This Article critiques the practice of limiting federal agency authority in the name of federalism. Existing limits presently bind agencies even more tightly than Congress. For instance, although Congress can regulate to the limits of its commerce power with a sufficiently clear statement of its intent to do so, absent clear congressional authorization an agency cannot, no matter how clear the language of the agency’s regulation. Similarly, although Congress can preempt state law, albeit only when its intent to do so is clear, some commentators have read a line of Supreme Court decisions to hold that agencies cannot, except upon Congress’s clear authorization.

A number of leading commentators have hailed this combination of rules on the ground that congressional control over questions of federalism should be preferred to agency decisionmaking. Congress, they claim, is more deliberative, more transparent to the public, and more accountable than the executive. Additionally, given the relative ease of enacting regulations rather than statutes, those who favor Congress fear that lower barriers to federal expansion in the executive would lead to runaway federal power.

We argue that both these sets of claims are, at best, only occasionally accurate. In many instances agencies are—or with wise doctrines of judicial review can be made to be—more democratic and deliberative than Congress. Although regulating almost always is easier than legislating, in many instances the need for additional speed bumps under the wheels of the executive is negligible or downright counterproductive. Thus, we argue for a more nuanced set of rules that would permit agencies in many instances to preempt or regulate without the need for express congressional approval.

Boston College Law School Faculty Papers

Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power

<p>This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed that judges would void legislation repugnant to the Constitution—what is now referred to as judicial review. This history helps to resolve certain debates over the origins of judicial review and also explains why the answer to other controversies over judicial review may not be easily found in the history of the Founding era. The assumption that legislation could not be repugnant to the Constitution produced judicial review, but it did not resolve issues such as departmentalism or judicial supremacy that arose with the continuation of this repugnancy practice after the Constitution.</p>

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Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power

The Corporate Origins of Judicial Review