Professor Rubenstein Challenges Ability of Federal Agencies to Preempt State Law

Photograph: David S. Rubenstein.Professor David Rubenstein's article,"Delegating Supremacy?," has been published at 65 Vanderbilt Law Review 1125 (2012).

Under the Supreme Court’s preemption doctrine, federal agencies may preempt state law in much the same way that Congress can. While the Supremacy Clause clearly empowers Congress to preempt state law, administrative preemption rests on the undertheorized assumption that Congress may “delegate supremacy” to agencies. Professor Rubenstein challenges the constitutionality of that premise and offers a normative defense of a federalist system where agencies are stripped of the power to create supreme law. His proposal to foreclose administrative supremacy will no doubt be controversial because of the significant implications it creates for federalism and the operation of modern government. Some of the more serious implications would include a state’s ability to trump conflicting agency policies (rather than vice-versa) and potentially requiring Congress to decide more preemption questions than it might reasonably be expected to. Professor Rubenstein argues that these and other implications are not only more consistent with the framers’ original design but, on balance, may better promote the values of federalism.

Posted August 7, 2012