Tennis with the net down: Administrative federalism without congress

Duke Law Journal

Volumn 57, Issue 7, 2008, Pages 2112-2155

  Benjamin, Stuart Minor ^a   Young, Ernest A ^a  

^a DUKE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 54349100254     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (185)

1. Sullivan spoke up during his client North's testimony and was told to be silent. Sullivan responded, "I'm not a potted plant. I'm here as a lawyer. That's my job." Joint Hearings Before S. Select Comm. on Secret Military Assistance to Iran and the Nicaraguan Opposition and H. Select Comm. to Investigate Covert Arms Transactions with Iran, 100th Cong. 100-7 Pt. I, 263 (1987) (testimony of Oliver L. North); see also Washington Talk: Briefing; Potted Plants Galore, N.Y. TIMES, Mar. 17, 1988, at B6.
2. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1249 (1994).
3. Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. 1933 (2008).
4. Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. 2023 (2008).
5. Galle & Seidenfeld, supra note 3, at 1936-40.
6. Metzger, supra note 4, at 2028.
7. See Lawson, supra note 2, at 1253.
8. This disagreement has raged since the day we met, as coclerks in August 1995. Professor Benjamin would characterize Professor Young as the most egregiously hidebound variety of Burkean conservative; Professor Young thinks Professor Benjamin is a Jacobin.
9. Lawson, supra note 2, at 1253.
10. THE OXFORD DICTIONARY OF QUOTATIONS 295 (Angela Partington ed., 4th ed. 1996).
11. In some variants of beer pong, for example, the net is removed from the ping pong table in order to facilitate a very low and fast serve. See Dartmouth Beer Pong, WIKIPEDIA.COM (available at http://en.wikipedia.org/wiki/Dartmouth_pong) (last visited May 31, 2008).
12. Galle & Seidenfeld, supra note 3, at 1938-39.
13. See Metzger, supra note 4, at 2059.
14. K.N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1 (1934).
15. See infra Part III.A. See generally 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).
16. See, e.g., CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE 143 (1990) ("Broad delegations of power to regulatory agencies, questionable in light of the grant of legislative power to Congress in Article I of the Constitution, have been allowed largely on the assumption that courts would be available to ensure agency fidelity to whatever statutory directives have been issued.").
17. Lisa Schultz Bressman, Interpreting Regulatory Statutes in Light of Legislative Realities, 58 DUKE L.J. (forthcoming 2009) (manuscript at 8-10, on file with the Duke Law Journal) [hereinafter Bressman, Interpreting Regulatory Statutes].
18. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 493-503 (2003).
19. See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 COLUM. L. REV. 1749, 1796-1804 (2007).
20. See, e.g., Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 234-52, 278-87 (2000) (arguing that federalism is best protected by political party dynamics rather than judicial enforcement of textual limits on Congress's powers);
21. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2385 (2006) (suggesting that "the separation of powers as the Framers understood it . . . ha[s] ceased to exist" and that "[t]he enduring institutional form of democratic political competition has turned out to be not branches but political parties").
22. EDWARD L. RUBIN, BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN STATE 2 (2005). Although Dean Rubin does not mention federalism in this particular passage, he has made his contempt for people who care about federalism clear in other work.
23. See Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 908 (1994) ("When federalism is raised as an argument against some national policy, we generally reject it by whatever means are necessary, including, in one case, killing its proponents [the Civil War]. This Article . . . asserts that, on grounds of political morality, it has been exactly the right thing to do.").
24. See RUBIN, supra note 21, at 22-36 (administration); id. at 18 (microanalysis); id. at 48-53 (networks).
25. See Ernest A. Young, Executive Preemption, 102 NW. U. L. REV. 869 (2008).
26. And frankly, this is something of a pleasant surprise.
27. Galle & Seidenfeld, supra note 3, at 1994.
28. Id. at 1949.
29. Professors Galle and Seidenfeld explain the crux of their argument: That problem, of course, raises a question of its own: who best to decide how best to divide [power between states and the federal government]? With some modest exceptions, most courts and commentators have looked to Congress. Federal courts have done little to limit federal power directly. Instead, they have insisted on rules that give primacy to Congress, but also impose some burden on Congress to make good decisions. We argue in this Article that this allocation is a mistake, and that instead federal agencies should often be the preferred institutions in which to vest the authority to allocate power between states and the federal government. See id. at 1936 (footnote omitted).
30. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). On the tension between the Rice presumption and doctrines of deference to agencies, see, for example, Damien J. Marshall, Note, The Application of Chevron Deference in Regulatory Preemption Cases, 87 GEO. L.J. 263, 264, 268-74 (1998).
31. Galle & Seidenfeld, supra note 3, at 1992.
32. Id. at 1994.
33. See id. We doubt that "formalism" is the right word for the view that Professors Galle and Seidenfeld oppose. See infra text accompanying notes 71-78.
34. Cf. Wikipedia, The New Black, http://en.wikipedia.org/wiki/ The_new_black (last visited May 31, 2008) ("'_ is the new black' is a catch phrase and snowclone used to indicate the sudden popularity or versatility of an idea at the expense of the popularity of a second idea. It is also the origin of a snowclone of the form 'X is the new Y.'").
35. For those not hip enough to know what a "snowclone" is, see Glen Whitman, Phrases for Lazy Writers in Kit Form Are the New Clichés, AGORAPHILIA, http://agoraphilia.blogspot.com/ 2004_01_11_agoraphilia_archive.html#107412842921919301 (Jan. 14, 2004, 17:00).
36. Metzger, supra note 4, at 2070.
37. See id. at 2045-48. For an example, see Gonzales v. Raich, 125 S. Ct. 2195, 2198, 2201 (2005) (construing Congress's power under the Commerce Clause to reach in-state, noncommercial production of medical marijuana).
38. Metzger, supra note 4, at 2087.
39. Id. at 2093.
40. Galle & Seidenfeld, supra note 3, at 1941.
41. Id. at 1941-42 (footnotes omitted).
42. See supra note 26 and accompanying text.
43. Galle & Seidenfeld, supra note 3, at 1949.
44. New York v. United States, 505 U.S. 144, 157 (1992).
45. Galle & Seidenfeld, supra note 3, at 1942; see also id. at 2021 ("We have argued that the realist view of federalism recognizes that the principle of limited federal power is an instrumental one.").
46. See id. at 1949 (stating that their analysis "credits the availability of dual sovereignty only as a functional matter - that is, only when that availability is related to regulatory outcomes and not simply out of some posited formalistic preference for protection of dual sovereignty").
47. Consequentialism may be endemic to administrative law experts (although Justice Scalia seems to have avoided the bug thus far). See, e.g., STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 18 (2005) ("Since law is connected to life, judges, in applying a text in light of its purpose, should look to consequences, including 'contemporary conditions, social, industrial, and political, of the community to be affected.'" (quoting LEARNED HAND, THE SPIRIT OF LIBERTY 109 (3d ed. 1960)));
48. Ken I. Kersch, Justice Breyer's Mandarin Liberty, 73 U. CHI. L. REV. 759, 766 (2006) (characterizing Justice Breyer's jurisprudence as driven by attention to the purposes of legislation and the consequences of resolving disputes about those purposes in particular ways).
49. Metzger, supra note 4, at 2073.
50. Put more precisely, federalism itself has no inherent value to weigh against any decrease in utility that might result from interference with federal policy goals.
51. See supra note 10 and accompanying text.
52. See, e.g., Stuart Minor Benjamin & Arti K. Rai, Who's Afraid of the APA? What the Patent System Can Learn from Administrative Law, 95 GEO. L.J. 269, 308-17 (2007) (applying comparative institutional analysis to patent law);
53. Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 WM. & MARY L. REV. 1733, 1740-58 (2005) [hereinafter Young, Making Federalism Doctrine] (arguing that the Constitution's provision for federalism allows sufficient room for courts to make "compensating adjustments" over time);
54. Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 65-122 (2004) [hereinafter Young, Two Federalisms] (applying comparative institutional analysis to federalism doctrine).
55. Llewellyn, supra note 14.
56. Brian Leiter, American Legal Realism, in THE BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY 50, 61 (Martin P. Golding & William A. Edmundson eds., 2003) (noting "a disjunction between the 'law in the books' and the 'law in action'" as characteristic of legal realism).
