Article Title

Delegating Supremacy?

Authors

David S. Rubenstein

First Page

1125

Abstract

The Supreme Court has long held that federal agencies may preempt state law in much the same way as Congress: either by issuing binding administrative rules that conflict with state law or by asserting exclusive federal control over a regulatory domain. Under this sweeping conception of the Supremacy Clause, agencies wield an extraordinary power in our federalist system. Specifically, agencies may displace the laws of all fifty states without the political and procedural safeguards inhering in the legislative process. The administrative-preemption power rests on the undertheorized doctrinal assumption that Congress may, in effect, "delegate supremacy" to agencies.

This Article challenges the constitutionality of that premise and normatively defends an imagined federalist system in which agencies are stripped of the power to create supreme federal law.

Recommended Citation

David S. Rubenstein, Delegating Supremacy?, 65 Vanderbilt Law Review 1125 (2012)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol65/iss4/1