The State Attorney General and Preemption
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Description
According to the National Association of Attorneys General (NAAG), ‘‘the rise of preemption of state laws and regulations by federal administrative agencies, rather than directly by Congress’’ is ‘‘[p]erhaps the most significant development in federal preemption in the last several decades.’’1 This kind of preemption is typically found in an agency ruling or regulation declaring certain state laws or activities preempted, even though the underlying statute is silent on the issue. That NAAG would view ‘‘agency preemption’’ as particularly worrisome is hardly surprising: the main casualties are often state attorneys general, whose broad investigative and enforcement powers under state consumer protection, health, environmental, and other state laws are displaced by the agency’s action. This chapter examines the implications of agency preemption for state attorneys general, and vice versa. Its principal intended audience is not so much the courts as Congress and the federal agencies; its prescriptions are less about judicial doctrine (though there are implications along those lines) than about choices the legislature and agencies could make to better accommodate the important functions of state attorneys general. Congress, I suggest, should directly address whether any or all of the work of state attorneys general should be preempted by any particular enactment it passes and should include provisions making clear the extent of its intent to preempt. In the absence of clear statutory language addressing the question, I argue that agencies should be reluctant to promulgate regulations preempting the investigative or enforcement authority of state attorneys general. Unlike the Supreme Court’s current ‘‘presumption against preemption,’’ the approach I advocate does not focus on the particular subject matter of the state or federal law in question. Instead, it focuses on the identity of the actor enforcing the state law. Given the electoral accountability of most state attorneys general and their long-standing mandates to enforce state laws in pursuit of the public interest, I suggest that unelected federal agencies should be particularly reluctant, absent a clear statutory mandate, to displace the work of state attorneys general. Instead, federal law should preempt the work of state attorneys general only by express statutory language. To get to those prescriptions, Part I first provides a brief overview of the federalism-related values that bear most directly on state attorneys general. Part II then introduces the state attorney general, emphasizing that most states’ versions of this office are directly elected and that they typically wield broad authority not only to litigate in the public interest but also to monitor compliance with both state and federal law. As Part III describes, however, the courts’ current preemption doctrine takes no special account of state attorneys general. In addition, judicial preemption doctrine is sufficiently malleable and unpredictable that it can be difficult to know when, and why, the actions of state attorneys general will be preempted. Although it is certainly possible that the courts could improve their doctrine in this area, a more direct approach would be for Congress and federal agencies themselves to take account of the state attorney general. Part IV proposes that they do just that. Finally, Part V identifies and responds to a potential objection.
Source Publication
Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question
Source Editors/Authors
William W. Buzbee
Publication Date
2008
Recommended Citation
Morrison, Trevor W., "The State Attorney General and Preemption" (2008). Faculty Chapters. 1992.
https://gretchen.law.nyu.edu/fac-chapt/1992