57. Llewellyn, supra note 14, at 3.
58. Id. at 15.
59. See id. at 15-17.
60. Leiter, supra note 50, at 51.
61. Id. at 52; see also NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 123 (1995) ("[T]he realist assumption . . . was that judges - stimulated, primarily, by the facts before them rather than by the rules to which those facts might be fitted - work backwards 'from a desirable conclusion to one or another of a stock of logical premises.'" (footnotes omitted)
62. (quoting Max Radin, The Theory of Judicial Decision: Or How Judges Think, 11 A.B.A. J. 357, 359 (1925))).
63. See DUXBURY, supra note 55, at 71 ("'Realism' describes accurately what was possibly the single unifying ambition of so-called realists: namely, the commitment to candour, to telling it - whatever 'it' happened to be - as it is.").
64. WILLIAM TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT 74 (rev. ed. 1985).
65. See Leiter, supra note 50, at 58. Norms play a significant role in many areas of law (and legal scholarship). See, e.g., Arti Kaur Rai, Regulating Scientific Research: Intellectual Property Rights and the Norms of Science, 94 NW. U. L. REV. 77, 88-115 (1999) (discussing the role of norms in science).
66. The obvious analogy is to the use of "conventions" in the British system. See ADAM TOMKINS, PUBLIC LAW 10-12 (2003).
67. See DUXBURY, supra note 55, at 96-97 (stressing the empiricism of the realists).
68. See, e.g., Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L.J. 408 (2007) [hereinafter Young, Outside the Constitution]. On the British Constitution, see TOMKINS, supra note 59, at 1-30.
69. For a similar analogy between Llewellyn's realism and New Zealand's unwritten constitution, see Matthew S.R. Palmer, Using Constitutional Realism to Identify the Complete Constitution: Lessons from an Unwritten Constitution, 54 AM. J. COMP. L. 587 (2006). We note that our other coclerk, Heather Gerken, has been kind enough to describe Professor Young's article as a "signal[] that the end of the world is nigh."
70. Heather K. Gerken, The Hydraulics of Constitutional Reform: A Skeptical Response to Our Undemocratic Constitution, 55 DRAKE L. REV. 925, 932 (2007).
71. See, e.g., A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 22-23 (8th ed. 1915).
72. For an argument that British law is beginning to reflect a distinction between 'higher' and 'ordinary' law, see MARTIN LOUGHLIN, SWORD & SCALES: AN EXAMINATION OF THE RELATIONSHIP BETWEEN LAW AND POLITICS 4 (2000).
73. See Young, Outside the Constitution, supra note 61, at 426-28.
74. Our great friend Sanford Levinson has argued that this perspective understates the extent to which, on certain critical issues like the malapportionment of the Senate or the distortions that the Electoral College produces, the canonical text does amount to an "iron cage" that prevents necessary reforms. See Sanford Levinson, Reconsidering the Syllabus in "Constitutional Law," 118 YALE L.J. POCKET PART 7, 9-10 (2008), http://thepocketpart.org/2008/05/ 16/levinson.html. We are not nearly as worked up about those problems as Professor Levinson, but in any event we suspect that extracanonical reforms can in fact fix or at least mitigate many of them.
75. See Ernest A. Young, Curricula and Complacency: A Response to Professor Levinson, 118 YALE L.J. POCKET PART 12, 15 & n.15 (2008), http://thepocketpart.org/2008/05/16/young.html (pointing out, for example, that a proposed interstate compact could render the popular vote decisive in presidential elections with the concurrence of as few as eleven states).
76. See generally BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
77. See Young, Outside the Constitution, supra note 61, at 448-59; see also Ernest A. Young, The Constitutive and Entrenchment Functions of Constitutions: A Research Agenda, 10 U. PA. J. CONST. L. 399 (2008).
78. Llewellyn, supra note 14, at 29.
79. Or so we infer from watching people who are actually good at tennis. On the rare occasions when we play, the net plays an extremely significant role. Most of our shots end up there.
80. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J., concurring) (suggesting that presidential authority is almost always a function of the consistency of executive action with congressional legislation); Ernest A. Young, Toward a Framework Statute for Supranational Adjudication, 57 EMORY L.J. 93, 95-100 (2007) (suggesting that structural questions concerning the relationship between domestic and supranational courts are largely undetermined by the canonical Constitution and should be resolved through framework legislation).
