Restoring the Rule of Law

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II. THE PRESIDENT

C. The Solution: Non-Preemption

The Texas Plan would prevent administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.

Preemption exacerbates the problems associated with the administrative state. “Preemption” refers to the idea that when federal law and state law conflict, the former trumps—that is, preempts—the latter. The general proposition that federal law would be supreme to state law attracted no recorded opposition at the constitutional convention. But the Framers would be shocked to learn that state law also has to yield to the policy positions of unelected bureaucrats working at federal administrative agencies.

At the constitutional convention, the original draft of the Supremacy Clause would have given Congress a veto over any and all state laws. James Madison reports it this way: “Resolved . . . that the national Legislature ought to be empowered . . . to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union.” 1) Records of the Federal Convention (reprinted in 4 FOUNDERS' CONSTITUTION 592). In explaining the need for that federal power, Madison explained:

2) Id. at 593.

But Madison lost that debate. The constitutional convention instead sided with Elbridge Gerry, a delegate from Massachusetts who had previously served in the First and Second Continental Congresses as well as the Confederation Congress. Gerry argued that ”[t]he Natl. Legislature with such a power may enslave the States. Such an idea as this will never be acceded to.“ 3) Ibid.,…. Likewise, Gunning Bedford, a delegate to the constitutional convention from Delaware, opposed it because he thought large States like Pennsylvania and Virginia would use their greater numbers in Congress to oppress and veto laws from smaller States like Delaware: “It seems as if Pa. & Va. by the conduct of their deputies wished to provide a system in which they would have an enormous & monstrous influence.” 4) Id. at 594. In the end, the proposal to give Congress a running veto over all state laws failed.5) Id. at 594-95.

The Framers settled instead on a more modest preemption of state law. The Supremacy Clause as they adopted it reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 6) U.S. CONST. art. VI, cl. 2. But even that more-modest version of the Supremacy Clause concerned many because it prohibited States—and people acting through their States—from checking Congress's exercises of federal power. An Old Whig argued:

7) An Old Whig No. 2 (reprinted in 4 FOUNDERS' CONSTITUTION 598).

The Framers responded to those concerns in two ways. First, Hamilton dismissed criticisms of the Supremacy Clause as “virulent invective and petulant declamation” because the only supreme law are those passed by ”the national legislature.“ 8) Federalist No. 33 (Hamilton), at 201 (emphasis added). Madison echoed that point by emphasizing that the Supremacy Clause would protect “the new Congress.” 9) THE FEDERALIST No. 44 (Madison), at 284.

And second, because the Supremacy Clause applied only to acts of Congress, the States would be protected by their representatives in Congress. This was another recurring theme in the Framers' views of the relationship between States and the federal government—namely, that the members of Congress would be constantly thinking about ways to advance the States' prerogatives, not to undermine them. As Madison put it in the Federalist, “A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States.” 10) THE FEDERALIST No. 46 (Madison), at 296. Madison went on:

11) THE FEDERALIST No. 45 (Madison), at 291.

The constitutional scholar Herbert Wechsler later termed this idea the “political safeguards of federalism” because the States' political representatives in Congress would ensure that federal law did not trample on States' rights.12) Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).

But what about administrative agencies, the proverbial alphabet soup of agencies, commissions, and boards that are directly accountable only to the President? Or worse, what about the so-called “independent” administrative agencies that are accountable to no elected official, not even the President? 13) There are myriad examples of such “independent” agencies, which purport to exercise the President's powers to enforce federal law even without being accountable to the President. Examples include the CIA, FTC, NLRB, SEC, SSA, and the USPS. The Supreme Court long ago held that the Constitution allows the creation and existence of these agencies. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). Given how much attention the Framers paid to protecting state law and ensuring that it was not unduly preempted by Congress, it would be strange for them to allow mere bureaucracies to preempt state law. And it would be particularly odd for the Framers to allow bureaucratic preemption given that the Supremacy Clause itself makes no mention of administrative agencies.

