How courts can protect state autonomy from federal administrative encroachment

Southern California Law Review

Volumn 82, Issue 1, 2008, Pages 45-95

  Keller, Scott A ^a  

^a United States Department of Justice   (United States)

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EID: 59149101046     PISSN: 00383910     EISSN: None     Source Type: Journal    
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References (299)

1. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (placing substantive limits on congressional power under the Commerce Clause); Printz v. United States, 521 U.S. 898 (1997) (holding that Congress unconstitutionally commandeered state officers); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (holding that Congress could not abrogate states' sovereign immunity under the Indian Commerce Clause); United States v. Lopez, 514 U.S. 549 (1995) (restricting Congress's power under the Commerce Clause); New York. v. United States, 505 U.S. 144 (1992) (holding that Congress unconstitutionally commandeered a state legislature).
2. See also Andrew M. Siegel, The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court's Jurisprudence, 84 TEX. L. REV. 1097, 1099 n. 1 (2006) (collecting articles discussing the Rehnquist Court's federalist revolution).
3. Gonzales v. Raich, 545 U.S. 1 (2005).
4. Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 160-61 (2001) (Breyer, J., dissenting) (citations omitted).
5. Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008);
6. Rowe v. N.H. Motor Transp. Ass'n, 128 S. Ct. 989 (2008).
7. Good v. Altria Group, Inc., 501 F. 3d 29 (1st Cir. 2007), cert, granted, 128 S. Ct. 1119 (2008);
8. Levine v. Wyeth, 944 A. 2d 179 (Vt. 2006), cert. granted, 128 S. Ct. 1118 (2008).
9. INS v. Chadha, 462 U.S. 919, 985-86 (1983) (White, J., dissenting).
10. See, e.g., Raich, 545 U.S. at 35 (Scalia, J., concurring) ("Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.").
11. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001) (holding that the nondelegation doctrine only requires Congress to provide agencies with an intelligible principle, and that such intelligible principles require very little specificity).
12. Touby v. United States, 500 U.S.I 60, 165 (1991).
13. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).
14. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484, 1493 (1987) (book review).
15. Gonzales v. Oregon, 546 U.S. 243 (2006).
16. Id. at 248-49.
17. Id. at 253-54.
18. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985), superseded by statute, Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, § 1003, 100 Stat. 1807, 1845, as recognized in Lane v. Pena, 518 U.S. 187, 197-98 (1996) ("Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.").
19. The phrase "Chevron Step Zero" was originally coined in Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 836 (2001), and then solidified in Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187 (2006) [hereinafter Sunstein, Chevron Step Zero].
20. United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).
21. See infra Part V.A.
22. See Gonzales v. Oregon, 546 U.S. at 268 ("[T]he CSA does not give the Attorney General authority to issue the Interpretive Rule as a statement with the force of law." (emphasis added)).
23. See also infra notes 96-99 and accompanying text.
24. See infra Part V.B.
25. There has been little commentary on the intersection of Chevron Step Zero and clearstatement canons. Jacob Gersen has focused on Gonzales v. Oregon and Chevron Step Zero through the lens of presumptions based upon "overlapping and underlapping jurisdiction." Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 SUP. CT REV. 201. Nina Mendelson explored how clear-statement canons intersect with Chevron Steps One and Two, but not Chevron Step Zero. See generally Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737 (2004) (arguing that federalism values can be protected through political processes and advocating for a functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency). Relatedly, Peter Smith has addressed clearstatement canons and Chevron deference. See Peter J. Smith, Essay, Pennhurst, Chevron, and the Spending Power, 110 YALE L.J. 1187, 1201 (2001). Cass Sunstein has briefly addressed clear-statement canons of statutory construction (what he calls "nondelegation canons") as an alternative to Chevron Step Zero. See Sunstein, Chevron Step Zero, supra note 16, at 244-47.
26. See also Cass R. Sunstein, Essay, Beyond Marbury; The Executive's Power to Say What the Law Is, 115 YALE L.J. 2580, 2607-10 (2006) [hereinafter Sunstein, Beyond Marbury] (discussing the clear-statement canon as a limit on the executive's interpretive discretion). But he only examined them under the rubric of the nondelegation doctrine-not in relation to federalism concerns. He briefly raised three objections to such clear-statement canons: (1) "the uncertain foundations of the argument for the nondelegation doctrine itself; (2) "the difficulty of administering the line that the principle would require courts to maintain"; and (3) clear-statement canons would not account for agency "expertise and accountability." Sunstein, Chevron Step Zero, supra note 16, at 245-46. As this Article shows, however, there are sound counterarguments to all three of these objections. First, seeing that substantive limits on congressional power-in addition to the nondelegation doctrine-are underenforced supports the use of clear-statement canons premised on federalism. See infra Part II.A-B. Second, while the difficulty in creating a test for what triggers a clear-statement canon may be the strongest objection to the use of such a canon, there are countervailing reasons supporting a clear-statement canon based on federalism concerns. See infra notes 217-27 and accompanying text. Third, even if agencies have expertise and accountability, giving them a great degree of institutional competence in some situations, it is not clear that they possess such institutional competence in making decisions impacting the federal-state balance. See infra note 55.
27. For a discussion of clear-statement canons of statutory construction, including their background and current application, see infra Part VI.
28. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001) ("Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions-it does not, one might say, hide elephants in mouseholes."); Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172-73 (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. This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority." (citation omitted));
29. DFA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) ("Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.");
30. MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 231 (1994) ("It is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion...."); Gregory v. Ashcroft, 501 U.S. 452, 460, 464 (1991) (creating a clear-statement canon when the law at issue would "upset the usual constitutional balance of federal and state powers"); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985), superseded by statute, Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, § 1003, 100 Stat. 1807, 1845, as recognized in Lane v. Pena, 518 U.S. 187, 197-98 (1996) ("Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute."); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) ("Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously."); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (articulating the "assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress").
31. See Gonzales v. Oregon, 546 U.S. at 274 ("It is unnecessary even to consider the application of clear-statement requirements, or presumptions against pre-emption, to reach this commonsense conclusion." (citations omitted)).
32. Gregory, 501 U.S. at 460-61 (articulating a "plain statement rule" that "acknowledge[s] that the States retain substantial sovereign powers under our constitutional scheme," such that "[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., 473 U.S. at 242)).
33. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
34. See, e.g., Rapanos v. United States, 547 U.S. 715, 738 (2006) (plurality opinion) ("We ordinarily expect a 'clear and manifest' statement from Congress to authorize an unprecedented intrusion into traditional state authority."); Gonzales v. Oregon, 546 U.S. at 274 ("Just as the conventions of expression indicate that Congress is unlikely to alter a statute's obvious scope and division of authority through muffled hints, the background principles of our federal system also belie the notion that Congress would use such an obscure grant of authority to regulate areas traditionally supervised by the States' police power."); Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 544 (2002) ("[A]llowing federal law to extend the time period in which a state sovereign is amenable to suit in its own courts at least affects the federal balance in an area that has been a historic power of the States...."); SWANCC, 531 U.S. at 173 ("This concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power."); BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994) ("To displace traditional state regulation in such a manner, the federal statutory purpose must be 'clear and manifest.'"); Gregory, 501 U.S. at 460 ("Congress may legislate in areas traditionally regulated by the States.... It is a power that we must assume Congress does not exercise lightly."); Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 643 (1986) ("The need for a proper evidentiary basis for agency action is especially acute in this case because Congress has failed to indicate... that it envisioned federal superintendence of treatment decisions traditionally entrusted to state governance."); Heublein, Inc. v. S.C. Tax Comm'n, 409 U.S. 275, 281 (1972) ("Congress, then, did not address...the problem of taxing a business when it undertook local activities simply in order to comply with the requirements of a valid regulatory scheme. Such regulation is an important function of local governments in our federal scheme."); 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.").
35. See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1213-28 (1978) (stipulating that courts underenforce constitutional norms because of institutional concerns).
36. See also Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 126 (2004) ("[A]s Larry Sager has demonstrated, the fact that a norm is 'under-enforced'-that is, enforced through something short of a strong invalidation norm-does not mean the norm lacks grounding in the Constitution.").
37. Gonzales v. Raich, 545 U.S. 1 (2005) (upholding the federal criminalization of medicinal marijuana).
38. See generally United States v. Morrison, 529 U.S. 598 (2000) (placing substantive limits on congressional power under the Commerce Clause); United States v. Lopez, 514 U.S. 549 (1995) (same).
39. Gonzales v. Oregon, 546 U.S. at 301 (Thomas, J., dissenting).
40. The phrase "political safeguards of federalism" was originally coined in Herbert Wechsler's influential 1954 article. 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) (arguing that courts should generally be weary of intervening when Congress overrides the states because the constitutional structure, which gives states the power to influence representation in Congress, already protects state autonomy from congressional overreaching, and that Congress only overrides the states when there is a strong need for a national approach to a particular problem).