81. Lawrence Solum, Legal Theory Lexicon 043: Formalism and Instrumentalism, LEGAL THEORY LEXICON, http://legaltheorylexicon.blogspot.com/2005/05/legal-theory-lexicon-043- formalism-and.html (May 22, 2005, 14:10);
82. see also Frederick Schauer, Formalism, 97 YALE L.J. 509, 509-10 (1988) ("Even a cursory look at the literature reveals scant agreement on what it is for decisions in law, or perspectives on law, to be formalistic, except that whatever formalism is, it is not good.").
83. Schauer, supra note 71, at 510; see also Solum, supra note 71 ("The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provide[s] rules and that these rules can, do, and should provide a public standard for what is lawful (or not)."). Adrian Vermeule has identified "two senses of formalism," both of which involve limiting the considerations available to a decisionmaker: first, an "attempt to deduce legal rules from intelligible essences, such as 'the nature of contracts' or 'the rule of law,' while excluding considerations of morality and policy," and second, a "rule-bound decision-making strategy," under which "judges . . . should restrict the range of information they attempt to collect and reduce the complexity of their behavioral repertoire." ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 5 (2006).
84. See, e.g., Kathleen M. Sullivan, The Supreme Court, 1987 Term - Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 58 (1992) ("A legal directive is 'standard'-like when it tends to collapse decisionmaking back into the direct application of the background principle or policy to a fact situation.").
85. See U.S. CONST. art. I, § 1.
86. Cf. Schauer, supra note 71, at 537 ("Understanding the way in which rules truncate the range of reasons available to a decisionmaker helps us to appreciate the distinction between formalism and functionalism, or instrumentalism.").
87. Galle & Seidenfeld, supra note 3, at 1939.
88. See Bressman, Interpreting Regulatory Statutes, supra note 17 (manuscript at 46).
89. See, e.g., VERMEULE, supra note 72, at 33 ("[T]he best reading of the Constitution is that interpretive formalism and interpretive anti-formalism are constitutionally optional for judges.").
90. In addition to this symposium, many of the articles in the Northwestern Law Review's 2008 symposium on preemption engaged that question in an administrative context. See, e.g., Nina A. Mendelson, A Presumption Against Agency Preemption, 102 NW. U. L. REV. 695 (2008);
91. Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727 (2008);
92. Catherine M. Sharkey, The Fraud Caveat to Agency Preemption, 102 NW. U. L. REV. 841 (2008); Young, Executive Preemption, supra note 23;
93. see also Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737 (2004) [hereinafter Mendelson, Chevron and Preemption];
94. Paul E. McGreal, Some Rice With Your Chevron?: Presumption and Deference in Regulatory Preemption, 45 CASE W. RES. L. REV. 823 (1995);
95. Catherine M. Sharkey, Preemption by Preamble: Federal Agencies and the Federalization of Tort Law, 56 DEPAUL L. REV. 227 (2007) [hereinafter Sharkey, Preemption by Preamble].
96. On preemption more generally, see the essays in FEDERAL PREEMPTION: STATES' POWERS, NATIONAL INTERESTS (Richard A. Epstein & Michael S. Greve eds., 2007).
97. See, e.g., Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle? 111 HARV. L. REV. 2180, 2213 (1998) (coining the term "federalist revival"). The leading cases on the (canonical) constitutional side are Printz v. United States, 521 U.S. 898 (1997) (holding that Congress may not commandeer state executive officers by requiring them to enforce federal law), Seminole Tribe v. Florida, 517 U.S. 44 (1996) (holding that Congress may not, when using its Article I powers, abrogate the states' sovereign immunity from private suits for money damages), and United States v. Lopez, 514 U.S. 549 (1995) (holding that the federal Gun Free School Zones Act exceeded Congress's Commerce Clause authority). For a general account of this line of cases, see Young, Two Federalisms, supra note 48, at 23-32.
98. See, e.g., Egelhoff v. Egelhoff, 532 U.S. 141, 160-61 (2001) (Breyer, J., dissenting) (observing that preemption cases present "the true test of federalist principle"); Calvin Massey, Federalism and the Rehnquist Court, 53 HASTINGS L.J. 431, 508 (2002) (underscoring preemption's significant implications for federalism); Young, Two Federalisms, supra note 48, at 130-34 (attempting to place preemption at "the center of our federalism debates").
