Administrative Law as the New Federalism
Few doubt the tremendous impact the modern national administrative state has had on our federal system. Yet the relationship between federalism and administrative law remains strangely inchoate and unanalyzed. Although administrative law's constitutional dimensions are generally recognized to have significant federalism implications, more run-of-the-mill administrative law concerns are rarely approached through a federalism lens. Recent Supreme Court case law suggests that the blinders to the relationship of federalism and administrative law may be lifting. In a number of highly contentious recent decisions, the Court has refused curb Congress's regulatory authority on constitutional grounds, but nonetheless indicated that federalism concerns with protecting the states' independent regulatory role nonetheless retain traction. The means by which the Court appears to be addressing such concerns, however, is administrative law. As a result, administrative law may be becoming the new federalism.
This article aims to explore how the Court may be employing administrative law as a surrogate for constitutional federalism and to assess how well administrative law performs this surrogacy role. I conclude that administrative law has important federalism-reinforcing features, but that the Court's decisions to date have failed to fully develop administrative law's federalism potential. I also argue that the best approach – not only for the functioning of federal agencies but, critically, for the continued vibrancy of federalism in the world of the modern federal administrative state – is for the Court (and Congress and the President) to advance federalism within the overall rubric of administrative law, rather than to treat federalism as a more absolute restriction on agency action absent express congressional authorization.
The article consists of four parts. Part I contains an analysis of recent Supreme Court precedent, focusing in particular on five decisions addressing the intersection of federalism and administrative law. Part II advances the claim that administrative law may be becoming the new federalism. Here I contend that the Court is unwilling to curb Congress on federalism grounds and that federalism concerns instead are being incorporated into administrative law. I then examine two ways in which federalism concerns are being addressed through an administrative law framework: application of ordinary administrative law to the benefit of the states and development of more extraordinary federalism-inspired administrative law analyses. I also discuss the current administrative preemption debate, which I contend approaches the relationship between federalism and administrative law in overly narrow terms, emphasizing the conflict between federalism and administrative law rather than their potential synergies.
Part III switches to a more normative and theoretical perspective. I begin with an analysis of whether using administrative law as a surrogate for federalism concerns is a legitimate judicial undertaking. I conclude that it is, and underscore the benefits of the administrative law approach over other subconstitutional federalism doctrines. I then examine whether, even if legitimate, using administrative law as a surrogate for federalism concerns is likely to prove effective. In addition to rejecting claims that administrative agencies are categorically ill-suited to protecting state regulatory autonomy, I emphasize the need to distinguish between agencies and administrative law. In that vein, I argue that three features of administrative law reinforce its federalism potential: its procedural mechanisms, in particular notice-and-comment rulemaking; its doctrinal and institutional capaciousness; and its very status as subconstitutional law.
Part IV assesses the implications of this analysis of administrative law's federalism potential. One implication is that the Court should employ administrative law with an eye to reinforcing agencies' sensitivity and responsiveness to state interests. A second is that federalism concerns raised by federal agency action may be best advanced through ordinary administrative law, albeit with express recognition of how state interests factor into judicial review. Although the Court's recent decisions make some helpful steps in this direction, their lack of clarity and reflection on how federalism concerns should factor into application of administrative law limit their generative potential.