three established standards of review (Chevron, Skidmore, de novo), I would urge adoption of the Skidmore standard for preemption cases. For several reasons, however, I think the best course of action is to eschew any of the established three standards and instead adopt an approach to agency views about preemption that is sui generis to preemption cases. Merrill, supra note 105, at 775 (footnote omitted).
115. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
116. See Kristin E. Hickman & Matthew D. Krueger, In Search of the Modem Skidmore Standard, 107 COLUM. L. REV. 1235, 1252-59 (2007).
117. 529 U.S. 576 (2000).
118. 533 U.S. 218 (2001).
119. Hickman & Krueger, supra note 116, at 1252-53. 120 Id. at 1255-56.
120. Id. at 1280-81.
121. As a practical matter, it seems to me that Professors Merrill's and Mendelson's embrace of Skidmore fails to do justice to their persuasive identification of reasons not to trust federal agencies in preemption cases. As Mendelson points out, "judges regularly defer to agency interpretations under Skidmore." Mendelson, Chevron, supra note 49, at 798. If we really wish to limit agency preemption, stronger medicine is indicated.
122. Cf. Scott M. Sullivan, Rethinking Treaty Interpretation, 86 TEX. L. REV. 777, 779 (2007) (proposing more specific factors to guide Skidmore deference in the treaty interpretation context).
123. Exec. Order No. 13,132, 64 Fed. Reg. 43,255, 43,257 (Aug. 4, 1999).
124. See id. at 43,258 (section 6(c)(2)); see also id. at 43,258 (section 8(a)) (requiring that "any draft final regulation that has federalism implications" shall include, on submission to the Office of Management and Budget, a certification of compliance with the Order's requirement to consider federalism values).
125. See id. at 43,257-58 (section 6). Some lower courts have refused to defer to agency interpretations finding statutory preemption when these consultation requirements have not been met. See, e.g., Jackson v. Pfizer, Inc., 432 F. Supp. 2d 964,968 & n.3 (D. Neb. 2006).
126. See, e.g., Hickman & Krueger, supra note 116, at 1249 (noting that Chevron deference rests on a "presumption that Congress chose an agency rather than the courts to be the primary interpreter of a given statutory scheme," while Skidmore deference "merely reflects a policy of judicial prudence").
127. See, e.g., King v. United Order of Commercial Travelers, 333 U.S. 153, 158 (1948) ("[W]hen the issue confronting a federal court has previously been decided by the highest court in the appropriate state[,] the Erie R. Co. case decided that decisions and opinions of that court are binding on federal courts."); Cent. Union Tel. Co. v. Edwardsville, 269 U.S. 190, 195 (1925) (stating that, even where a federal right turns upon a state court's construction of state law, the construction "declared by the state court. . . should bind [the U.S. Supreme Court] unless so unfair or unreasonable in its application to those asserting a federal right as to obstruct it").
128. See, e.g., 28 U.S.C. § 2254(d) (2000) (holding that a federal court may grant habeas corpus relief to a person in state custody only if the state court's prior adjudication of the petitioner's claims "was contrary to, or involved an unreasonable application of, clearly established Federal law"); Williams v. Taylor, 529 U.S. 362, 410-11 (2000) (construing § 2254(d) to require some degree of deference to state court interpretations of federal law involving mixed questions of law and fact).
129. See, e.g., Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 213-14 (1983) (construing a state statute restricting building of nuclear plants to determine whether it fell within the field preempted by federal law).
130. Cf. Hickman & Krueger, supra note 116, at 1263 (observing that "Skidmore's attention to agency expertise might suggest that it should apply to state agencies," but recognizing that "the Court has never suggested that Skidmore extends that far"). Professors Hickman and Krueger focus on deference to state agency interpretations of state law only, and that may explain the paucity of Supreme Court authority. After all, the Supreme Court's jurisdiction to resolve questions of state law is considerably narrower than that of the lower federal courts. For a federal court of appeals decision according Skid-more deference to a state agency's construction of state law, see, for example, Ace Electrical Contractors, Inc. v. International Brotherhood of Electrical Workers, 414 F.3d 896,903 (8th Cir. 2005).
131. See supra text accompanying note 103.
132. Cf. Bamhart v. Wallon, 535 U.S. 212, 222 (2002) (suggesting that even Chevron deference should be tailored case by case).
133. See, e.g., Gonzales v. Raich, 545 U.S. 1, 29 (2005) (ignoring the effects of the California regulatory regime in assessing the federal government's interests in regulating medical marijuana); see also Young, Blowing Smoke, supra note 34, at 33-37 (criticizing the Court's approach).
134. Professor Dana's contribution to this Symposium suggests a different means of calibrating judicial application of the presumption against preemption. His approach would weigh the clarity of Congress's preemptive intent against the "weight of democratic support for nonfederal alternatives" at the state level. Dana, supra note 21, at 527. This approach is appealing for its recognition that state governments are themselves a font of democratic legitimacy. See id. at 518-22. I am troubled, however, by Dana's suggestion that courts should give more weight to the policies adopted by large or multiple states, as opposed to the policies of small or singular states. See id. at 522-23 (discussing Atkins v. Virginia and Roper v. Simmons as examples of Supreme Court precedents informed by the number of states rejecting the practices at issue in those cases). Such an approach obviously runs counter to the traditional notion that states are sovereign equals-a notion reflected, for example, in the "equal footing" doctrine. See, e.g., Coyle v. Smith, 221 U.S. 559, 567 (1911); Escanaba & Lake Mich. Transp. Co. v. City of Chicago, 107 U.S. 678, 689 (1883) ("Equality of constitutional right and power is the condition of all the states of the Union, old and new."). To be sure, valid federal legislation does sometimes treat different states differently, and indeed such legislation sometimes exempts certain states from preemption but not others. See, e.g., 42 U.S.C. § 7543(b)(1) (allowing California a special exemption to set more stringent vehicle emissions standards than would otherwise be allowed under the federal Clean Air Act). But such disparities illustrate that significant differences in majoritarian heft among state policies will often be reflected in the terms of legislation; building such differences into the judicial test for preemption as well seems like double-counting. Moreover, such an approach would likely exacerbate the phenomenon of "horizontal aggrandizement," whereby groups of powerful states use the federal government as an instrument to impose their preferences on other states. See Baker & Young, supra note 43, at 117-28. My own view is that preemption doctrine should be attuned to protecting Justice Brandeis's "single courageous state," New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting), as well as large and populous state coalitions.