In fact, as noted above,14) See supra note 94, and accompanying text. administrative agencies are mentioned nowhere in the Constitution. Indeed, administrative agencies as we now understand them did not even exist when the Constitution was written. The closest analogue would be executive decrees by the president or a king—and Founding-era documents very clearly refute the idea that the Framers would have afforded supreme law-like effect to executive proclamations.15) Indeed, Professor Hamburger explains that the Framers adopted the Constitution precisely because they wanted to prohibit as unlawful such executive decrees. See HAMBURGER, supra note 94, at 7-8. As Blackstone explained:

16) 1 WILLIAM BLACKSTONE, COMMENTARIES 261.

The notable constitutional scholar and Supreme Court Justice Joseph Story made the same point more directly: Actions of the Federal Government “which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies,” are not “the supreme law of the land. They will be merely acts of usurpation, and will deserve to be treated as such.” 17) 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1831, at 694 (1833).

Notwithstanding all of the Framers' attention to the topic and careful delineation of Congress's power to preempt state law, courts today nevertheless allow administrative agencies to exercise that power too. For example, in 1984, the Department of Transportation promulgated a regulation with a name that only a bureaucrat could love: “FMVSS208.” The FMVSS208 regulation gave carmakers a choice whether to install airbags in their passenger vehicles. Honda chose not to install airbags in their 1987 Accords, in accordance with the FMVSS208 rule. When a woman named Alexis Geier was injured while driving a 1987 Accord, she sued Honda under state law.18) Geier v. American Honda Motor Company, 529 U.S. 861 (2000).

The Supreme Court confessed that Congress did not preempt Ms. Geier's suit.19) Id. at 867-68. In that sense, the political safeguards of federalism worked. The States' elected lawmakers defended the States' prerogatives and ensured that their statute did not displace state law. That result suggests Madison was right that ”[a] local spirit will infallibly prevail [on] the members of Congress,“ 10) who will avoid preempting state law where possible.

But the Geier case did not end there. After determining that Congress's statute did not preempt state law, the Court then asked whether the Department of Transportation's rule (FMVSS208) preempted state law. And on that question, the Court determined that state law was an “obstacle” to the administrative agency's “purposes and objectives.” 20) Geier, 529 U.S. at 885-86. In particular, the Court determined, DOT wanted to give carmakers a choice whether to install airbags, whereas Geier's state-law tort suit wanted to deprive carmakers of that choice. Faced with that tension—between the state laws enacted by a sovereign State and the policy preferences of unelected bureaucrats at DOT—the Supreme Court of the United States determined that the latter must trump.

The Framers would be shocked by that result. Indeed, in many ways, it is worse than the version of the Supremacy Clause that the Framers rejected. If Congress had a running opportunity to preempt any and all state laws, at least the relevant decision-makers would be electorally accountable lawmakers. But under Geier, an administrative agency can preempt the laws of a sovereign State using only “agency musings, [which] do not satisfy the [Constitution's] requirements for enactment of federal law.” 21) Id. at 587 (Thomas, J., concurring in judgment).

The Texas Plan would prevent that result. It would amend the Supremacy Clause to make plain that the only things that preempt state law are the statutes that members of Congress actually vote on, pass, and present to the President for his signature. Limiting preemption to real federal laws—as opposed to the policy preferences of federal bureaucrats—comports with the original meaning of the Constitution. And it also treats States and state law with the dignity that the Framers always intended to afford them.22) As Justice O'Connor has explained: State legislative and administrative bodies are not field offices of the national bureaucracy. Nor are they think tanks to which Congress may assign problems for extended study. Instead, each State is sovereign within its own domain, governing its citizens and providing for their general welfare. While the Constitution and federal statutes define the boundaries of that domain, they do not harness state power for national purposes. The Constitution contemplates an indestructible Union, composed of indestructible States, a system in which both the State and National Governments retain a separate and independent existence. FERC v. Mississippi, 456 U.S. 742, 777-78 (1982) (O'Connor, J., dissenting) (internal quotation marks omitted). This facet of the Texas Plan also would harmonize the doctrine of preemption, in which Geier always has been somewhat anomalous. For example, the Supreme Court often emphasizes: ”In all pre-emption cases, and particularly in those in which Congress has 'legislated . . . in a field which the States have traditionally occupied,' . . . we 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'“ Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (emphasis added; quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947 . Given that “all preemption cases” should turn on clear statements from Congress, it makes little sense to allow administrative agencies to preempt state law without any statement from Congress (let alone a clear one).))

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