Administrative Federalism as Separation of Powers

Table of ContentsI. Introduction 173II. Structural Pluralism 179A. Origins 180B. Separation(s) of Powers 1831. Formalism vs. Functionalism: From Separation to Checks and Balances 1842. Administrative Checks and Balances: From Without and Within 185C. Federalism(s) 891. State Authority: Sovereignty, Autonomy, and Agency 1902. Institutional Deciders 194a. From Court to Congress 195b. From Congress to Agencies. 197D. Cross-Dimensional Structuralism. 201III. States in the Administrative State 208A. State Voice. 208B. State Autonomy. 211IV. What Administrative Federalism Can Do for Federalism(s) and Separation(s) of Powers 213A. Administrative Preemption 2161. Eliminating Administrative Preemption 219a. For Federalism 219b. For Separation of Powers 2212. Clear-Statement Rule 224a. For Federalism 225b. For Separation of Powers 273. Limiting the Types of Qualifying Agency Action 229a. For Federalism 229(1) Notice-and-Comment Rulemaking 231(2) Other Agency Action: Administrative Adjudication and Nonbinding Policies 235b. For Separation of Powers........238B. State Voice ........2451. For Federalism(s).......2462. For Separation of Powers.......247 a. Internal Checks-and-Balances: Agency Expertise ........248b. External Checks-and-Balances: Political Control .......250C. Cross-Dimensional Tradeoffs ........252V. Conclusion .......254I. IntroductionThis Article plies the cross-dimensional channels between federalism and separation of powers.1 More specifically, it provides the inaugural study of what a particularly salient brand of federalism-"administrative federalism"2-can do for a longtortured separation of powers around the administrative state.3Administrative federalism is partly a descriptive term for the role that agencies play in shaping the federal-state balance of power today. More so, however, administrative federalism is a visionary project designed to shape federalism's future through adjustments to the existing administrative system. Increasingly, agencies make front-line decisions about the scope of federal policy and whether such policy should preempt state law. But, at the heart of administrative federalism's prescriptive agenda are questions about how agencies might better fulfill these functions in pursuit of one, or some other, federalist ideal.4Some academic proposals for administrative federalism aim to enhance states' participatory role in administrative processes; for instance, by requiring agencies to consult state officials before taking action that might implicate state prerogatives.5 Other proposals work to protect state autonomy through adjustments to the Supreme Court's preemption doctrine; for instance, by limiting it or making it more difficult for agencies to preempt competing state law.6 As jurists and scholars debate what these and other proposals entail for federalism, this Article doubles-down with a twist: it examines what these same proposals entail for the federal separation of powers.Although administrative federalism may be a surprising source of separation-of-powers innovation, the administrative system is hardly in a position to reject the bid. It is common fare that agencies distort our three-branch model of federal government.7 Despite the Constitution's vesting of "all" legislative power in Congress,8 the Executive Branch (through agencies) makes the vast majority of federal law today.9 Moreover, many agencies combine lawmaking, executive, and judicial functions-a combination that James Madison decried as the "very definition of tyranny"10 and that arguably violates Articles I, II, and III of the Constitution simultaneously. …