Document Type

Article

Publication Date

2011

Center/Program

Center for Constitutional Governance

Abstract

This Article assesses three major preemption decisions from the 2008-2009 Term-Altria Group, Inc. v. Good, Wyeth v. Levine, and Cuomo v. Clearing House Ass'n-for their implications about the role of the states in national administrative governance. The Article argues the decisions are centrally concerned with using state law and preemption analysis to improve federal administration and police against federal agency failure. Federalism clearly factors into the decisions as well, but it does so more as a mechanism for enhancing federal agency performance than as a principle worth pursuing in its own right.

The decisions' framing of state law and preemption analysis as mechanisms for improving federal administration, however, stands in sharp contrast with other judicial precedents, in both the preemption and administrative law contexts, in which the Supreme Court has rejected efforts to use state law and court challenges to police federal agency performance. While the Article explores whether this conflicting jurisprudence can be explained by a distinction between direct and indirect efforts at federal agency reform, it ultimately concludes such a direct-indirect distinction is analytically and normatively unsatisfying. The Article then considers the possibility that the Court is instead assigning the states a special role to play in monitoring federal agencies. Although this account holds potential, the Article argues that the Court has so far failed to justify such an approach.

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