41. See, e.g., Morrison, 529 U.S. at 660 (Breyer, J., dissenting) ("[W]ithin the bounds of the rational, Congress, not the courts, must remain primarily responsible for striking the appropriate state/federal balance."). But see Raich, 545 U.S. at 35 (Scalia, J., concurring) (arguing, without invoking the political safeguards of federalism, that Congress's authority to federally criminalize medicinal marijuana under the Commerce Clause was based on the Necessary and Proper Clause).
42. Saikrishna Prakash and John Yoo attribute a stronger position to this view-that "federal courts are not to exercise review over questions that involve the balance of power between the federal government and the states." Saikrishna B. Prakash & John C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459, 1460 (2001). Some commentators do take the view that the Court should not impose substantive limits on congressional power. See, e.g., Thomas W. Merrill, Rescuing Federalism After Raich; The Case for Clear Statement Rules, 9 LEWIS & CLARK L. REV. 823, 826 (2005) ("In order to rescue federalism after Raich, the Court should return to the clear statement strategy for determining the scope of congressional power it began to articulate in the 1980s and early 1990s. The clear statement strategy prescribes a much more constructive and workable role for the courts in determining the balance between stability and change in the assignment of powers between the federal government and the States. Moreover, under a clear statement approach, Raich would have been an easy case for upholding federal power." (citation omitted) (emphasis added)). Others, however, take the position that while substantive limits on congressional power would be preferable, procedural limits based on the political safeguards of federalism are at least a second-best alternative. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 464 (1991) (opting for a clear-statement rule in light of the Court's unwillingness to provide substantive limits on Congress's Commerce Clause power); Young, supra note 28, at 127 (recognizing that "sometimes courts should employ categorical restrictions on government practices that undermine the 'political safeguards of federalism,'" while simultaneously defending the use of clear-statement procedural limits). Likewise, even Wechsler himself admitted that there should be some substantive limits on Congress. See Prakash & Yoo, supra, at 1461 ("[Wechsler] fleetingly suggested that judicial review of the scope of federal power might still remain appropriate, but only if done gingerly and reluctantly."); Young, supra note 28, at 71 ("Wechsler seemed to insist that the limits on federal power in the Constitution itself, such as the doctrine of enumerated powers, remain supreme law that courts must enforce.").
43. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554 (1985) ("Any substantive restraint on the exercise of Commerce Clause powers must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible failings in the national political process rather than to dictate a 'sacred province of state autonomy.'" (quoting EEOC v. Wyoming, 460 U.S. 226, 236 (1983))).
44. Id. at 567 n. 12 (Powell, J., dissenting).
45. Id. at 565 n. 9.
46. Analogously, an analysis that separates constitutional meaning from constitutional doctrine could justify procedural limits on congressional power that are triggered beyond the substantive limits of Congress's enumerated powers. See generally Mitchell N. Berman, Constitutional Decision Rules, 90 VA. L. REV. 1, 51 (2004) ("[T]his Part introduces a conceptual distinction between constitutional operative propositions (essentially, judge-interpreted constitutional meaning) and constitutional decision rules (rules that direct courts how to decide whether a given operative proposition has been, or will be, complied with)."). Basically, the meaning/doctrine distinction provides that the Court first interprets a meaning for a constitutional provision, and then creates a doctrine or rule for enforcing that meaning. The Court's meaning of Congress's enumerated powers may be something like Congress cannot regulate "areas of traditional state regulation." Morrison, 529 U.S. at 615-16 (expressing concern that petitioner's reasoning would result in no limits on Congress's ability to regulate "areas of traditional state regulation"). The Court's doctrine is underenforcing this meaning, largely because the Court cannot or will not create a workable test (that is, a doctrine) for the Commerce Clause. See id. at 642-43 (Souter, J., dissenting) (explaining that prior Commerce Clause limits were unworkable because "adherence to these formalistically contrived confines of commerce power in large measure provoked the judicial crisis of 1937"). In fact, the Court's doctrine may be purposely underenforcing the meaning of the Commerce Clause to give Congress adequate powers to regulate the modern economy. See United States v. Lopez, 514 U.S. 549, 574 (1995) (Kennedy, J., concurring) (arguing that this "fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th-century economy" and "also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system"). Interestingly, even Justice Breyer noted that the Morrison Court's Commerce Clause test was underenforcing insofar as it did not account for all areas of traditional state regulation. Morrison, 529 U.S. at 658 (Breyer, J., dissenting) ("Most importantly, the Court's complex rules seem unlikely to help secure the very object that they seek, namely, the protection of 'areas of traditional state regulation' from federal intrusion. The Court's rules, even if broadly interpreted, are underinclusive." (citation omitted)). Thus, the Court's interpretation of what the Commerce Clause actually means-as opposed to the Commerce Clause doctrines that it has adopted-could justify procedural limits based on this meaning as a second-best doctrine. Cf. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 384 (2001) (Breyer, J., dissenting) (recognizing that constitutional doctrine may be influenced by "a court's institutional limitations").
47. See Merrill, supra note 34, at 825 ("Looking back, we can see that the Rehnquist Court's campaign to define a new role for courts in federalism controversies falls into roughly two periods. The first period, which predated the beginning of the Rehnquist Court by a few years and ran into the mid - 1990's, was characterized by an effort to prescribe clear statement rules in federalism controversies."). It was not until the later years of the Rehnquist Court that it began implementing substantive limits on congressional power. Id. ("The second period, which ran from the mid-1990s to the waning days of the Rehnquist Court, saw a shift from the articulation of clear statement rules to the imposition of prohibitory limitations on the powers of Congress."). In Gonzales v. Raich, 545 U.S. 1 (2005), however, the Court refused to place additional limits on Congress's Commerce Clause power-possibly marking an end to Chief Justice Rehnquist's federalist revolution. See Ernest A. Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival After Gonzales v. Raich, 2005 SUP. CT. REV. 1, 39-40 ("Raich most likely marks the outer bound of the Court's ambition in Commerce Clause cases. Apocalyptic predictions notwithstanding, many of us have long argued that the Court's Commerce Clause jurisprudence was primarily symbolic in its importance and unlikely to go far. A rollback of the national regulatory state was never in the cards; there are simply too many precedential, institutional, and political constraints pressing the Court to uphold relatively broad federal power. Raich may indicate that even minor incursions on the federal edifice are unlikely, and that except in cases where to uphold the federal act would remove any limit whatsoever, the Court will condone national action." (citations omitted)).
48. See Gregory v. Ashcroft, 501 U.S. 452, 464 (1991) ("'[T]o give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states' interests.'" (quoting LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 480 (2d ed. 1988))); Young, supra note 28, at 121 (explaining that clearstatement canons "enhance states' political representation in Congress by providing notice when federalism values are threatened").
49. See also Young, supra note 28, at 126 ("[Clear statement canons] likewise function well in areas in which the relevant constitutional principles are designed primarily to be self-enforcing, through the political processes at work in the coordinate branches of government. Certain kinds of soft limits-particularly clear statement canons of statutory construction-function effectively by increasing the political costs of particular kinds of government action. Requiring Congress to state its purpose with special clarity both imposes an additional drafting hurdle and may serve to mobilize opposition by highlighting the proposed intrusion on state authority.").
50. Gregory, 501 U.S. at 460-61.
51. See id. at 464 (opting for a clear-statement rule in light of the Court's unwillingness to provide substantive limits on Congress's Commerce Clause power).
52. Barry Friedman, Valuing Federalism, 82 MINN L. REV. 317, 364 (1997).
53. See United States v. Lopez, 514 U.S. 549, 574 (1995) (Kennedy, J., concurring) ("That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th-century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.").
54. See United States v. Morrison, 529 U.S. 598, 639-40 (2000) (Souter, J., dissenting) (observing that the history of the Commerce Clause "has shown that categorical exclusions have proven as unworkable in practice as they are unsupportable in theory"); Lopez, 514 U.S. at 574 (Kennedy, J., concurring) ("The history of our Commerce Clause decisions contains at least two lessons of relevance to this case. The first, as stated at the outset, is the imprecision of content-based boundaries used without more to define the limits of the Commerce Clause.").
55. See Sager, supra note 28, at 1217-18.
56. Id.
57. See Ilya Somin, A False Dawn for Federalism: Clear Statement Rules After Gonzales v. Raich, in CATO SUPREME COURT REVIEW: 2005-2006, at 113, 134 (Mark K. Moller ed., 2006) ("To be sure, the avoidance canon might be resuscitated if federalism is viewed as an 'underenforced constitutional norm.'"); Young, supra note 28, at 101 (arguing that courts should be permitted "to impose some restraint in areas where constitutional norms would otherwise be 'underenforced'").
