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Administrative Federalism as Separation of Powers


David S. Rubenstein


June 9, 2015

Federal agencies are key players in our federalist system: they make front-line decisions about the scope of federal policy and whether such policy should preempt state law. How agencies perform these functions, and how they might fulfill them better, are questions at the heart of “administrative federalism.” Some academic proposals for administrative federalism work to enhance states’ ability to participate in federal agency decisionmaking. Other proposals work to protect state autonomy through adjustments to the Supreme Court’s administrative preemption doctrine. As jurists and scholars debate what these proposals entail for federalism, this Article doubles-down with a twist: it examines what these same proposals can do for separation of powers.

As uncovered here, adjustments to the administrative system—although made in federalism’s name—will derivatively affect how national law is made and checked along the separation-of-powers dimension. Moreover, as shown here, federalism-inspired proposals for the administrative system may require a tradeoff in constitutional values. Pushed to decide, we might choose federalism over separation of powers, or vice versa. This Article informs that choice by comparing and contrasting what administrative federalism’s major proposals entail for federalism and separation of powers, simultaneously.


David S. Rubenstein, Administrative Federalism as Separation of Powers, 72 Wash. & Lee L. Rev. 171 (2015).