Delegating Supremacy?

David S. Rubenstein, Washburn University

Abstract

The Court has held that federal agencies may preempt state law in much the same way as Congress. While the Supremacy Clause clearly empowers Congress to displace state law, administrative preemption rests on the undertheorized assumption that Congress may “delegate supremacy” to agencies. This Article challenges the constitutionality of that premise and imagines an unfolding system where agencies are stripped of the power to create supreme federal law. My proposal will no doubt be controversial because of the significant implications it holds for federalism and the operation of modern government. Some of the more serious implications include the substantive displacement of agency policy by conflicting state law (rather than vice-versa), and potentially requiring Congress to decide more preemption questions than it might reasonably be expected to. This Article is the first to argue that these and other implications are not only operationally tolerable, but also desirable for federalism.