Document Type

Article

Publication Date

2008

Publication Title

Duke Law Journal

Publication Title (Abbreviation)

Duke L.J.

Volume

57

First Page

1933

Last Page

2022

Abstract

This Article critiques the practice of limiting federal agency authority in the name of federalism. Existing limits 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.

Rights

©2008 Brian Galle and Mark Seidenfeld

Comments

First published in Duke Law Journal.

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