Federalism and Federal Agency Reform
This article assesses three major recent preemption decisions, all issued during the 2008-2009 term, for their implications about the role of the states in national administrative governance. A striking feature of the decisions is the extent to which they are centrally concerned with using state law and preemption analysis to improve federal administration and police against federal agency failure. Federalism clearly factored into the decisions as well, but it did so more as a mechanism for enhancing federal agency performance than as a principle worth pursuing in its own right.
The decisions’ framing state law and preemption analysis as mechanisms for improving federal administration 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. One possible explanation of the Court’s conflicting jurisprudence, and the one on which I focus here, is as reflecting a distinction between direct and indirect efforts at federal agency reform. Such a direct-indirect distinction has substantial appeal on both federalism and separation of powers grounds, but I ultimately conclude that drawing a firm line between direct and indirect efforts to improve agency performance is analytically and normatively unsatisfying. Indirect methods can have a significant impact on agencies and state measures do not clearly sort into direct and indirect categories. Nor, moreover, do direct state efforts to target federal administration necessarily run afoul of constitutional federalism principles. Instead, in our contemporary world of concurrent federal and state authority and an ever-expanding national administrative state, some direct state targeting of federal agencies seems both constitutionally legitimate and functionally necessary if states are to play a meaningful governance role.