58. See also Young, supra note 28, at 126 ("We should also forthrightly acknowledge that these clear-statement doctrines are constitutional in nature; as Larry Sager has demonstrated, the fact that a norm is 'underenforced'-that is, enforced through something short of a strong invalidation norm-does not mean the norm lacks grounding in the Constitution.").
59. See, e.g., Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892) ("That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.").
60. But see Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 486-87 (2001) (Thomas, J., concurring) (stating that Justice Thomas would be "willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers").
61. See Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting) ("[W]hile the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system, it is not an element readily enforceable by the courts.").
62. See also Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 338 (2000) [hereinafter Sunstein, Nondelegation Canons] ("The difficulty of drawing lines between prohibited and permitted delegations makes it reasonable to conclude that for the most part, the ban on unacceptable delegations is a judicially underenforced norm, and properly so." (citing Sager, supra note 28, at 1213-28)).
63. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1374 (2001).
64. See supra note 44 and accompanying text.
65. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407-408 (1928).
66. See Jonathan R. Macey, Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory, 74 VA. L. REV. 471, 517 (1988) ("[L]egislators who want to avoid controversial or indeterminate decisions as to which interest groups to favor can forfeit vast amounts of discretion (and thus responsibility and accountability) to administrative agencies, which function outside of the tripartite legislative process envisioned by our constitutional structure."); Young, supra note 28, at 75 ("Even if we concede that Congress represents the states, Congress no longer makes most federal law. Federal administrative agencies now produce the bulk of federal law, and they lack any particular mechanisms for representing State interests."). In response, Nina Mendelson has argued that federal administrative agencies can account for state interests as good as-if not better than-Congress can. Thus, a procedural limit on agencies would not serve the function of providing the optimum federal-state balance. According to Mendelson, the fact that "members of Congress are elected in regional or state-based elections" does not give Congress any "special advantage with respect to a number of important federalism values, and may result in Congress undervaluing these interests relative to the agencies." Mendelson, supra note 21, at 766-67. And agencies are accountable to both congressional and presidential oversight. Id. at 769. But even Mendelson noted that the "relative institutional competence of agencies in considering federalism values weighs against deferring to agency interpretations on preemption questions." Id. at 779. In other words, while agencies can sometimes take state interests into account-on questions invoking the federalism balance (whether in preemption cases or not)-the institutional competence of agencies proves that they do not have the most expertise and knowledge in setting the proper federalism balance. Brian Galle and Mark Seidenfeld have similarly argued that in some cases, "the agency is a better arena for state influence than Congress alone." Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. 1933, 1985 (2008). This argument is largely premised on the fact that agencies can operate with more transparency and deliberation, id. at 1954-61, 1971-79, and the fact that "elections are fraught with imperfections that potentially interfere even with basic accountability," id. at 1979. Assuming, arguendo, that both observations are true, they seem to be decent policy arguments for electoral reforms or for changing certain congressional procedures. But it does not follow that federal agencies should have the power to alter the federal-state balance simply because of perceived flaws in the federal legislative process-especially when this very legislative process created federal agencies in the first place.
67. Watters v. Wachovia Bank, N.A., 550 U.S. 1, 21 (2007) (Stevens, J., dissenting) (quoting Geier v. Am. Honda Motor Co., 529 U.S. 861, 908 (2000) (Stevens, J., dissenting)).
68. See also Geier, 529 U.S. at 907 ("The signal virtues of this presumption are its placement of the power of pre-emption squarely in the hands of Congress, which is far more suited than the Judiciary to strike the appropriate state/federal balance (particularly in areas of traditional state regulation), and its requirement that Congress speak clearly when exercising that power. In this way, the structural safeguards inherent in the normal operation of the legislative process operate to defend state interests from undue infringement." (citing Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 552 (1985))).
69. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 131-32 (1980).
70. See also id. ("As Congressman Levitas put it, 'When hard decisions have to be made, we pass the buck to the agencies with vaguely worded statutes.'" (quoting 122 CONG. REC. H10, 685 (daily ed. Sept. 21, 1976) (statement of Rep. Levitas))).
71. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2112 (1990) [hereinafter Sunstein, After Chevron]. In fact, Cass Sunstein eventually began referring to clearstatement canons applied to administrative interpretations as "nondelegation canons." Sunstein, Nondelegation Canons, supra note 51, at 316.
72. Sunstein, Beyond Marbury, supra note 21, at 2585.
73. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (highlighting the importance of "all those factors which give [the agency] power to persuade").
74. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).
75. Id. at 843.
76. Id.
77. Id. at 844 (emphasis added).
78. Id. at 865.
79. Id.
80. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 370-71 (1986);
81. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 517.
82. Scalia, supra note 67, at 516. As this Article shows, federalism can be protected from federal administrative encroachment without tinkering with Chevron's simple rule. In other words, clearstatement canons can address the underenforcement of federalism and the nondelegation doctrine directly, while leaving the "across-the-board presumption" of Chevron deference intact. Chevron Step Zero, though, necessarily complicates Chevron's simple rule. See infra Part V.A.
83. Sunstein, Nondelegation Canons, supra note 51, at 329.
84. See supra notes 51-53 and accompanying text.
85. See, e.g., New York v. United States, 505 U.S. 144, 157 (1992) (requiring the enforcement of federalism "even if one could prove that federalism secured no advantages to anyone"); Ernest A. Young, Making Federalism Doctrine: Fidelity. Institutional Competence, and Compensating Adjustments, 46 WM. & MARY L. REV. 1733, 1844 (2005) ("[F]delity to the Constitution requires enforcement of federalism whether or not we think it is good, useful, or otherwise normatively attractive.").
86. Friedman, supra note 43, at 325, 386. As Friedman notes, "the constitutional plan does not seem to require the question be answered, or even to be asked at all." Id. at 405. Friedman's normative argument assumes that the mere descriptive argument of the underenforcement of federalism would not suffice to justify enforcing federalism.
87. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 458 (1991);
88. Friedman, supra note 43, at 394-97;
89. McConnell, supra note 11, at 1509-10.
90. See, e.g., Gregory, 501 U.S. at 458;
91. Friedman, supra note 43, at 394-95;
92. McConnell, supra note 11, at 1493-94.
93. See, e.g., Gregory, 501 U.S. at 458;
94. Friedman, supra note 43, at 397-400;
95. McConnell, supra note 11, at 1498-1500.
96. See, e.g., Gregory, 501 U.S. at 458;
97. Friedman, supra note 43, at 389-94;
98. McConnell, supra note 11, at 1510.
99. See, e.g., Gregory, 501 U.S. at 458-59;
100. Friedman, supra note 43, at 402-04;
101. McConnell, supra note 11, at 1500-07.
102. McConnell, supra note 11, at 1509.
103. Id. at 1493.
104. Gregory, 501 U.S. at 458.
105. McConnell, supra note 11, at 1510.
106. Friedman, supra note 43, at 403. The Ashcroft Directive in Gonzales v. Oregon is a perfect example of this. See infra Part IV.
107. Friedman, supra note 43, at 405-09.
108. See McConnell, supra note 11, at 1495 ("Externalities present the principal countervailing consideration in favor of centralized government....").
109. Friedman, supra note 43, at 407. Examples of this are environmental protection and federal spending. See id. ("A common example here is environmental protection."); McConnell, supra note 11, at 1496 ("Familiar examples are environmental laws...."); McConnell, supra note 11, at 1496 ("But the effect is especially obvious in the case of federal spending. If the national treasury is seen as a common pool resource for financing schemes of predominantly local benefit, it will be oversubscribed. Current budgetary woes are largely attributable to this fiscal 'tragedy of the commons.'").
110. McConnell, supra note 11, at 1495. This situation involves "public goods"-goods "that would not be provided if it were not for the existence of some central authority to fund them" because of the free-rider problem. Friedman, supra note 43, at 406-07. The most prominent example of a public good is the national military. See id:, McConnell, supra note 11, at 1495.
111. Friedman, supra note 43, at 408.
112. Id.
113. Id. a 408-09.
114. See Somin, supra note 48, at 139 ("Even if clear statement rules are an inadequate substitute for substantive judicial review, they could still serve a useful function by giving Congress an incentive to draft clearer and less ambiguous laws. And it is certainly possible that they do restrict the growth of federal power slightly. These benefits might be sufficient to justify the continued use of federalism clear statement rules. Even if such rules have relatively few benefits, they also do not seem to impose significant costs.").
115. In other words, under procedural federalism limits, the states would not "possess prescribed areas of jurisdiction that cannot be invaded by the central authority." Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 911 (1994).
