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Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules be read broadly to include the authority to declare state law preempted if the agency views that as an appropriate way to implement the program? (I have previously argued for both limited deference and a presumption against agency preemption.) Galle and Seidenfeld argue for the superiority of agency decisionmaking because, as a formal matter, it may be comparatively transparent and accountable. An agency, unlike Congress, must comply with notice and comment requirements, at least for rulemaking, and must explain its reasons for taking an action on judicial review. Galle and Seidenfeld suggest that agency preemption decisions might be even better reasoned if the judiciary engaged in a harder “hard look” on judicial review. As a preliminary matter, I want to point out that the level of agreement among commentators writing in this area is striking. Professors Galle, Seidenfeld, Catherine Sharkey, Thomas Merrill, and I all agree that agencies should not be categorically prohibited from preempting state law. We agree further that agencies have valuable information to offer about how a particular federal program functions, the issues it is designed to address, and how regulated entities may fare if faced with multiple standards. Finally, however—and despite Galle and Seidenfeld’s claims on behalf of agency decisionmaking—we apparently also agree that more controls are needed on agency interpretations that preempt state law than can be provided by the Chevron doctrine alone. Under that doctrine, courts uphold a “reasonable” agency interpretation of ambiguous statutory language. No one wants to give away the store here.

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This work is licensed under a Creative Commons Attribution-Noncommercial 3.0 License