ADMINISTRATIVE LAW REVIEW V olume 63 Fall 2011 Number 4 ARTICLES Calibrating Chevron for Preemption .................... Gregory M. Dickinson 667 A Cost–Benefit Interpretation of the “Substantially Similar” Hurdle in the Congressional Review Act: Can OSHA Ever Utter the E-Word (Ergonomics) Again? ............................. Adam M. Finkel 707 Jason W. Sullivan Fixing the Flaws in the Federal Vaccine Injury Compensation Program ........................................... Peter H. Meyers 785 COMMENT Setting Labor Policy Prospectively: Rulemaking, Adjudicating, and What the NLRB Can Learn from the NMB’s Representation Election Procedure Rule ........................ Emily Baver 853 RECENT DEVELOPMENTS Legal Issues in E-Rulemaking .............................. Bridget C.E. Dooling 893 A Regulatory Quick Fix for Carcieri v. Salazar: How the Department of Interior Can Invoke an Alternative Source of Existing Statutory Authority to Overcome an Adverse Judgment Under the Chevron Doctrine .............................. Howard L. Highland 933 ADDRESS Mr. Justice Marshall Rothstein, Supreme Court of Canada, to the American Bar Association, Section of Administrative Law and Regulatory Practice ........................................................................ 961 ADMINISTRATIVE LAW REVIEW V olume 63 Fall 2011 Number 4 Editor in Chief Stacy L.Z. Edwards Executive Editor Managing Editor Keeley McCarty Brittany Ericksen Senior Recent Senior Senior Note & Senior Developments Editor Articles Editors Comment Editor Symposia Editor Emily Baver Aaron M. Moore Shannon L. Cain Jonathan Stroud Tom Rath Articles Editors Note & Comment Editors Sarah Fech Christina Andreen Carolyn Lindley David Van Fleet Bloys Amanda Lutz Aaron V. Gleaton Gregory M. Reyes Edward J. Uliassi Michael T. Vasquez Katherine A. Weatherford Topic and Trends Managers Jessica Buonaccorsi Kimberly Payne Senior Staff Katherine Aljinovic Brenda A. González Sapna Mehta Patrick Schultz Alexander Bard Elizabeth F. Jackson Diana M. Pak Yi Elizabeth S. Shen Kristan Callahan Harrison Kang Amanda K. Patton Ann Slacter Lauren Caplan Maanasa Kona Chris Pepe Sarah V. Stanley Robert D. Cardina Erin Kuhls Ricardo L. Piereck Dennis Tristani Sarah Chiang Priya Lamba Jennifer Ponder Sean S. Tshikororo Whitney A. Evans Erika Leighton Nicole Provo Brandon L. Wright Jonathan Harnois Alexander Lutch Lucia Rich Miras Junior Staff Marlene Ailloud Jann Futterman Roxanne Melvin Brett Seifried John S. Albanes Whitney Garrett Ty Moore Christopher Shannon Schuyler Armstrong Stephanie Grimaldi Preethi Nand Karina Sigar Michael Becker Michael Gropper Jason Navia Daniel Sox Samina M. Bharmal Ty Halasz Ellis Palividas Elly Steiner Timothy J. Callery Rosalee Hoffman Matthew L. Peterson Bryan Thurmond Candice Chan Chelsey Iaquinto Shannon Ramirez Erica Tokar Katherine Chau Talya Janoff Gregory Reed Timothy Valley Jaewoo Cho Virginia Knapp Dorell John P. Rezai Rachael Vieder Marcella Coyne Sarah Leggin Katheryn Rizzo Cynthia Wildfire Tess Dillon Melissa Lim Jess Robinson Shannon Zeigler Brandon Marsh Katrin Schulz Faculty Board Andrew F. Popper, Chair Gary J. Edles Jeffrey S. Lubbers William J. Snape, III Paul F. Figley Adeen Postar Anthony E. Varona Lewis A. Grossman Jamin B. Raskin Robert G. Vaughn Benjamin Leff Stephen J. Wermiel Coordinator, Law Reviews Sharon E. Wolfe ADMINISTRATIVE LAW REVIEW V olume 63 Fall 2011 Number 4 ARTICLES Calibrating Chevron for Preemption .................... Gregory M. Dickinson 667 A Cost–Benefit Interpretation of the “Substantially Similar” Hurdle in the Congressional Review Act: Can OSHA Ever Utter the E-Word (Ergonomics) Again? ............................. Adam M. Finkel 707 Jason W. Sullivan Fixing the Flaws in the Federal Vaccine Injury Compensation Program ........................................... Peter H. Meyers 785 COMMENT Setting Labor Policy Prospectively: Rulemaking, Adjudicating, and What the NLRB Can Learn from the NMB’s Representation Election Procedure Rule ........................ Emily Baver 853 RECENT DEVELOPMENTS Legal Issues in E-Rulemaking .............................. Bridget C.E. Dooling 893 A Regulatory Quick Fix for Carcieri v. Salazar: How the Department of Interior Can Invoke an Alternative Source of Existing Statutory Authority to Overcome an Adverse Judgment Under the Chevron Doctrine .............................. Howard L. Highland 933 ADDRESS Mr. Justice Marshall Rothstein, Supreme Court of Canada, to the American Bar Association, Section of Administrative Law and Regulatory Practice ........................................................................ 