Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?: Hearing Before the S. Comm. on the Judiciary,, 110th Cong., Sept. 12, 2007 (Statement of Viet D. Dinh, Geo. U. L. Center) (original) (raw)

Against Preemption: How Federalism Can Improve the National Legislative Process

SSRN Electronic Journal, 2003

When Congress enacts a law to protect the health and safety of consumers, employees, or citizens generally, it acts against the background of pervasive state common-law regulation. What difference should this regulatory background make to the courts' interpretation of those federal statutes? Should the courts presume that Congress wanted to preserve state tort law, or is any such presumption, well, presumptuous-that is, judicial over-reaching? There are two dominant answers to this question in the scholarly literature. First, a number of scholars argue that courts ought to presume that Congress intends to preserve state powers, usually on the ground that federalism as a general matter is an important constitutional value that should not be lightly overridden. 1 Second, a smaller number of scholars argue that the existence of state regulation should make no difference to how courts construe federal statutes, either because preemptable state laws are not, as a matter of policy, healthy exercises of federalism 2 or because the text and history of Article VI suggests rejection of a "federalism canon" of statutory construction. 3 The Court itself is divided on the issue of preemption in ways that cut across the normal fault lines: Justice O'Connor, normally regarded as a champion of federalism, tends to reject any "clear statement" rules against preemption. Justice Stevens, generally an opponent of judicially enforced federalism, has been a fairly consistent supporter of narrow interpretation of preemption. Lest one think that these divisions can easily be

Congress\u27s Power to Preempt the States

2012

In this Article, part of a symposium on federal preemption of state tort law, I build upon my earlier work on the nature of preemption to try and deepen the conceptual and constitutional foundations of the subject. I argue that this neglected dimension must be moved to center stage if preemption doctrine is to have a coherent and principled framework. In particular, the key issues are the nature, source, and limits of Congress\u27s power to preempt the states. The result is that preemption should be understood as a discretionary power of Congress the source of which lies in the Necessary and Proper Clause. Most importantly, one and the same constitutional limit on this power is strongly suggested by analyzing it from all four of the following perspectives: (a) its source in the Necessary and Proper Clause; (b) its similarity to two other congressional powers to alter federal-state relations, (c) the political safeguards of federalism, and (d) comparative constitutional law. This con...

Federalism and the Right to Decide Who Decides

Villanova Law Review, 2019

Federal laws sometimes preempt all state policies except those created by legislative enactment. For example, under the Welfare Reform Act of 1996, states cannot give public benefits to undocumented immigrants unless the state legislature enacts a statute that does so. Such laws effectively compel states to delegate their sovereign decision-making power to one entity within a state’s government (like the legislature) rather than others (like the courts). This article argues that using the preemption power to push decisions into state legislatures is unconstitutional. It is similar to the problem with Congress commandeering state officials by making them implement federal regulatory programs. Both practices involve Congress regulating states directly, as opposed to regulating individuals. The only difference is that instead of requiring specific behavior from state officials, Congress is dictating what H.L.A. Hart called “secondary rules”: meaning, here, rules about who has the power to make rules. It’s as if a state created an official to decide which branch of state government should handle any given policy question—a Delegator General—and Congress passed a statute dictating the outcome of that official’s decisions. This article considers the arguments that might be made in defense of delegation-forcing preemption, and finds them unconvincing.

Challenging Federalism: How the States’ Loud Constitutional Provocation is Being Met with Silence

Journal of Legislation, 2018

, Federalist No. 80 "The fact that the Paris deal hamstrings the United States while empowering some of the world's top polluting countries should expel any doubt as to why foreign lobbyists should wish to keep our beautiful country tied up and bound down. .. That's not going to happen while I'm president, I'm sorry."-President Donald J. Trump "Trump is AWOL, but California is on the field, ready for battle."-California Governor Jerry Brown † J.D. Candidate, Notre Dame Law School, 2019. The author is grateful for the editorial staff on the Journal of Legislation for helping shape this Note with their detailed editing and insightful comments. Special thanks to Professor Nicole Garnett and Professor William Kelley for providing an initial framework for this paper. Lastly, the author would also like to thank her family, and her father George in particular, for their unwavering support.