116. Gonzales v. Oregon, 546 U.S. 243, 248-49 (2006).
117. Id. at 250 (citing 21 C.F.R. § 1306.04(a) (2005)).
118. Id. at 261 (citing 21 U.S.C. § 823(f) (2006)).
119. See id. at 253-54.
120. The majority opinion written by Justice Kennedy was joined by Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer. Id. at 247. Justice Scalia's dissenting opinion was joined by Chief Justice Roberts and Justice
121. The procedural limit used in Gonzales v. Oregon is called Chevron Step Zero. See infra Part V.
122. See The Supreme Court, 2005 Term-Leading Cases, 120 HARV. L. REV. 361, 362 (2006).
123. Gonzales v. Oregon, 546 U.S. at 275 (emphasis added).
124. Id. at 274 (emphasis added).
125. Id. at 270 (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996)) (emphasis added).
126. Id. at 275 (emphasis added).
127. Id. at 271 (quoting Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 719 (1985)) (emphasis added).
128. Id. at 272 (emphasis added).
129. Id. at 274 (emphasis added).
130. Id. (emphasis added).
131. Id. at 270 (emphasis added).
132. For quite some time, Chevron was largely viewed as only having two steps. See supra Part II.C. But even Chevron itself recognized some threshold question to reaching the Chevron inquiry. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984) (explaining that the Chevron two-step inquiry would follow from an "agency's construction of the statute which it administers").
133. See also Sunstein, Chevron Step Zero, supra note 16, at 208 (explaining that no one believes Chevron deference should be given "[w]henever an agency makes an interpretation of law"). Even more generally, if the case does not involve an administrative interpretation, then Chevron will not apply. While obvious, this would be a threshold question to applying the Chevron framework.
134. See Gonzales v. Oregon, 546 U.S. at 255-56 (according Chevron deference '"when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law'" (quoting United States v. Mead Corp., 533 U.S. 218, 226-27 (2001))). The phrase "force of law" was the linguistic hook from precedent that the Court used to create Chevron Step Zero, but it is unclear whether this phrase is simply the label signifying that Chevron Step Zero is being used or whether it adds another factor to the Chevron Step Zero inquiry.
135. Id. at 256; Mead, 533 U.S. at 221; Christensen v. Harris County, 529 U.S. 576, 587 (2000).
136. See supra Part II.C.
137. See supra Parts II.A-B.
138. Christensen, 529 U.S. 576.
139. Mead, 533 U.S. 218.
140. Barnhart v. Walton, 535 U.S. 212 (2002).
141. Cass Sunstein labeled these cases the "Step Zero Trilogy." Sunstein, Chevron Step Zero, supra note 16, at 211.
142. Justice Breyer argued that this first substep, which analyzes the interpretation's format, should not be a separate substep; rather, the format should simply be analyzed under the agency deliberation factor in Chevron Step Zero's second substep (the balancing test). See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1004 (2005) (Breyer, J., concurring) ("Congress may have intended not to leave the matter of a particular interpretation up to the agency, irrespective of the procedure the agency uses to arrive at that interpretation, say, where an unusually basic legal question is at issue."). But as Justice Scalia noted, the Court has not adopted this position. Id. at 1015 n. 9 (Scalia, J., dissenting).
143. 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.... Thus, the overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication.").
144. See Christensen v. Harris County, 529 U.S. 576, 587-88 (2000) (explaining that Chevron deference is warranted for "an agency interpretation contained in a regulation," but not for "opinion letters[,] policy statements, agency manuals, and enforcement guidelines").
145. Mead, 533 U.S. at 226-27 (emphasis added).
146. See also Christensen, 529 U.S. at 587 ("Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference." (emphasis added)).
147. The development of the Chevron Step Zero factors has been quite erratic. Christensen, Mead, and Barnhart each seem to contemplate three distinct Chevron Step Zero tests. The Christensen Chevron Step Zero test turned on the interpretation's format (using formal procedures probably produced acceptable formats for Chevron deference). See Christensen, 529 U.S. at 587 ("[Interpretations contained in formats such as opinion letters are 'entitled to respect' under our decision in Skidmore v. Swift & Co....." (emphasis added));
148. id. ("Here, however, we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking."). But even if Chevron deference were not accorded due to the format of the interpretation, the interpretation could still receive Skidmore deference. Id. Mead, though, replaced the rule-like Chevron Step Zero test based on format with the indeterminate force-of-law test based on the binding character of the interpretation. Mead, 533 U.S. at 226-27.
149. As Sunstein has shown, "The Court has not explained what it means by the 'force of law.'" Sunstein, Chevron Step Zero, supra note 16, at 222. Worse yet, this force-of-law test came from Christensen's dicta, which only used the language "lack the force of law" once in a hyphenated clause. See Christensen, 529 U.S. at 587.
150. Then, Barnhart ignored the Mead force-of-law test and its open-ended factors, instead looking at factors such as the interstitial nature and importance of the legal question. See Barnhart v. Walton, 535 U.S. 212, 221-22 (2002).
151. Thus, even though these three decisions were only two years apart, Barnhart drastically diverged from the origin of the Court's Chevron Step Zero doctrine in Christensen's dicta. Most notably, Barnhart never cited the Christensen force-of-law or format language that opened the door to a complex Chevron Step Zero doctrine in the first place.
152. See Mead, 533 U.S. at 237 (explaining that unlike the majority's Chevron Step Zero test, Justice Scalia's Chevron threshold question did not account for the "breadth of delegation").
153. See also Gonzales v. Oregon, 546 U.S. 243, 258 (2006) ("The starting point for this inquiry is, of course, the language of the delegation provision itself.").
154. See Barnhart, 535 U.S. at 222 (according Chevron deference given "the related expertise of the Agency"); Mead, 533 U.S. at 228 (listing "relative expertness" as a Chevron Step Zero factor). Factors relating to how technical or complex the case is probably fall under the agency expertise factor. Cf. Barnhart, 535 U.S. at 222 (according Chevron deference given the "complexity" of the administration of the statute).
155. See also Christensen, 529 U.S. at 597 (Breyer, J., dissenting) (explaining that Chevron deference should have been accorded in this "rather technical case").
156. Mead, 533 U.S. at 228 (listing "consistency" as a Chevron Step Zero factor).
157. Id. (listing "degree of the agency's care" as a Chevron Step Zero factor). See Barnhart, 535 U.S. at 222 (according Chevron deference because of the "careful consideration" of the agency). The format of the interpretation (the first substep) could also be accounted for here, as format is an easily identifiable proxy for agency deliberation. After all, an agency is required to go through certain procedures in order to promulgate an interpretation in the format of a regulation. See Christensen, 529 U.S. at 590 (Scalia, J., concurring in part).
158. See Barnhart, 535 U.S. at 222 (explaining that "whether a court should give such deference depends in significant part upon... the nature of the question at issue," and according Chevron deference because of "the interstitial nature of the legal question").
159. See also Gonzales v. Oregon, 546 U.S. at 267-68 (rejecting Chevron deference because of the "importance of the issue").
160. Skidmore's persuasiveness standard for deference may be no deference at all. See Christopher M. Pietruszkiewicz, Discarded Deference: Judicial Independence in Informal Agency Guidance, 74 TENN. L. REV. 1, 8-9 (2006) (calling Skidmore "deference in name but not in practice" because the "power to persuade ... is exactly what every litigant attempts to accomplish").
161. The Skidmore persuasiveness inquiry may actually be an additional Chevron Step Zero factor, because the Barnhart Chevron Step Zero factors are nearly identical to the factors articulated in Skidmore for determining whether an agency interpretation has the power to persuade. Compare Barnhart, 535 U.S. at 222, with Mead, 533 U.S. at 228 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Of course, this would mean that Barnhart essentially transplanted the Skidmore deference test to Chevron Step Zero-without ever citing Skidmore. After Barnhart, if the interpretation fails the Chevron Step Zero test, it is hard to imagine how the interpretation would then somehow be accorded deference under Skidmore. Thus, Justice Scalia is probably correct in arguing that this sleight of hand allows the Court to "resurrect", in full force, the pre - Chevron doctrine of Skidmore deference" without having to explicitly overrule Chevron. Mead, 533 U.S. at 241 (Scalia, J., dissenting). Even worse, if Skidmore deference will rarely be accorded, then a persuasiveness analysis at Chevron Step Zero will produce even less deference than Skidmore. After all, Chevron Step Zero examines both the breadth of the statutory delegation and the nature of the question, whereas Skidmore purportedly does not look at these factors. See Skidmore, 323 U.S. at 139-40. That said, the Court in Gonzales v. Oregon analyzed both of these factors under its Skidmore inquiry; of course, the Court had already examined these factors at Chevron Step Zero. See Gonzales v. Oregon, 546 U.S. at 257, 266-69 (recognizing, during its Chevron Step Zero inquiry, that the statutory delegation was limited and the question was not interstitial); id. at 269-71 (recognizing these same factors during its Skidmore inquiry).