99. See, e.g., Sharkey, Preemption by Preamble, supra note 79, at 227-28 (describing an administrative process of "silent tort reform"); Joel Brinkley, Out of Spotlight, Bush Overhauls U.S. Regulations, N.Y. TIMES, Aug. 14, 2004, http://www.nytimes.com/ 2004/08/14/politics/14bush.html?ex=1250136000&en=1bf32d7574b25b2b&ei= 5090) (discussing the Bush administration's expansive use of agency authority). For additional citations, see Metzger, supra note 4, at 2025 n.3.
100. See, e.g., Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1572 (2007) (avoiding deciding how much deference to accord agency preemption determinations by basing the Court's holding that state law was preempted on the Court's independent interpretation of the underlying statute); Gonzales v. Oregon, 126 S. Ct. 904, 914-21 (2006) (refusing to defer to the attorney general's interpretation of the Controlled Substance Act as authorizing regulations preempting Oregon's physician-assisted suicide law); Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000) (placing "some weight" on the agency's conclusion that state law posed an obstacle to executing federal policy); Medtronic, Inc. v. Lohr, 518 U.S. 470, 495-97 (1996) (giving "substantial weight" to the Food and Drug Administration's construction of the Medical Devices Amendments not to preempt the Lohrs' claims); Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 744 (1996) (deferring to an agency's construction of a statute in a preemption case, but distinguishing "the question of the substantive (as opposed to pre-emptive) meaning of a statute [from] the question of whether a statute is pre-emptive" and "assum[ing] (without deciding) that the latter question must always be decided de novo by the courts"). The new cases are Altria Group, Inc. v Good, 501 F.3d 29 (1st Cir. 2007), cert. granted, 128 S. Ct. 1119 (2008) (raising questions concerning, inter alia, the scope of agency authority to preempt state law by informal action), and Levine v. Wyeth, 944 A.2d 179, 192-94 (Vt. 2006), cert. granted, 128 S. Ct. 1118 (2008) (raising the question of how much deference is due a federal agency's interpretation of its decisions' preemptive effect).
101. See Young, Executive Preemption, supra note 23, 891-92, 899 (suggesting that it should).
102. See Mendelson, Chevron and Preemption, supra note 79, at 782-85 (discussing agencies' generally miserable record of compliance with such orders).
103. See id. at 739-43 (parsing this question and recommending that Skidmore, not Chevron, deference applies); Merrill, supra note 79, at 728-30 (recommending that courts adopt a preemption-specific deference analysis).
104. INS v. Chadha, 462 U.S. 919 (1983)
105. Id. at 985-86 (White, J., dissenting).
106. Id. at 953-54 n.16 (majority opinion).
107. U.S. CONST. art. VI, cl. 2.
108. U.S. CONST. art. I, § 1.
109. See Clinton v. City of New York, 524 U.S. 417, 447 (1998) (striking down the line-item veto); Chadha, 462 U.S. at 959 (striking down the legislative veto).
110. As we discuss in Part III, the Court has implemented this principle through developing a variety of "clear statement" requirements that insulate the states from federal interference absent explicit congressional decisions to the contrary. See infra notes 135-38 and accompanying text.
111. It may be helpful to compare the status of federal agency action with that of federal common law, which may also preempt state law in the event of a conflict. We doubt anyone would say, however, that judge-made rules that fill gaps in federal statutes, for example, are the same as the federal statutes themselves. As one of us has demonstrated elsewhere, the preemptive force of federal common law derives from the supremacy of the underlying federal legislative enactments. See Ernest A. Young, Preemption and Federal Common Law, 83 NOTRE DAME L. REV. (forthcoming 2008) (manuscript at 125).
112. La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355 (1986).
113. Id. at 374. The Supreme Court came closest to equating administrative regulations and federal statutes in Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141 (1982), stating that "[f]ederal regulations have no less pre-emptive effect than federal statutes," id. at 153. But the Court immediately turned its focus back to Congress by noting that "Congress has directed [the] administrator to exercise his discretion" and that the administrator's actions were "subject to judicial review . . . to determine whether he has exceeded his statutory authority." Id. at 153-54; see also id. at 152 ("The pre-emption doctrine, which has its roots in the Supremacy Clause, requires us to examine congressional intent." (citation omitted)). Nothing in de la Cuesta suggests that agency actions have preemptive force apart from underlying congressional action.
