The European Union: A Comparative Perspective

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental capacity to enforce the law as well as to tax and spend, and also because Europeans continue to identify primarily with their member states. The chapter also addresses two sets of questions about the EU’s future. One concerns the possibility of “creeping centralization” that one observes in the United States, and which one might also detect in the EU’s slogan of “ever closer union.” I argue that any such tendency will be limited by the fact that the modern regulatory and welfare bureaucracies that have spurred centralization in the America instead developed at the member state level in Europe, prior to the advent of the EU. I also consider the impact of exogenous shocks, especially the euro crisis but also parallel crises over migration and terrorism. The response to these crises so far seems to have strengthened the EU’s intergovernmental tendencies. Comparing Europe and the United States can provide helpful insights about both systems-and federal systems in general. As is often true, the primary value of comparative law here is in the questions it raises, not the answers it may provide. Many aspects of federalism taken for granted in one system are considered nonobvious or even controversial in the other, and an appreciation of this fact can enrich federalism debates on both sides of the Atlantic

A Research Agenda for Uncooperative Federalists

This paper was presented at the 2012 Legal Scholarship Symposium. The full video is available here

The Continuity of Statutory and Constitutional Interpretation: An Essay for Phil Frickey

This Essay seeks to honor Phil by exploring the contributions of his Legal Process approach to a problem near and dear to his heart: the uses and legitimacy of canons of statutory construction. I focus, as Phil did in his most recent work, on the canon of constitutional avoidance—that is, the rule that courts should construe statutes to avoid significant ―doubt as to their constitutionality. This Essay largely supports Phil‘s defense of the avoidance canon, but links that defense to another set of canons that Phil has criticized: the various clear statement rules of statutory construction that Phil and Bill Eskridge memorably labeled ―quasi-constitutional law. These rules require that Congress make its intent especially clear when it legislates in areas of particular constitutional sensitivity—for example, by intruding on the prerogatives of the states. This Essay proceeds in three parts. Part I develops two problems in statutory construction—the canon of constitutional avoidance and judge-made clear statement rules—by reference to some major cases decided in the Supreme Court‘s 2008 Term. Part II elaborates the Legal Process School‘s approach to these sorts of problems of canonical construction, with particular emphasis on Professor Frickey‘s work in this vein. Part III then develops the central Legal Process insight that rules of construction are part of constitutional interpretation as a means of interpreting and protecting the broader structural aspects of the Constitution, namely, federalism and separation of powers

United States v. Windsor and the Role of State Law in Defining Rights Claims

The Supreme Court’s recent decision in United States v. Windsor is best understood from a Legal Process perspective. Windsor struck down Section 3 of the federal Defense of Marriage Act (“DOMA”), which defined marriage as exclusively between a man and a woman for purposes of federal law. Much early commentary, including Professor Neomi Rao’s essay in these pages, has found Justice Kennedy’s opinion for the Court to be “muddled” and unclear as to its actual rationale. But the trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite evident on the face of Justice Kennedy’s opinion. The trouble is simply that it is not the rationale that many observers expected or wanted

Executive Preemption

Preemption of state regulatory authority by national law is the central federalism issue of our time. Most analysis of this issue has focused on the preemptive effects of federal statutes. But as Justice White observed in INS v. Chadha,“[f]or some time, the sheer amount of law . . . made by the [administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.” Whether one views this development as a “bloodless constitutional revolution” or as a necessary “renovation” of the constitutional structure in response to the complexity of modern society, the advent of the administrative state has profound implications for the Constitution’s core commitments to federalism and separation of powers in general and for preemption doctrine in particular. Specifically, preemption doctrine has yet to resolve the extent to which executive action should be treated differently from legislation, or to grapple with the considerable range of diverse governmental activities that march under the banner of executive agency action. Federal administrative action is, in important ways, considerably more threatening to state autonomy than legislation is. As the constitutional limits on national action fade into history, the primary remaining safeguards for state autonomy are political, stemming from the representation of the states in Congress, and procedural, arising from the sheer difficulty of navigating the federal legislative process. These safeguards have little purchase on executive action. The states have no direct role in the “composition and selection” of federal administrative agencies, and much of the point of such agencies is to be more efficient lawmakers than Congress. Agency action thus evades both the political and the procedural safeguards of federalism. It remains true, of course, that “an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it.” But as Colin Diver observes, “a defining characteristic of the administrative state [is] that most statutes are not direct commands to the public enforced exclusively by courts, but are delegations to administrative agencies to issue and enforce such commands.” Preemption doctrine has developed primarily as a doctrine of statutory construction, focused on the intent of Congress, and transporting that doctrine into the administrative law context raises a number of difficult problems of translation. The Supreme Court’s preemption jurisprudence, unfortunately, has tended to ignore these problems. Instead of structuring preemption doctrine to account for the distinct position and characteristics of administrative agencies, the Court has tended to say simply that “[f]ederal regulations have no less pre-emptive effect than federal statutes.” I try to do a little better than that in this Article by addressing two basic sets of problems. The first involves questions of interpretation arising from an agency’s determination that congressional action has preemptive effect. The most prominent issue here is whether, where Congress’s own preemptive intent is ambiguous, courts should defer to the agency’s conclusion that a statute preempts state law under Chevron U.S.A. Inc. v. National Resources Defense Council. Such deference would create an important exception to the normal presumption articulated most famously in Rice v. Santa Fe Elevator Corp. that statutory ambiguity is resolved in favor of preserving state regulatory authority. I argue that although courts may continue to defer to agency interpretations of what the relevant statute does,Chevron should not be construed to require similar deference to agency conclusions about the law’s preemptive effect. The second set of issues arises when preemption is asserted on the basis of regulations, orders, or other agency activity, rather than grounded in the relevant statute itself. These instances of preemption are problematic because they seem to shift preemptive authority from Congress to the agency—a result that contravenes both the text of the Supremacy Clause and the structural safeguards of federalism and separation of powers. As a result, I suggest that we may wish to restrict the agencies’ role in preemption to interpreting what Congress has done. Failing that, however, I suggest a series of possible limiting principles, each of which would restrict administrative preemption to at least some extent beyond present law. My discussion proceeds in three parts. Part I offers a brief account of preemption doctrine and situates the issue of executive preemption within that account. Part II addresses the question of statutory interpretation and deference. Part III then turns to the independent preemptive force of agency action