The State Attorney General and Preemption

Abstract

According to National Association of Attorneys General, the rise of of state laws and regulations by federal administrative agencies, rather than directly by is [p]erhaps most significant development in federal in last several decades. This kind of is typically claimed in an ruling or regulation declaring certain state laws or activities preempted, even though underlying statute says nothing about in those areas. That an association of state attorneys general would view agency preemption as particularly worrisome is hardly surprising: 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 agency's action.This paper, which will appear as a chapter in a book on edited by William Buzbee and to be published by Cambridge University Press, examines implications of for state attorneys general, and vice versa. Its principal intended audience is not so much courts as Congress and federal agencies; its prescriptions are less about judicial doctrine (though there are implications along those lines) than about choices legislature and agencies could make to better accommodate important functions of democratically accountable state attorneys general. As to Congress, I suggest that it should directly address whether any or all of work of state attorneys general should be preempted by any particular enactment it passes, and should include a provision making clear extent of its intent to preempt. As to agencies, I suggest that, in absence of clear statutory language addressing question, they should be reluctant to promulgate regulations preempting investigatory or enforcement authority of state attorneys general. Unlike Supreme Court's current presumption against preemption, approach I advocate does not turn on particular subject matter of state or federal law in question. Instead, it focuses on identity of actor enforcing state law.