Vetogates, Chevron, Preemption

Abstract

Article I, Section 7 of the Constitution creates a structure that makes it difficult to enact federal statutes: in order to become a "Law," statutory proposals must be accepted in the same form and language by both the House and the Senate and must be presented to the President. Fifteen years ago, scholars from a variety of perspectives seized upon this structure to think about its implications for American public law. Professor Bradford Clark argues that the lawmaking process entailed in Article I, Section 7 is one constitutional structure that helps "safeguard federalism . . . simply by requiring the participation and assent of multiple actors" before there can be a national "Law" that can preempt state law under the Supremacy Clause. He also argues that the Article I, Section 7 structure provides a reason for the Supreme Court to rethink at least one feature of its Chevron doctrine, namely, the deference the Court sometimes gives to dynamic agency interpretations that have the effect of preempting state law. For agency lawmaking that is Chevron-eligible, the Court asks whether Congress has "directly addressed" the issue; if not, the Court accepts the agency view so long as it is "reasonable." Some judges and commentators have argued that Chevron deference ought to apply very broadly, to any case where an agency has authoritatively interpreted a federal statute. The Court and most commentators have limited Chevron to instances where the agency is acting under the auspices of a congressional delegation of lawmaking authority.