114. Galle & Seidenfeld, supra note 3, at 1939.
115. Metzger, supra note 4, at 2072, 2080.
116. Galle & Seidenfeld, supra note 3, at 1940.
117. Metzger, supra note 4, at 2095.
118. Galle & Seidenfeld, supra note 3, at 1936.
119. Metzger, supra note 4, at 2099.
120. Id. at 2091.
121. See, e.g., Kramer, supra note 20, at 223-27 (demolishing many of the traditional arguments that the states' representation in Congress protects the institutional interests of the states); Saikrishna B. Prakash & John C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459, 1460 (2001) (likening reliance on politics to safeguard federalism to "reinforcing the walls of a sand castle as the tide returns");
122. William Marshall, American Political Culture and the Failures of Process Federalism, 22 HARV. J.L. & PUB. POL'Y 139, 147-52 (1998) (suggesting that changing political realities have undermined what few political safeguards existed).
123. Whitman v. Am. Trucking Ass'ns, Inc. 531 U.S. 457 (2001).
124. See Am. Trucking Ass'ns, Inc. v. U.S. EPA, 175 F.3d 1027, 1038 (D.C. Cir. 1999), rev'd in part on other grounds, 531 U.S. 457 (2001). Where (as here) statutory language and an existing agency interpretation involve an unconstitutional delegation of power, but an interpretation without the constitutional weakness is or may be available, our response is not to strike down the statute but to give the agency an opportunity to extract a determinate standard on its own. Doing so serves at least two of three basic rationales for the nondelegation doctrine. If the agency develops determinate, binding standards for itself, it is less likely to exercise the delegated authority arbitrarily. And such standards enhance the likelihood that meaningful judicial review will prove feasible. Id. (citations omitted); see also Am. Trucking Ass'ns, Inc. v. EPA, 195 F.3d 4, 6-8 (D.C. Cir. 1999), rev'd in part on other grounds, 531 U.S. 457 (2001) (elaborating, on petition for rehearing, upon the court's prior delegation holding). The circuit court acknowledged that [a] remand of this sort of course does not serve the third key function of nondelegation doctrine, to "ensure[] to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will." The agency will make the fundamental policy choices. Am. Trucking Ass'ns, Inc. 175 F.3d at 1038 (alteration in original) (quoting Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring)). Nonetheless, the court found that sacrifice worth making because "the remand [would] ensure that the courts not hold unconstitutional a statute that an agency, with the application of its special expertise, could salvage." Id.
125. Whitman, 531 U.S. at 472-73.
126. Both arguments, in fact, were advanced in our colloquy at the symposium. See Symposium, 38th Annual Duke Law Journal Administrative Law Symposium: Administrative Law, Preemption, and Federalism, http://realserver.law.duke.edu/ramgen/spring08/students/04152008.rm (Apr. 15, 2008).
127. Metzger, supra note 4, at 2094.
128. See supra text accompanying note 90.
129. Metzger, supra note 4, at 2094.
130. Id.
131. Professor Young thinks it is; Professor Benjamin thinks it isn't. See infra p. 2113. Part III also identifies ways in which these administrative mechanisms may provide considerably less protection, as a practical matter, than an approach that insists upon congressional action. See infra text accompanying notes 155-63.
132. Cf. Sharkey, Preemption by Preamble, supra note 79, at 242 ("Congressional intent is at the heart of conventional preemption analysis.").
133. See, e.g., Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed. Reg. 3,922, 3,934 (Jan. 24, 2006) (to be codified at 21 C.F.R. pts. 201, 314, 601) ("FDA approval of labeling under the act . . . preempts conflicting or contrary State law."); Tresa Baldas, FDA's Pre-emption Rule Splits the Courts, NAT'L L.J., Apr. 30, 2007, at 1, available at http://www.law.com/jsp/article.jsp?id=1178183076770; Sharkey, Preemption by Preamble, supra note 79, at 230-42 (surveying actions by the Food and Drug Administration, the National Highway Traffic Safety Administration, and the Consumer Product Safety Commission). Professor Sharkey suggests that "these preemption preambles may be only the tip of the iceberg - a harbinger of a future where federal agency regulations come armed with directives that displace competing or conflicting state regulations or common law as a matter of course." Id. at 227-28.
134. Sharkey, Preemption by Preamble, supra note 79, at 243.
135. See, e.g., Lawson, supra note 2, at 1249 (stating that he is willing "to hold fast to the Constitution though the heavens may fall").
136. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942).
137. See, e.g., Wechsler, supra note 15, at 546-52 (discussing the "crucial role [of the states] in the selection and the composition of the national authority"); Kramer, supra note 20, at 234-52 (updating Wechsler's argument).
138. See, e.g., SUNSTEIN, supra note 16, at 143 ("Broad delegations of power to regulatory agencies . . . have been allowed largely on the assumption that courts would be available to ensure agency fidelity to [Congress's] statutory directives . . . .").
139. One of us has tried to flesh out this principle elsewhere, see Young, Executive Preemption, supra note 23, at 886-88, but Professor Benjamin would no doubt flesh it out quite differently - thereby underscoring the difficulty of the enterprise.
140. See Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1572 (2007) (avoiding the question as "academic").
141. See generally Young, Making Federalism Doctrine, supra note 48, at 1762-75.
142. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1330-31 (2001) (quoting Wechsler, supra note 15, at 544).
143. See Wechsler, supra note 15, passim.
144. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550-54 (1985).
145. Clark, supra note 124, at 1330; see also MARTHA DERTHICK, KEEPING THE COMPOUND REPUBLIC: ESSAYS ON AMERICAN FEDERALISM 28 (2001) (observing that inertiabased limits on federal action protect state autonomy because "[t]he states are the 'default setting' of the American federal system");
146. Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 YALE L.J. (forthcoming 2008) (manuscript at 32-33) (discussing federalism implications of the "enactment costs" of federal legislation).
147. See Carlos Manuel Vázquez, The Separation of Powers as a Safeguard of Nationalism, 83 NOTRE DAME L. REV. (forthcoming 2008) (manuscript at 4-5).
148. U.S. CONST. amend. X; see also United States v. Lopez, 514 U.S. 549, 600-01 (1995) (invalidating the federal Gun Free School Zones Act as outside the limits of Congress's Commerce Power); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824) (stating that "[t]he enumeration presupposes something not enumerated").
149. See, e.g., THE FEDERALIST Nos. 45 & 46, at 311, 317-18 (James Madison) (emphasizing the importance of the states' representation in the federal lawmaking process); Letter from James Madison to Edward Everett (Aug. 28, 1830), in 9 THE WRITINGS OF JAMES MADISON 383, 395-96 (1910) ("As a security of the rights & powers of the States in their individual capacities, ag[ainst] an undue preponderance of the powers granted to the Government over them in their united capacity, the Constitution has relied on . . . [t]he responsibility of the Senators and Representatives in the Legislature of the U. S. to the Legislatures & people of the States."); see also THE FEDERALIST No. 51, at 348-51 (James Madison) (emphasizing that checks and balances, including checks built into the lawmaking process, would preserve balance among competing institutions); Clark, supra note 124, at 1346-67 (surveying the founding debates over the Supremacy Clause and the Constitution's lawmaking procedures).
150. Clark, supra note 124, at 1331 (explaining that these institutional dynamics "suggest that the Founders understood constitutionally prescribed lawmaking procedures to establish the exclusive means of adopting 'the supreme Law of the Land'").
151. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) (alteration in original) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)); see also Loving v. United States, 517 U.S. 748, 771 (1996) ("It does not suffice to say that Congress announced its will to delegate certain authority. . . . The intelligible-principle rule seeks to enforce the understanding that Congress may not delegate the power to make laws and so may delegate no more than the authority to make policies and rules that implement its statutes.").
152. See, e.g., Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1572 (2007) (holding a state banking law preempted but focusing on the statutory text, not the agency's judgment).
153. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554 (1985).
154. Gregory v. Ashcroft, 501 U.S. 452, 464 (1991) (quoting LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-25, at 480 (2d ed. 1988)); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989) ("[I]f Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.'" (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985))).
155. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
156. See Gonzales v. Oregon, 126 S. Ct. 904, 914-22, 925 (2006) (rejecting the attorney general's interpretation of the Controlled Substances Act to ban physician assisted suicide, in part, because "such an obscure grant of authority to regulate areas traditionally supervised by the States' police power" was unlikely).