162. At first glance, Gonzales v. Oregon does not appear to be a Chevron Step Zero case. If anything, the Gonzales v. Oregon majority tried to hide the fact that it was invoking Chevron Step Zero; the majority used the force-of-law label many times but only cited Mead three times. Gonzales v. Oregon, 546 U.S. at 256, 258, 268. Rather, given the majority's and the dissent's emphases on parsing the congressional delegation contained in the CSA, it could appear that Gonzales v. Oregon is actually a Chevron Step One case. The majority admits, however, that the delegation at issue is ambiguous (Chevron Step One). See id. at 258 ("All would agree, we should think, that the statutory phrase 'legitimate medical purpose' is a generality, susceptible to more precise definition and open to varying constructions, and thus ambiguous in the relevant sense. Chevron deference, however, is not accorded merely because the statute is ambiguous and an administrative official is involved. To begin with, the rule must be promulgated pursuant to authority Congress has delegated to the official." (citing Mead, 533 U.S. at 226-27) (emphasis added)). The majority also agrees that the administrative interpretation is reasonable (Chevron Step Two). Id. at 272 (recognizing that the administrative interpretation at issue "is at least reasonable"). Thus, if the Gonzales v. Oregon majority reached the Chevron inquiry, it would be forced to accord deference to the Ashcroft Directive. See id.
163. Gonzales v. Oregon, 546 U.S. at 268. First, the majority began its discussion of Chevron deference with several pages of textual analysis of the CSA addressing the breadth of the statutory delegation factor. Id. at 258-66. Second, the majority noted that the Attorney General "lacks medical expertise." Id. at 266. Third, the Court noted that the Ashcroft Directive was a direct departure from Attorney General Janet Reno's previous interpretation of the CSA. Id. at 253-54.
164. Fourth, the Court highlighted that the Attorney General's deliberation was lacking because he only consulted an Office of Legal Counsel memo instead of consulting others outside the Department of Justice. Id. at 267. Fifth, the majority provided two paragraphs implicating the major question factor. Id. at 267-68.
165. See supra notes 100-07 and accompanying text.
166. See Gonzales v. Oregon, 546 U.S. at 268-74 (denying Skidmore deference because of federalism concerns).
167. The prime example of this consequence would be the position taken by the four dissenting Justices (who were all in the majority of Gonzales v. Oregon) in Rapanos v. United States, another case decided in 2006. The four dissenting Justices would have upheld the U.S. Army Corps of Engineers' regulation that interpreted "the waters of the United States" in the Clean Water Act to give the Corps jurisdiction over "immense stretches of intrastate land." Rapanos v. United States, 547 U.S. 715, 737-38 (2006) (plurality opinion). Without mentioning Chevron Step Zero or citing Christensen, Mead, Barnhart, or Gonzales v. Oregon, they would have accorded Chevron deference to the Corps's regulation-even calling it "a quintessential example of the Executive's reasonable interpretation of a statutory provision." Id. at 786-87 (Stevens, J., dissenting) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984)). The dissenters should at least have raised the possibility that Chevron Step Zero could deny Chevron deference. See Barnhart, 535 U.S. at 222 (Breyer, J.) (examining Chevron Step Zero factors even after determining that Chevron deference applied). But had they done so, under substep one of Chevron Step Zero, they probably would have quickly moved on to the Chevron inquiry because the format of the interpretation in Rapanos was a regulation. See Rapanos, 547 U.S. at 724 (plurality opinion). Of course, this would not explain Justice Breyer's position, as he rejects substep one of Chevron Step Zero. See supra note 117. Instead, he would still require a balancing of the all of the factors under substep two. See supra note 117. Thus, Chevron Step Zero would not have protected federalism in Rapanos. Regardless of federalism concerns, because of the nature of the question, the Chevron Step Zero factor would not have mattered because the format of the interpretation was a regulation. Instead, federalism could only be protected in Rapanos by using a clear-statement canon. See Rapanos, 547 U.S. at 737-38 (plurality opinion) (stating that the four-Justice plurality would have applied a federalism-based clear-statement canon to strike down the regulation). Granted, the regulation was struck down at 9Chevron Step One. See id. at 737;
168. id. at 758 (Roberts, C.J., concurring). But Chevron Step One itself does not offer any judicial protection of federalism-it simply requires construing the plain text of a statute. See Sunstein, After Chevron, supra note 58, at 2083-85.
169. See supra notes 35-37 and accompanying text.
170. Cf. Sunstein, Chevron Step Zero, supra note 16, at 248 ("The Court seems to have opted for standards over rules in precisely the context in which rules make the most sense: numerous and highly repetitive decisions in which little accuracy is to be gained by a more particularized approach."). The best example of stretching the factors that go into the balancing test in substep two of Chevron Step Zero probably comes from Justice Breyer's dissent in FDA v. Brown & Williamson Tobacco Corp. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). There, Justice Breyer ironically would have granted Chevron deference because the question was "very importan[t]" with much "publicity," so the President would be held politically accountable. Id. at 190-91 (Breyer, J., dissenting). In other words, because the issue was a very major question, Chevron deference would be accorded-even though, under the usual Chevron Step Zero inquiry, a major question would mean less administrative deference.
171. See Gonzales v. Oregon, 546 U.S. at 269 ("The deference here is tempered by the Attorney General's lack of expertise in this area and the apparent absence of any consultation with anyone outside the Department of Justice who might aid in a reasoned judgment.").
172. The author, therefore, disagrees with Gillian Metzger's suggestion that "ordinary administrative law" doctrines, like Chevron Step Zero, are adequate for protecting state interests. Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. 2023, 2107-09 (2008). Metzger is largely concerned with not creating "something more exceptional like constitutional or subconstitutional federalism doctrines," because this will "undermine administrative law's federalism potential insofar as it suggests that federalism concerns are not a legitimate focus of ordinary administrative law." Id. at 2107-08. But as this Article argues, constitutional federalism doctrines can be created specifically for administrative law, and such doctrines are the most direct way to protect state autonomy from federal administrative encroachment.
173. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 28-29 (Amy Gutmann ed., 1997) ("[T]here is also the question of where the courts get the authority to impose [clear-statement canons].").
174. Textual canons include rules of syntax. For a good discussion of textual canons, see id. at 25-27. For example, one textual canon is expressio unius est exclusio alterius-"[expression of the one is exclusion of the other." Id. at 25. To use Justice Scalia's example, if a statute exempts children under the age of twelve, under this canon, that statute would be interpreted so that children twelve or older are not exempted. Id.
175. Mendelson, supra note 21, at 745 (emphasis added). Both textual and clear-statement canons have existed for quite some time, and a "large number of canons of construction predat[e] Chevron." Id.
176. SCALIA, supra note 138, at 27. In addition to federalism clear-statement canons, the Court has created some clear-statement canons based on public policy: tax exemptions, anticompetitive practices, veteran benefits, and agency actions that have high costs but low benefits. Sunstein, Nondelegation Canons, supra note 51, at 334-35 (noting that the Court has relied on the nondelegation doctrine and utilized the clear-statement rule to implement "perceived public policy... by requiring Congress itself to speak if it wants to compromise policy that is perceived as generally held").
177. See generally Brian D. Galle, Can Federal Agencies Authorize Private Suits Under Section 1983?, 69 BROOK. L. REV. 163, 193-94 (2003) (arguing that "[t]he principle of federalism... derives its constitutional authority from the fact that it was a widely-shared assumption of the founding generation").
178. One view would essentially place no limits on a judge's ability to create clear-statement canons. Under this view, the authority to create such canons stems from the fact that "judges are competent to identify and incorporate public values into statutory interpretation." Mendelson, supra note 21, at 747. But as Justice Scalia has argued, this would introduce "unpredictability, if not... arbitrariness" into the interpretation of any statute. SCALIA, supra note 138, at 28. Judges could arbitrarily create virtually any canon they wanted to, thereby evading Chevron deference. See id.
179. SCALIA, supra note 138, at 29.
180. See also Mendelson, supra note 21, at 747 (positing that clear-statement canons might "represent a reasonable set of assumptions about what Congress might mean in passing statutory language").
181. SCALIA, supra note 138, at 29.
182. See Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) ("Congress may legislate in areas traditionally regulated by the States. This is an extraordinary power in a federalist system. It is a power that we must assume Congress does not exercise lightly.").
183. See also Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172-73 (2001) (assuming "that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority").
184. The Court has created clear-statement rules for the retroactive application of statutes, lenity in the criminal law context, the extraterritorial application of federal statutes, and laws applying to Native Americans. See Sunstein, Nondelegation Canons, supra note 51, at 332-33 (identifying three categories of nondelegation canons and, through specific examples, explaining how requiring a clear statement operates as a constraint on administrative power). These canons may be addressing underenforced constitutional norms. See Sunstein, After Chevron, supra note 58, at 2112.
185. See Somin, supra note 48, at 134 ("To be sure, the avoidance canon might be resuscitated if federalism is viewed as an 'underenforced constitutional norm.'"); Young, supra note 28, at 101 (arguing that courts should be permitted "to impose some restraint in areas where constitutional norms would otherwise be 'underenforced'").
