Restoring the Rule of Law
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) In explaining the need for that federal power, Madison explained:
Experience had evinced a constant tendency in the States to encroach on the federal authority; to violate national Treaties, to infringe the rights & interests of each other; to oppress the weaker party within their respective jurisdictions. A negative was the mildest expedient that could be devised for preventing these mischiefs.2)
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) 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) In the end, the proposal to give Congress a running veto over all state laws failed.5)
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) 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:
The Congress are therefore vested with the supreme legislative power, without controul. In giving such immense, such unlimited powers, was there no necessity of a bill of rights to secure to the people their liberties? Is it not evident that we are left wholly dependent on the wisdom and virtue of the men who shall from time to time be the members of Congress? [A]nd who shall be able to say seven years hence, the members of Congress will be wise and good men, or of the contrary character. 7)
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) Madison echoed that point by emphasizing that the Supremacy Clause would protect “the new Congress.” 9)
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) Madison went on:
The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them.11)
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)
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) 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) 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) As Blackstone explained:
By the statute 31 Hen. VIII c.8 it was enacted, that the king's proclamations should have the force of acts of parliament: a statute, which was calculated to introduce the most despotic tyranny; and which must have proved fundamental to the liberties of this kingdom, had it not been luckily repealed . . . about five years after.16)
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)
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)
The Supreme Court confessed that Congress did not preempt Ms. Geier's suit.19) 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,“ 20) 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.” 21) 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.” 22)
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.23). 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).))