961 1 DICKINSON.DOCX 12/1/2011 4:30 PM ARTICLES CALIBRATING CHEVRON FOR PREEMPTION GREGORY M. DICKINSON* TABLE OF CONTENTS Introduction ............................................................................................... 668 I. The Chevron–Preemption Clash ....................................................... 671 A. Federal Preemption of State Law ............................................ 671 B. The Presumption Against Preemption .................................... 672 C. The Chevron Doctrine ............................................................... 674 D. Indeterminacy and Incompatibility: Canons as Rules of Thumb ..................................................... 675 E. Defeasibility, Conflict, and Chevron .......................................... 678 II. The Court’s Chevron–Preemption Jurisprudence ............................. 680 A. Doctrinal Inconsistency and Unpredictable Decisions ............ 680 B. Explaining the Court’s Haphazard Approach ......................... 682 1. Sidestepping the Danger of Conflicting-Canon Gridlock .............................................. 682 2. Selective Use of the Presumption Against Preemption ...... 684 3. Varying Deference to Agency Determinations .................. 685 4. The Chevron–Mead Failure .................................................. 686 III. Unmuddling the Court’s Chevron–Preemption Jurisprudence ......... 689 A. A Bright-Line Alternative to the Court’s Haphazardry ........... 690 B. Respecting Congressional Intent and State Sovereignty ......... 691 C. Consistency with Chevron’s Rationale and Reconciliation of Conflicting Canons .............................................................. 696 * Associate, Ropes & Gray, LLP; J.D., Harvard Law School; B.S., Houghton College. Thanks to John Manning and Matthew Stephenson for helpful comments on an earlier draft. 667 1 DICKINSON.DOCX 12/1/2011 4:30 PM 668 ADMINISTRATIVE LAW REVIEW [63:4 D. A Narrow and a Broad Framework for Implementation ........ 700 1. A Mead-Like Delegation Rule ............................................ 700 2. A Chevron-Based Delegation Rule ....................................... 701 3. Contrasting the Approaches .............................................. 703 Conclusion ................................................................................................. 705 INTRODUCTION For years now, courts and commentators have struggled to reconcile the presumption against preemption—the interpretive canon that presumes against federal incursion into areas of traditional state sovereignty—with the Court’s Chevron doctrine, which instructs courts to defer to reasonable agency interpretations of ambiguous federal statutes. Where Congress’s preemptive intent is ambiguous, should courts defer to agency interpretations under Chevron, or do preemption’s federalism implications demand a less deferential approach? Despite numerous opportunities, the Supreme Court has failed to clearly define the level of deference due to preemptive agency interpretations.1 In some cases the Court appears quite deferential and in others almost entirely nondeferential. Academic treatment of the Court’s jurisprudence has been rightly critical. The Court’s unpredictable approach sows uncertainty among regulated parties, the lower courts, and the agencies themselves. As alternatives to the Court’s current case-by-case approach, commentators have advocated a variety of more rule-like regimes: universal nondeference, universal Chevron deference, and, most commonly, universal Skidmore deference.2 Advocates of across-the-board nondeference point to the lack of political and procedural safeguards protecting states from agency- 1. See, e.g., Riegel v. Medtronic, Inc., 128 S. Ct. 999, 1010–12 (2008); Watters v. Wachovia Bank, N.A., 550 U.S. 1, 20–21 (2007) (noting but failing definitively to resolve the “academic question” of what deference is owed to an agency’s preemption determination). 2. See Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 797–800 (2004) (suggesting a regime of lower, Skidmore-style deference as an alternative to the Chevron doctrine); Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727, 729 (2008) (suggesting significant deference to agency assessments of the need for federal preemption); Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 GEO. WASH. L. REV. 449, 491–98 (2008) (suggesting a Skidmore-like regime in which, though courts do not defer to agency conclusions regarding preemption, they recognize agencies’ superior ability to supply and analyze empirical data relevant to the desirability of a uniform federal regulatory system); Ernest A. Young, Executive Preemption, 102 NW. U. L. REV. 869, 871 (2008) (suggesting that the Chevron doctrine should give way in the face of the constitutionally grounded presumption against preemption); The Supreme Court, 2008 Term— Leading Cases, 123 HARV. L. REV. 262, 271–72 (2009) (dicussing Wyeth v. Levine and suggesting that a Chevron-based regime would most appropriately recognize agency expertise). 