Document Type
Brief
Publication Date
1-25-2017
Abstract
Amici law professors (listed in Appendix A) are leading scholars and teachers of constitutional and administrative law who submit this brief in their individual capacities, not on behalf of their institutions. They study and write on federal preemption of state law, including the ways in which courts can and should discipline agencies to consider federalism values. Amici have an interest in promoting judicial review that requires agencies to take state regulatory interests seriously when their rules would preempt state law. Amici submit this brief to demonstrate that Petitioner's view of judicial deference to agency preemption would encourage agencies to ignore state interests when adopting broad interpretations of federal statutes to preempt state law.
Amici have a range of views on how federalism affects the analysis required by Chevron U.S.A. Inc. v. Natural Res. Defi Council, Inc., 467 U.S. 837 (1984). But all agree that agency preemption is not subject to ordinary Chevron deference without close judicial review of the agency's interpretation or consideration of the presumption against preemption. Some amici would place questions of preemption outside Chevron's domain unless Congress has expressly authorized an agency to interpret a preemption provision. Thus, agency positions on federalism would be treated only under the regime of Skidmore v. Swift, 323 U.S. 134 (1944). Other amici would require agencies to consider federalism, subject to searching judicial review of the quality of the agency's decisionmaking at Chevron Step Two or under arbitrary-and-capricious review. Amici share the concern that any framework for judicial review of agency preemption must ensure that the usual balance between state and federal authority is respected; this includes acknowledgment that Congress should be clear when it chooses to displace state law. But Petitioner's proposed framework would effectively eliminate that presumption against preemption whenever an agency interprets an express preemption provision. This broad view of agency authority is not mandated by this Court's precedents and risks disrupting the constitutional distribution of federal and state authority.
Recommended Citation
Mendelson, Nina A., "Coventry Health Care, Inc. v. Nevils: Brief of Amici Curiae Constitutional and Administrative Law Scholars in Support of Respondent" (2017). Appellate Briefs. 32.
https://repository.law.umich.edu/briefs/32
Comments
Amicus: Camacho, Professor Alejandro E.; Chemerinsky, Professor Erwin; Coenen, Professor Michael; Davis, Professor Seth; Jacobs, Professor Sharon; Mashaw, Professor Jerry L.; McGarity, Professor Thomas O.; Mendelson, Professor Nina; Shapiro, Professor Sidney; Vladeck, Professor David; Young, Professor Ernest A.