186. See also Young, supra note 28, at 126 ("We should also forthrightly acknowledge that these clear-statement doctrines are constitutional in nature; as Larry Sager has demonstrated, the fact that a norm is 'underenforced'-that is, enforced through something short of a strong invalidation norm-does not mean the norm lacks grounding in the Constitution." (emphasis omitted)).
187. See supra note 143.
188. See supra note 42 and accompanying text.
189. Assume, for example, that an agency interpretation tried to accomplish a result that triggers a clear-statement rule, and Congress did not provide a clear statement that permits the agency to accomplish that result. Also assume, however, that the agency tried to accomplish this result by interpreting ambiguous statutory language, and the agency's interpretation of that ambiguous language was reasonable (which would normally give rise to Chevron deference). In this circumstance, the congressional delegation of power will be construed to forbid such a result, Chevron deference will be denied, and the federal agency will not have such a power-the power will be retained by the states.
190. Clear-statement canons apply regardless of whether Congress is legislating or delegating authority to administrative agencies. Nina Mendelson questions this position: "[r]espect to Chevron should oblige a court at least to explain why substantive canons should prevail over an approach in which courts defer to agency interpretations." Mendelson, supra note 21, at 746. Chevron itself, however, can be seen as a competing canon of statutory interpretation. See Sunstein, Nondelegation Canons, supra note 51, at 329 (describing Chevron as "an emphatically prodelegation canon"). It would be odd to allow Congress to evade clear-statement requirements by simply delegating authority to administrative agencies. The Court has implicitly, if not explicitly, adopted this view. See infra notes 157-58 and accompanying text.
191. With clear-statement rules, the statutory ambiguity at issue is Congress's lack of a clear statement allowing a result. See Sunstein, After Chevron, supra note 58, at 2114-15. This ambiguity is different from the statutory ambiguity that Chevron is looking for: with Chevron deference, the statutory ambiguity at issue is whether Congress used terms (in the statute that an agency administers) that are open to various interpretations. Id. at 2086-87.
192. See Sunstein, Nondelegation Canons, supra note 51, at 329 ("Indeed, Chevron establishes a novel canon of construction: In the face of ambiguity, statutes mean what the relevant agency takes them to mean." (citation omitted)).
193. Likewise, if a certain clear-statement canon of statutory construction only applied to administrative delegation, then it would also be an administrative law doctrine.
194. See Sunstein, Chevron Step Zero, supra note 16, at 244.
195. See also Sunstein, After Chevron, supra note 58, at 2111-14 (stating that "constitutionally inspired" clear-statement canons probably trump Chevron deference); Sunstein, Beyond Marbury, supra note 21, at 2607-10 (arguing that an exception to the Chevron deference principle should be made for nondelegation-or clear-statement-canons). See also Damien J. Marshall, Note, The Application of Chevron Deference in Regulatory Preemption Cases, 87 GEO. L.J. 263, 265 (1998) (arguing that Chevron deference should not apply in regulatory preemption cases).
196. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9 (1984) ("If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.").
197. But see Mendelson, supra note 21, at 746 n. 37 (suggesting that the Court's "cases suggest that rather than substantive canons," this Chevron language was only aimed at "textual canons").
198. See, e.g., INS v. St. Cyr, 533 U.S. 289, 320 n. 45 (2001) ("Because a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prospective, there is, for Chevron purposes, no ambiguity in such a statute for an agency to resolve." (citation omitted)); Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172-74 (2001) (determining that a clear-statement canon trumped Chevron deference);
199. id. at 174 ("We thus read the statute as written to avoid the significant constitutional and federalism questions raised by respondents' interpretation, and therefore reject the request for administrative deference.");
200. See also EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 260 (1991) (Scalia, J., concurring in part) ("I would resolve these cases by assuming, without deciding, that the EEOC was entitled to [Chevron] deference on the particular point in question. But deference is not abdication, and it requires us to accept only those agency interpretations that are reasonable in light of the principles of construction courts normally employ. Given the presumption against extraterritoriality that the Court accurately describes, and the requirement that the intent to overcome it be 'clearly expressed,' it is in my view not reasonable to give effect to mere implications from the statutory language as the EEOC has done." (emphasis added)).
201. See supra note 40 and accompanying text.
202. There has been confusion as to whether clear-statement canons apply (1) as a threshold question to Chevron, Mendelson, supra note 21, at 746 (arguing that clear-statement canons should apply as a threshold question to Chevron); (2) at Chevron Step One, St. Cyr, 533 U.S. at 320 n. 45 (applying a clear-statement canon at Chevron Step One); Sunstein, Beyond Marbury, supra note 21, at 2607 (same); or (3) at Chevron Step Two, Arabian Am. Oil Co., 499 U.S. at 260 (Scalia, J., concurring in part) (applying a clear-statement canon at Chevron Step Two). This confusion stems from the fact that clear-statement canons and Chevron are looking for different types of statutory ambiguity. Clear-statement canons are looking to see whether Congress provided something approaching "magic words" that would allow the result triggering the canon. Cf. St. Cyr, 533 U.S. at 327 (Scalia, J., dissenting) (criticizing the majority for "fabricat[ing] a superclear statement, 'magic words' requirement for the congressional expression of such an intent, unjustified in law and unparalleled in any other area of our jurisprudence"). But cf. SCALIA, supra note 138, at 28 (noting that there are "no answers" to the question of "how clear is an 'unmistakably clear' statement?"). Chevron, though, is looking for ambiguity in the statutory words that an agency purportedly based its interpretive authority on-and the fit between such ambiguity and the resulting interpretation. To clarify this point, assume that an agency, while purporting to interpret the statute that it administers, creates an interpretive rule that citizens can sue states for employment discrimination claims, which triggers a preexisting clear-statement canon. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985), superseded by statute, Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, § 1003, 100 Stat. 1807, 1845, as recognized in Lane v. Pena, 518 U.S. 187, 197-98 (1996) (requiring a clear statement for Congress to abrogate state sovereign immunity). Also, assume that the statute the agency administers only said that the agency has "the authority to create regulations abolishing college football's Bowl Championship Series and implementing a true college football playoff system"-thus, the statute contained no clear statement that Congress or the agency could abrogate state sovereign immunity. For the clear-statement canon inquiry, given that a canon was triggered, the statutory delegation at issue is unimportant-except to check whether Congress provided a clear statement permitting the agency to abrogate state sovereign immunity. In other words, while the interpretive rule in this hypothetical dealt with employment discrimination and the statutory delegation dealt with a college football playoff system-both of which are completely unrelated-the clear-statement-canon inquiry does not care that the statutory delegation dealt with a college football playoff system, only that it did not clearly abrogate state sovereign immunity. On the other hand, under the Chevron inquiry, this would be an easy case, and the regulation would be invalidated because the interpretive rule is not a reasonable interpretation of the statutory delegation.
203. See supra note 160.
204. The hypothetical regarding abrogation of state sovereign immunity for employment discrimination suits and the statute relating to a college football playoff system would be such a case. See supra note 160.
205. Cf. Sunstein, Chevron Step Zero, supra note 16, at 245 n. 245 (suggesting that Gonzales v. Oregon "may depend on a nondelegation canon to the effect that federal intrusions on state authority must be explicit").
206. See, e.g., Rapanos v. United States, 547 U.S. 715, 737-38 (2006) (plurality opinion) (invoking clear-statement canons only after determining that a statute was unambiguous at Chevron Step One); Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172 (2001) (same).
207. Gonzales v. Oregon, 546 U.S. 243, 274 (2006).
208. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) (creating a clear-statement canon when the law at issue would "upset the usual constitutional balance of federal and state powers").
209. See, e.g., SWANCC, 531 U.S. at 172-73 ("Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result. This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority." (citation omitted)).
210. See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (articulating the "assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress").
211. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) ("Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.").
212. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985), superseded by statute, Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, § 1003, 100 Stat. 1807, 1845, as recognized in Lane v. Pena, 518 U.S. 187, 197-98 (1996) ("Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.").
213. See, e.g., United States v. Lot 5, Fox Grove, 23 F. 3d 359, 362 (11th Cir. 1994) ("[T]he Gregory plain statement preemption rule is limited to federal laws impacting a state's self-identification as a sovereignty."); Gately v. Massachusetts, 2 F. 3d 1221, 1230 (1st Cir. 1993) (explaining that Gregory is limited to protecting "a core function going to the 'heart of representative government'").
214. See Somin, supra note 48, at 134 ("If Raich is correct and congressional Commerce Clause power is essentially unlimited, a statute that relies on a broad interpretation of that power cannot 'raise serious' constitutional problems.' After Raich, there can be no 'problem' because there are no constitutional limits for Congress to infringe." (citation omitted)).