1 DICKINSON.DOCX 12/1/2011 4:30 PM 2011] CALIBRATING CHEVRON FOR PREEMPTION 669 initiated preemption.3 Those advocating across-the-board Chevron deference, on the other hand, point to agencies’ technical expertise on preemption questions and the availability of the Mead doctrine as a screen to protect the values of federalism where agencies act other than with the force of law.4 Finally, a third set of commentators attempts to reconcile these competing approaches by adopting a middling standard of Skidmore deference based on the thoroughness and persuasiveness of an agency’s judgment in a particular case.5 Thus far, none of these approaches have tempted the Court. Instead, the Court continues to apply deference haphazardly from case to case with no clearly articulated reason for its variation. A close study of the cases, however, reveals both why the Court has been reluctant to adopt any of the proposed across-the-board standards of deference and what an appropriate framework for agency deference might look like. The Court’s inconsistent decisionmaking stems from its high regard for congressional intent when considering questions that implicate federalism. Chevron and the presumption against preemption provide conflicting indicia of congressional intent, and rather than universalize one principle at the expense of the other, the Court has applied deference selectively depending on its case-specific analysis of congressional intent. When the Court thinks it reasonable to presume delegation of preemptive authority, it is quite deferential to agency views. But, when it thinks congressional intent to delegate is unlikely, it accords little deference to preemptive agency interpretations. Critics of the Court’s Chevron–preemption jurisprudence correctly note its major flaw—its inconsistency—but they fail to recognize its purpose and benefits. By looking to congressional intent rather than universalizing a sometimes-inapplicable, across-the-board rule, the Court respects 3. See, e.g., Young, supra note 2, at 869 (“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.”). 4. See, e.g., Leading Cases, supra note 2, at 272 (“[W]hile there are enduring concerns with respect to agency interpretation of preemption questions, the traditional Chevron/Mead deference framework can address these concerns, with no need for a singular approach for preemption questions. Bringing the doctrine in this area in line with the overall agency deference approach promises . . . to take advantage of agency interpretive strengths . . . .”). 5. See, e.g., Mendelson, supra note 2, at 797–800 (suggesting that although full Chevron- style deference is inappropriate in the preemption context, agencies’ expertise in interpreting and administering complex regulatory statutes counsels in favor of Skidmore deference); Sharkey, supra note 2, at 491–98 (suggesting a Skidmore-like regime because of agencies’ peculiar competency to interpret the complexity of the statutes that they administer). 1 DICKINSON.DOCX 12/1/2011 4:30 PM 670 ADMINISTRATIVE LAW REVIEW [63:4 congressional intent where it intends to delegate preemptive authority, while protecting state sovereignty where it does not. Of course, the Court’s good intentions do not excuse the approach’s unpredictability. A superior approach would package the Court’s concern for state sovereignty and congressional intent into a predictable and easily administrable bright-line rule. The Court’s existing doctrinal distinction between express and implied preemption points to a possible solution. In express preemption cases, the Court does not need to enforce federalism values through the presumption against preemption because Congress has spoken clearly in favor of displacing state law. And if the scope of preemption is ambiguous, Chevron’s presumption of delegation through ambiguity to agency expertise is entirely reasonable. Agencies are quite competent to decide the proper scope of preemption once Congress has duly authorized it. On the other hand, where Congress has not spoken clearly through an express preemption clause, and the question is whether there is to be any preemption at all, Chevron’s rationale is particularly weak. Agencies are least competent when considering unbounded questions of federal–state power allocation, and Congress is unlikely to delegate authority of this sort. Given the waxing and waning force of Chevron’s rationale across cases, the Court should adopt a rule of variable deference that