How Courts Can Protect State Autonomy from Federal Administrative Encroachment
Article by Scott A. Keller
From Volume 82, Number 1 (November, 2008)
Unlike the federalism cases typical of the Rehnquist Court, modern federalism cases will not involve interpretation of the Commerce Clause or the Tenth Amendment, particularly after Gonzales v. Raich refused to expand the Commerce Clause to protect state autonomy. Instead, modern federalism cases will involve basic statutory construction. The Supreme Court has become increasingly interested in cases dealing with the intersection of federalism and statutory construction, deciding two such cases during the October 2007 Term and granting certiorari in two other cases for the 2008 Term.
Federalism concerns in statutory construction arise most frequently in administrative law, as modern federal agencies produce an enormous amount of laws. As a result, the hard questions about federalism now appear in administrative law cases. Courts and commentators are becoming wary of the ability of federal agencies to encroach on state autonomy, given the underenforced constitutional norms of federalism and the nondelegation doctrine.
The Supreme Court recently examined the intersection of federalism and administrative law in Gonzales v. Oregon, but adopted an inadequate approach (“Chevron Step Zero”) to protecting state autonomy from administrative encroachment. Instead of using Chevron Step Zero to protect federalism in administrative law, courts should expand federalism-based clear-statement canons of statutory construction. Specifically, courts should expand the scope of Gregory v. Ashcroft in the administrative law context to adopt a clear-statement canon that applies to administrative interpretations made in areas of traditional state regulation. Such a canon finds support in preexisting clear-statement canons and the Supreme Court’s continued reliance on the “areas of traditional state regulation” dichotomy. This canon would be a direct, effective approach to protecting state autonomy from administrative encroachment.
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