215. See Viet D. Dinh, Reassessing the Law of Preemption, 88 GEO. L.J. 2085, 2085 (2000) ("Notwithstanding its repeated claims to the contrary, the Supreme Court's numerous preemption cases follow no predictable jurisprudential or analytical pattern.").
216. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 552 (1985).
217. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001);
218. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000);
219. MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994).
220. This major-question canon is essentially also a factor in Chevron Step Zero's balancing test. See supra note 135 and accompanying text. Indeed, in Gonzales v. Oregon, the Court quoted the Whitman canon in its discussion about Chevron Step Zero. Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (quoting Whitman, 531 U.S. at 468).
221. Whitman, 531 U.S. at 468. The Whitman major-question canon was premised on statements from two other cases: FDA v. Brown & Williamson Tobacco Corp., 529 U.S. at 160 ("Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion."), and MCI Telecommunications Corp. v. AT&T Co., 512 U.S. at 231 ("It is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion ....").
222. The Whitman major-question canon parallels the nature-of-the-question factor in the balancing test of Chevron Step Zero's substep two. But the Whitman canon is dispositive, whereas the existence of a major question is simply one factor to balance under Chevron Step Zero. Additionally, the Whitman canon would apply to all agency interpretations, including those made through notice-andcomment rulemaking, unlike Chevron Step Zero's balancing test.
223. See supra Part II.B.
224. Whitman, 531 U.S. at 468.
225. Sunstein, Nondelegation Canons, supra note 51, at 317.
226. See supra notes 32-35 and accompanying text.
227. Gregory v. Ashcroft, 501 U.S. 452, 455 (1991) (quoting Mo. Const, art. V, § 26).
228. Id. at 456 (quoting 29 U.S.C. §§ 623(a), 631 (a) (2006)).
229. See id. at 464 ("We are constrained in our ability to consider the limits that the state-federal balance places on Congress' powers under the Commerce Clause. But there is no need to do so if we hold that the ADEA does not apply to state judges. Application of the plain statement rule thus may avoid a potential constitutional problem. Indeed, inasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress' Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise." (citation omitted)).
230. Id. at 460-61.
231. Of course, another view of Gregory is that it is wrong. Four Justices on the Gregory Court refused to create this clear-statement canon. See id. at 474 (White, J., concurring in part and dissenting in part) ("1 cannot agree with this 'plain statement' rule because it is unsupported by the decisions upon which the majority relies, contrary to our Tenth Amendment jurisprudence, and fundamentally unsound.");
232. id. at 486 (Blackmun, J., dissenting) ("I agree entirely with the cogent analysis contained in Part I of Justice White's opinion."). These Justices did not want "to carve out areas of state activity that will receive special protection from federal legislation." Id. at 477 (White, J., concurring in part and dissenting in part). But at least in the administrative law context, the Justices on the current Court seem to disregard this view. The Gonzales v. Oregon majority specifically protected federalism while citing the "federalstate balance" and relying on the dichotomy of "areas traditionally supervised by the States' police power." Gonzales v. Oregon, 546 U.S. 243, 274-75 (2006).
233. Gregory, 501 U.S. at 460 (emphasis added).
234. Gonzales v. Oregon, 546 U.S. at 291 (Scalia, J., dissenting).
235. See also United States v. Lot 5, Fox Grove, 23 F. 3d 359, 362 (11th Cir. 1994) ("[T]he Gregory plain statement preemption rule is limited to federal laws impacting a state's self-identification as a sovereignty.");
236. Gately v. Massachusetts, 2 F. 3d 1221, 1230 (1st Cir. 1993) (explaining that Gregory is limited to protecting "a core function going to the 'heart of representative government'").
237. Gregory, 501 U.S. at 460.
238. Nat'l League of Cities v. Usery, 426 U.S. 833, 852 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
239. Gregory, 501 U.S. at 460.
240. Id. (emphasis added).
241. Id.
242. Id.
243. Id.
244. First, BFP v. Resolution Trust Corp. expanded the Gregory clear-statement canon to cover "traditional state regulation[s]." BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994). Second, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers applied the Gregory canon and explained that its concern was "heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power." Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 173 (2001). Third, Raygor v. Regents of the University of Minnesota applied the Gregory canon because Congress had legislated in a '"traditionally sensitive area[]' that 'affect[s] the federal balance.'" Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 543-44 (2002) (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989)).
245. There is historical support for the area-of-traditional-state-regulation dichotomy. As early as 1837, the Supreme Court was protecting the states' police powers, even if they involved commerce among the states. See Mayor of N.Y. v. Miln, 36 U.S. 102, 128-29 (1837).
246. See, e.g., United States v. Morrison, 529 U.S. 598, 615-16 (2000) (expressing concern that following petitioner's reasoning would result in no limits on Congress's ability to regulate "areas of traditional state regulation").
247. Lynn A. Baker, Federalism and the Spending Power from Dole to Birmingham Board of Education, in THE REHNQUIST LEGACY 205, 218-21 (Craig M. Bradley ed., 2006).
248. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 539-40 (1947) (emphasis added), quoted in Kelly v. Robinson, 479 U.S. 36, 49 n. 11 (1986).
249. See, e.g., Wickard v. Filburn, 317 U.S. 111, 128-29 (1942) (upholding a law regulating the personal growing and consuming of wheat under the Commerce Clause); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) (upholding the National Labor Relations Act under the Commerce Clause).
250. United States v. Bass, 404 U.S. 336, 349 & n. 16 (1971).
251. A few other cases not involving criminal statutes cite Bass for its federalism clear-statement canon. See, e.g., Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 643-44 (1986) ("The need for a proper evidentiary basis for agency action is especially acute in this case because Congress has failed to indicate ... that it envisioned federal superintendence of treatment decisions traditionally entrusted to state governance."); Heublein, Inc. v. S.C. Tax Comm'n, 409 U.S. 275, 281-82 (1972) ("Congress, then, did not address ... the problem of taxing a business when it undertook local activities simply in order to comply with the requirements of a valid regulatory scheme. Such regulation is an important function of local governments in our federal scheme.").
252. Bass, 404 U.S. at 349 (emphasis added).
253. The debate on the presumption against preemption has become convoluted due to equivocation with the word "preemption." See, e.g., Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 203-04 (1983) (using the terms "supersede" and "displace" interchangeably with "preempt[ion]" while discussing the various types of preemption). Preemption, as defined by the Court, is a much more limited concept than supremacy. Preemption is merely one way in which federal law can supersede state law. See Dinh, supra note 173, at 2102 ("Conflict preemption thus represents the paradigmatic operation of the Supremacy Clause ...." (citing Louise Weinberg, The Federal-State Conflict of Laws: "Actual" Conflicts, 70 TEX. L. REV. 1743, 1751 (1992))). The Court's definition of preemption is therefore narrower than how the word is used in ordinary language. As Caleb Nelson points out, there is a difference between the "logical-contradiction test" that triggers the Supremacy Clause and the Court's "physical impossibility" test for conflict preemption. Caleb Nelson, Preemption, 86 VA. L. REV. 225, 260 (2000). Most importantly for our purposes, in situations where "one sovereign's law purports to give people a right to engage in conduct that the other sovereign's law purports to prohibit," the Supremacy Clause's logical-contradiction test is satisfied (so federal law would supersede state law)-but the physical impossibility test for conflict preemption is not satisfied (so the presumption against preemption would not be triggered). Id. at 228 n. 15, 260-61. Rather, the physical impossibility test will only be met when "federal law requires what state law prohibits (or vice versa)." Id. at 228 n. 15. Returning to Gonzales v. Oregon, Justice Scalia was correct to recognize that the Ashcroft Directive did not involve preemption-as the term has been used by the Court-because Oregon law did not require doctors to use controlled substances to end a patient's life. Gonzales v. Oregon, 546 U.S. 243, 289-90 (2006) (Scalia, J., dissenting). To put it another way, the basic operation of the Supremacy Clause is not "preemption" under the Court's definition of preemption. See Dinh, supra note 173, at 2103. This could explain why Justice Scalia and other commentators have opposed the view that all preemption cases raise federalism concerns. See AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 378 n. 6 (1999) (Scalia, J.) (finding an invocation of "States' rights" to be "most peculiar" in the preemption context).
254. See also Michael S. Greve, Federalism's Frontier, 7 TEX. REV. L. & POL. 93, 117 (2002) ("Preemptive statutes are inherently less intrusive than regulatory statutes. Thus, there is no functional justification for subjecting them to a judicial test of the devastating force of the clear statement rule.").