accords full Chevron-style deference to agency interpretations of ambiguously broad express preemption clauses and withholds deference altogether where Congress is silent regarding preemption. Such a rule, unlike any of the proposed across-the-board regimes, would recognize the factors that underlie the Court’s unpredictable case-by-case approach—respect for state sovereignty and congressional intent—while providing the rule-like certainty demanded by the Court’s critics. Part I presents a brief overview of current preemption law and the conflicting rationales underlying the Chevron doctrine and the presumption against preemption. Part II closely examines the Court’s recent case law and concludes that the Court’s inconsistency stems from its direct scrutiny of legislative intent. Because of its effort to respect federalism values while sidestepping the conflicting canons, the Court’s analysis has descended to an unpredictable case-by-case search for congressional intent. Part II also explains why no regime of uniform, across-the-board deference can adequately account for the Court’s concerns: Chevron’s presumption of congressional delegation applies in some cases more than others. Finally, Part III presents a framework for deference in Chevron–preemption cases that conditions deference, in rule-like fashion, on the presence of an express preemption clause—accounting for congressional intent to delegate while ensuring predictability. 1 DICKINSON.DOCX 12/1/2011 4:30 PM 2011] CALIBRATING CHEVRON FOR PREEMPTION 671 I. THE CHEVRON–PREEMPTION CLASH To evaluate the Court’s handling of the conflict between Chevron and the presumption against preemption, it is useful first to pause and consider the rationales underlying those doctrines and the current state of preemption law generally. A. Federal Preemption of State Law Congress’s power of preemption, rooted in the Supremacy Clause of the Constitution,6 permits federal law to trump state law where it is undesirable or impossible for two independent legal regimes to coexist. The Supreme Court has recognized two primary categories of preemption: express and implied.7 Express preemption occurs where a federal statute expressly withdraws regulatory power over a particular area of law from the states.8 Express preemption doctrine therefore involves the difficult but familiar judicial task of determining the intended preemptive reach of statutory language.9 Implied preemption is subdivided into two types: field preemption and conflict preemption.10 Field preemption occurs where a federal regulatory regime is so pervasive as to imply that Congress intended to occupy an entire field of the law, leaving no room for states to supplement that federal regulation.11 Similarly, but on a smaller scale, 6. U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). 7. See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (“Pre-emption may be either expressed or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’” (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977))). 8. Caleb Nelson, Preemption, 86 VA. L. REV. 225, 226–27 (2000). 9. See id. (explaining that judges faced with an express preemption clause must determine both the meaning of the clause and whether the Constitution allows Congress to forbid the states from exercising the powers in question); Daniel E. Troy & Rebecca K. Wood, Federal Preemption at the Supreme Court, 2007–2008 CATO SUP. CT. REV. 257, 258 (2008). 10. Gade, 505 U.S. at 98. 11. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (“In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field ‘as to make reasonable the inference that Congress left no room for the States to supplement it.’” (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (“[I]n the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively.”); see also Nelson, supra note 8, at 227. 1 DICKINSON.DOCX 12/1/2011 4:30 PM 672 ADMINISTRATIVE LAW REVIEW [63:4 conflict preemption occurs where, though Congress has demonstrated no intent to occupy an entire field of law, federal law conflicts with a particular state law.12 This conflict may take either of two forms: First, state law will be preempted “where it is impossible for a private party to comply with both state and federal law.”13 Second, state law will also be preempted where, though it is not literally impossible to comply with both state and federal law, state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”14 This taxonomy of preemption yields four fundamental varieties: express preemption, field preemption, impossibility preemption, and obstacle preemption. Though this Article will not dwell on the nuanced distinctions among the doctrines, it is important at the outset to