135. See Foote, supra note 77, at 1429 ("[In many federal health and safety statutes,] Congress delegated to federal administrative agencies the responsibility for deciding whether to preempt... state laws or to exempt them from preemption under the governing federal statute.").
136. 47 U.S.C. § 303(r) (2000); see also id. § 154(i) ("The Commission may perform any and all acts, make such rales and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions.").
137. See, e.g., Cable Television Report and Order, 49 F.C.C.2d 470,480 (1974).
138. See, e.g., Technical and Operational Requirements of Part 76 Cable Television, 50 Fed. Reg. 52,462, 52,464-65 (Dec. 24, 1985) (codified at 47 C.F.R. pt. 76 (1986)) (preempting local regulation of technical signal quality standards for cable television).
139. Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1572 (2007).
140. Mendelson, Presumption, supra note 113, at 695.
141. U.S. CONST, art. VI, cl. 2. The same provision also recognizes treaties as supreme federal law. See id.
142. See generally Clark, supra note 44, at 1330 (emphasizing that the text of the Supremacy Clause limits the forms of federal law that can trump state law).
143. The most ardent anti-preemption member of the current Supreme Court, Justice Stevens, did not dispute in Waiters that Congress may delegate preemptive power; instead, he disputed "whether Congress has delegated to the Comptroller of the Currency the authority to preempt the laws of a sovereign State . . ., and if so, whether that authority was properly exercised here." Watters, 127 S. Ct. at 1582 (Stevens, J., dissenting).
144. See supra note 49 and accompanying text.
145. La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986).
146. See, e.g., City of New York v. FCC, 486 U.S. 57, 63-64 (1988) (citing La. Pub. Serv. Comm 'n, 476 U.S. at 368-69).
147. See id. at 64-66; Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 700 (1984); Fid. Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141,154 (1982).
148. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554 (1985).
149. In Stephen Gardbaum's terms, this position would allow agencies to create federal law that is supreme in the event of a conflict, but deny to the agency the additional power to preempt or displace state law in the absence of such a conflict. See generally Gardbaum, supra note 23, at 40-43 (distinguishing "preemption" from "supremacy").
150. Communications with Represented Persons, 59 Fed. Reg. 39,910 (Aug. 4, 1994). A subsequent statute mandated that DOJ attorneys comply with state ethical rules. See 28 U.S.C. § 53OB (2000).
151. Communications with Represented Persons, 59 Fed. Reg. at 39,931.
152. Id.
153. See Gardbaum, supra note 23, at 46-48.
154. See supra note 137.
155. See generally Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 315 (2000) ("Rather than having been abandoned, the [nondelegation] doctrine has merely been renamed and relocated. Its current home consists of a set of nondelegation canons, which forbid executive agencies from making certain decisions on their own.").
156. 531 U.S. 159(2001).
157. See id. at 163-64. The rule itself may be found at Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. 41,217 (Nov. 13, 1986).
158. SWANCC, 531 U.S. at 172-73. In support of this reasoning, the Court cited the rule favoring statutory constructions that avoid constitutional doubts. Id. at 173 (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)).
159. 529 U.S. 576 (2000).
160. 533 U.S. 218 (2001).
161. Christensen, 529 U.S. at 587; Mead, 533 U.S. at 226-27. See generally Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467 (2002) (exploring the history of judicial interpretation of agency preemption); Sunstein, supra note 91.
162. See Mead, 533 U.S. at 230 ("It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force.").
163. Cf. Stephenson, supra note 46 (describing ways in which increasing enactment costs may protect constitutional values).
164. Mead and Christensen have created difficult line-drawing questions of their own because it is not always easy to distinguish between congressional delegations of authority to make legislative rules, on the one hand, and merely interpretive rules, on the other. See Sunstein, supra note 91, at 222 (complaining that "the 'force of law' test introduces considerable complexity into the Chevron analysis"). For one effort to recover a convention for interpreting Congress's intent on this question, see generally Merrill & Watts, supra note 162. The important point for my purposes, however, is that Chevron already requires this difficult line-drawing enterprise. The limit on executive preemption proposed here would thus require no new doctrinal formula for preemption cases; preemption analysis would instead piggyback on Chevron doctrine.
165. 530 U.S. 363 (2000).
166. See id. at 388; see also Young, Dual Federalism, supra note 45, at 168-77 (criticizing this aspect of the preemption argument in Crosby).
167. It would be unfair to suggest that the existence of the unused delegations was the only argument for preemption in Crosby. See Crosby, 530 U.S. at 377-80 (employing a more traditional statutory preemption argument). But it does seem to have played an important role in the analysis. See generally Edward T. Swaine, Crosby as Foreign Relations Law, 41 VA. J. INT'L L. 481 (2001) (reading Crosby's preemption analysis as strongly influenced by more general concerns about state involvement in foreign affairs). My argument is that such a delegation ought not to count at all-or indeed count against preemption, as I explain below-until it is actually exercised.
168. 471 U.S. 707 (1985).
169. Id. at 721.