255. When some commentators refer to preemption, they are actually referring to supremacy. See, e.g., Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727, 739 (2008) ("Conflict preemption can be regarded as equivalent to what I call trumping: application of state law would nullify federal law and hence state law must give way."); Christopher R.J. Pace, Essay, Supremacy Clause Limitations on Federal Regulatory Preemption, 11 TEX. REV. L. & POL. 157, 170 (2006) (arguing that administrative interpretations "extend[ing] the reach of federal authority beyond the parameters outlined by Congress with any clarity or ascertainability" should not "displace state law under the Supremacy Clause");
256. Young, supra note 39, at 49 (insinuating that Gonzales v. Oregon involved preemption and that it is "critical that federal preemptive authority actually be exercised by Congress"). These commentators are rightly concerned about reducing the amount of federal administrative regulation that supersedes state law, and an expanded clear-statement canon for administrative interpretations made in areas traditionally regulated by the states could be a sufficient alternative to the presumption against preemption. After all, even Rice v. Santa Fe Elevator Corp. seemed to limit the presumption against preemption to laws implicating the "historic police powers of the States." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Additionally, this canon would provide a simple answer to those who oppose the Rice presumption against preemption on the grounds that it would underenforce the Supremacy Clause: the clear-statement canon this Article proposes is really grounded in the underenforcement of federalism and the nondelegation doctrine. Furthermore, even opponents of the presumption against preemption have accepted federalism-based clear-statement canons. See, e.g., Dinh, supra note 173, at 2092-93 ("Positing that the federal structure does not support a general preemption presumption does not mean the Court cannot rely on specific interpretive canons based on core federalism principles.").
257. Rice, 331 U.S. 218.
258. On its face, it is unclear whether the Rice presumption against preemption requires a clear statement or some lesser showing of congressional intent. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 544 (1992) (Scalia, J., concurring in part and dissenting in part) ("Under the Supremacy Clause, our job is to interpret Congress's decrees of pre-emption neither narrowly nor broadly, but in accordance with their apparent meaning." (citation omitted)); Nelson, supra note 206, at 230 (explaining that some commentators have proposed to strengthen the Rice presumption against preemption by instituting clear-statement rules). But see Sunstein, Nondelegation Canons, supra note 51, at 331 (discussing a clear-statement rule for preempting state laws); Young, supra note 28, at 18 & n. 78 (describing the Rice presumption as a clear-statement canon of statutory construction).
259. The first time the phrase "presumption against preemption" appears in the United States Reports is in a dissenting opinion authored by Justice Stevens. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 421 (1992) (Stevens, J., dissenting). One year later, the phrase made its way into a near-unanimous opinion. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 668 (1993). But Cipollone v. Liggett Group, Inc., is the most cited case for the presumption against preemption. Cipollone, 505 U.S. 504. While the phrase did not appear in the portion of Justice Stevens's opinion that commanded a majority, the portion of the opinion laying out the rationale behind the presumption against preemption (Part III) received seven votes. Id. at 516-17.
260. Rice, 331 U.S. at 230 (emphasis added).
261. Young, supra note 28, at 91. See id. at 114 ("[W]e can tolerate a bit more indeterminacy in the operative definitions if the only consequence of a finding that the line has been transgressed is to refer the decision back to Congress for clarification.").
262. Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 TEX. L. REV. 1549, 1606-07 (2000) (citations omitted).
263. See United States v. Lopez, 514 U.S. 549, 574 (1995) (Kennedy, J., concurring) ("That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th-century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.").
264. See Somin, supra note 48, at 139 ("Even if clear statement rules are an inadequate substitute for substantive judicial review, they could still serve a useful function by giving Congress an incentive to draft clearer and less ambiguous laws. And it is certainly possible that they do restrict the growth of federal power slightly. These benefits might be sufficient to justify the continued use of federalism clear statement rules. Even if such rules have relatively few benefits, they also do not seem to impose significant costs.").
265. This point is illustrated best by Rapanos v. United States, 547 U.S. 715 (2006), where the Justices in the majority of Gonzales v. Oregon-who had protected federalism in that case through Chevron Step Zero-refused to protect federalism in Rapanos through a clear-statement canon. See infra notes 235-37 and accompanying text.
266. See Somin, supra note 48, at 135 ("This difficulty underscores the crucial point that defenders of the federalism clear statement rule lack a coherent theory that can determine where the rule should apply.").
267. See United States v. Morrison, 529 U.S. 598, 639-40 (2000) (Souter, J., dissenting) (observing that the history of the Commerce Clause "has shown that categorical exclusions have proven as unworkable in practice as they are unsupportable in theory"); Lopez, 514 U.S. at 574 (Kennedy, J., concurring) ("The history of our Commerce Clause decisions contains at least two lessons of relevance to this case. The first, as stated at the outset, is the imprecision of content-based boundaries used without more to define the limits of the Commerce Clause.").
268. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 537-41 (1985).
269. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 598 (1992).
270. William N. Eskridge, Jr. & Kevin S. Schwartz, Commentary, Chevron and Agency Norm-Entrepreneurship, 115 YALE L.J. 2623, 2632 (2006).
271. See also Garcia, 469 U.S. at 546 ("Any rule of state immunity that looks to the 'traditional,' 'integral,' or 'necessary' nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes.").
272. See supra note 27.
273. See supra note 221 and accompanying text.
274. Justice Scalia's answer has been to look for a narrower set of cases triggering this federalism clear-statement canon. As he explained in Gonzales v. Oregon, Justice Scalia would use a clearstatement canon for intrusions "upon an area traditionally reserved exclusively to the States." See Gonzales v. Oregon, 546 U.S. 243, 292 (2006) (Scalia, J., dissenting) (citing BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994)) (emphasis added).
275. The five Justices on the Rehnquist Court who supported the Chief Justice's federalist revolution relied on federalism clear-statement canons-usually over dissents by the remaining four Justices. See, e.g., Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001). In fact, Justice Souter provided the fifth vote supporting Gregory's federalism clear-statement rule. Gregory v. Ashcroft, 501 U.S. 452 (1991). Then, in Gonzales v. Oregon, Justices Stevens, Souter, Ginsburg, Breyer, and O'Connor joined Justice Kennedy in relying heavily on the area-of-traditional-state-regulation dichotomy. See Gonzales v. Oregon, 546 U.S. at 274.
276. See supra notes 213-16 and accompanying text.
277. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 540 (1985).
278. Rapanos v. United States, 547 U.S. 715 (2006).
279. AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366 (1999).
280. The Court called for the views of the Solicitor General in a case addressing whether FCC regulations related to local telephone service preempt state laws, although certiorari was ultimately denied. Nat'l Ass'n of State Util. Consumer Advocates v. FCC, 457 F. 3d 1238 (1 lth Cir. 2006), cert, denied, 128 S. Ct. 1119 (2008) (No. 06-1184);
281. Supreme Court of the United States, Docket for 06-1184, http://supremecourtus.gov/docket/06-l 184.htm (last visited Nov. 5, 2008).
282. The Supreme Court, 2005 Term-Leading Cases, 120 HARV. L. REV. 361, 362 (2006).
283. See also Gersen, supra note 21, at 244;
284. Sunstein, Chevron Step Zero, supra note 16, at 245 n. 24 (suggesting that Gonzales v. Oregon "may depend on a nondelegation canon to the effect that federal intrusions on state authority must be explicit").
285. Gonzales v. Oregon, 546 U.S. 243, 274 (2006).
286. See supra notes 100-07 and accompanying text.
287. See Gonzales v. Oregon, 546 U.S. at 300-01 (Thomas, J., dissenting).
288. Rapanos v. United States, 547 U.S. 715, 723, 738 (2006) (plurality opinion).
289. Id. at 738. The plurality, though, simply used the canon as an alternative argument to its main argument denying Chevron deference. See id. at 737-38 (invoking clear-statement canons only after determining that a statute was unambiguous at Chevron Step One). Interestingly, the three dissenting Justices in Gonzales v. Oregon (plus the newly confirmed Justice Alito) made up this Rapanos plurality.
290. See id. at 776 (Kennedy, J., concurring); id. at 803-04 (Stevens, J., dissenting).
291. AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 377-78 (1999).
292. Id. at 402 (Thomas, J., concurring in part and dissenting in part).
293. Id. (emphasis added).
294. Id. at 412.
295. See, e.g., Printz v. United States, 521 U.S. 898 (1997) (holding that Congress unconstitutionally commandeered state officers); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (holding that Congress could not abrogate states' sovereign immunity under the Indian Commerce Clause); United States v. Lopez, 514 U.S. 549 (1995) (restricting Congress's power under the Commerce Clause); New York v. United States, 505 U.S. 144 (1992) (holding that Congress unconstitutionally commandeered a state legislature).
296. Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 160-61 (2001) (Breyer, J., dissenting).
297. Cf. David Sclar, U.S. Supreme Court Ruling in Gonzales v. Oregon Upholds the Oregon Death with Dignity Act, 34 J.L. MED. & ETHICS 639, 642 (2006) ("But in this case, issues of federalism are generally tangential to questions of statutory interpretation.").
298. Younger v. Harris, 401 U.S. 37, 44 (1971).
299. Gonzales v. Oregon, 546 U.S. 243 (2006).