recognize the basic distinction between express and implied varieties of preemption. The Court is much more skeptical of implied preemption claims than it is of express preemption claims,15 and that skepticism factors heavily in its treatment of agency determinations for or against preemption.16 B. The Presumption Against Preemption Regardless of the particular preemption doctrine involved, preemption questions are enormously important. The extent to which federal law displaces state law determines the legal regime or regimes under which particular cases will be decided and, more broadly, the balance of power between the states and the federal government.17 Overpreemption threatens to extinguish the states’ traditional sovereign roles as checks on federal power and guarantors of individual rights,18 while underpreemption 12. See Nelson, supra note 8, at 228. 13. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372–73 (2000); see, e.g., Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963) (upholding a California statute where dual compliance with both state and federal law was possible). 14. Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). 15. See id. at 714 (noting that a defendant advancing an argument of implied preemption “faces an uphill battle”); Mary J. Davis, The Battle over Implied Preemption: Products Liability and the FDA, 48 B.C. L. REV. 1089, 1132–33 (2007) (arguing that the Supreme Court demands strong clear evidence of implied conflict because it is a weak substitute for congressional intent). 16. See infra Part II.B. 17. Nelson, supra note 8, at 225–26. 18. See Betsy J. Grey, Make Congress Speak Clearly: Federal Preemption of State Tort Remedies, 77 B.U. L. REV. 559, 613–18 (1997) (arguing that overpreemption threatens states control over tort law); Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 16–18 (2007) (arguing that Congress has institutional tendencies to defer politically sensitive issues to bureaucratic resolution and that less 1 DICKINSON.DOCX 12/1/2011 4:30 PM 2011] CALIBRATING CHEVRON FOR PREEMPTION 673 threatens the efficiency provided by uniform federal regulatory schemes.19 And of course, in any given case, the parties will have their own self- interested views on the proper law to apply as well. Recognizing the delicacy and importance of preemption questions, the Supreme Court has generally applied a presumption against preemption of state law, requiring from Congress a clear statement of intent to preempt before it is willing to find state law preempted by a federal statute.20 The Court’s classic statement of the principle is found in Rice v. Santa Fe Elevator Corp.21: “[W]e start with the assumption that the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress.”22 This presumption, which effectively forces congressional deliberation by requiring an explicit preemption clause or its equivalent, can be justified under a number of theories. First, the presumption represents an embrace of federalism values and a reluctance to risk incidental interference with state sovereignty.23 By forcing Congress to speak clearly, the Court protects parallel state legal regimes from federal incursion and thereby promotes all of the traditionally recited advantages of divided sovereignty.24 Second, the presumption against preemption also reflects an empirical assumption regarding legislative intent. Given our nation’s traditional system of limited federal government and respect for state autonomy, courts may be justified in presuming, absent clear evidence to the contrary, that federal legislators do not intend their efforts to displace existing state law.25 preemption would permit states to force issues onto the congressional agenda through state legislative efforts); S. Candice Hoke, Preemption Pathologies and Civic Republican Values, 71 B.U. L. REV. 685, 710–14 (1991) (arguing that overpreemption threatens public participation in state political processes). 19. See Alan Schwartz, Statutory Interpretation, Capture, and Tort Law: The Regulatory Compliance Defense, 2 AM. L. & ECON. REV. 1, 20–22 (2000) (arguing that inefficiencies result from nonuniform state safety standards). 20. Mendelson, supra note 2, at 752. 21. 331 U.S. 218 (1947). 22. Id. at 230. 23. See Mendelson, supra note 2, at 756 (citing as an example the Medtronic Court’s description of federal preemption as a “serious intrusion into state sovereignty” (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 488 (1996))). 24. See id. at 756–57 & n.76 (collecting sources and including government responsiveness, promotion of self-governance, efficiency, and interstate competition for citizens in a list of federalism’s traditionally recited values). 25. Id. at 755.