157. See Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172 (2001) ("Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result."). Similar clear statement rules apply when Congress supplants neutral state procedural rules in association with federal claims brought in state court, see Howlett v. Rose, 496 U.S. 356, 372 (1990), when Congress, in the exercise of its power to enforce the Reconstruction Amendments, abrogates state sovereign immunity from private suits for money damages, see Atascadero, 473 U.S. at 242, and when Congress affixes conditions to grants of federal funds, see Arlington Cent. Sch. Dist. v. Murphy, 548 U.S. 291, 296 (2006).
158. See Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 TEX. L. REV. 1549, 1552 (2000).
159. See Young, Two Federalisms, supra note 48, at 123-27. For a particular application of this approach to administrative federalism, see generally Young, Executive Preemption, supra note 23.
160. For an example of this approach to administrative law, see generally Benjamin & Rai, supra note 48.
161. See United States v. Bass, 404 U.S. 336, 349 (1971) ("In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision." (emphasis added)).
162. See supra Part III.A.
163. Galle & Seidenfeld, supra note 3, at 1971; Mendelson, Chevron and Preemption, supra note 79, at 738.
164. RICHARD H. FALLON, JR., DANIEL J. MELTZER, & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 494-95 (5th ed. 2003) (quoting the first edition);
165. see also Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 495-98 (1954).
166. See, e.g., FALLON ET AL., supra note 145, at 495 ("In the fifty years since the First Edition was published, the expansion of federal legislation and administrative regulation . . . has accelerated . . . .").
167. 5 U.S.C. § 701(a)(2) (2006).
168. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (citing S. REP. NO. 79-752, at 26 (1945)).
169. See Webster v. Doe, 486 U.S. 592, 601 (1988) (holding, in the case of a Central Intelligence Agency employee who was fired because of his sexual orientation, that there was no law to apply under the Administrative Procedure Act but the plaintiff's constitutional claims were reviewable).
170. See Young, Making Federalism Doctrine, supra note 48, at 1762-99.
171. See, e.g., Younger v. Harris, 401 U.S. 37, 43-54 (1971) (developing a doctrine of equitable abstention to protect the autonomy of state judicial proceedings from federal interference); Young, Making Federalism Doctrine, supra note 48, at 1775-83 (discussing the need for and historical extent of extraconstitutional innovation to protect the federal balance).
172. See Young, Outside the Constitution, supra note 61, at 429-36 (discussing the roles of statutes and regulations in defining the federal balance).
173. See Young, Making Federalism Doctrine, supra note 48, at 1771-75 (suggesting that courts may well have a constitutional obligation to formulate federalism-protective doctrines to compensate for the enumerated powers doctrine's failure to constrain national authority).
174. Compare WILLIAM A. NISKANEN JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT 114 (1971) (arguing that agency officials will expand their budgets and power because "the coterminous relation of a bureaucrat's rewards and his position implies that a bureaucrat will maximize the total budget of his bureau"),
175. with Daryl J. Levinson, Empire-Building in Constitutional Law, 118 HARV. L. REV. 915, 932 (2005) (disagreeing with the agency "empire-building hypothesis," and stating that "[e]ven if most bureaucrats were primarily interested in lining their own pockets, the relationship between a larger agency budget and higher salaries or cushier working conditions is empirically tenuous");
176. see also Stuart Minor Benjamin & Arti K. Rai, Fixing Innovation Policy: A Structural Perspective, 77 GEO. WASH. L. REV. (forthcoming Nov. 2008) (manuscript at 41-44) (discussing this debate).
177. Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461 (2004).
178. See id. at 517-18 (Kennedy, J., dissenting).
179. Gonzales v. Oregon, 126 S. Ct. 904 (2006).
180. See id. at 911 (acknowledging the "earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide" (quoting Washington v. Glucksberg, 521 U.S. 702, 735 (1997))).
181. Three Justices dissented, after all. See id. at 926 (Scalia, J., joined by Roberts, C.J., & Thomas, J., dissenting).
182. Massachusetts v. EPA, 127 S. Ct. 1438 (2007).
183. See id. at 1454-55 (discussing Massachusetts's "special position" as a litigant rather than a regulator for standing purposes).
184. See Gonzales v. Raich, 125 S. Ct. 2195 (2005) (interpreting the Commerce Clause broadly to permit federal regulation of homegrown marijuana use, thereby nullifying California's medical marijuana).
185. See Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1573 (2007) (holding that the National Banking Act leaves little room for state regulation of the "business of banking").