Professor Catherine Sharkey participated in a briefing on federalism and preemption for the staff of the House Judiciary Committee and the Senate Judiciary Committee of the United States Congress on August 30th. The panel of experts included representatives of the Uniform Law Commission and the National Governors’ Association.

Her presentation was a discussion of how her body of work relating to the reform of internal procedures at federal agencies in the context of promulgating regulations with potentially preemptive effect might be applicable to Congress, as it drafts federal legislation that could potentially preempt state law. Sharkey first discussed the methodology, findings and recommendations set forth in the report she had recently prepared for the Administrative Conference of the United States (ACUS), then explained how those findings and recommendations could be applied to Congress.

Sharkey’s recommendations—all of which were eventually adopted in some form by ACUS in January 2010—aimed to mitigate what she perceived to be two key preemption-related problems in the rulemaking process today:  first, that agencies were not effectively communicating with the representatives of the relevant state interests (in large part because the agencies were unaware of who were the relevant representatives with whom they should be communicating), and, second, that those representatives were not sufficiently responsive to whatever outreach efforts that agencies were making. Among her recommended solutions was the creation and upkeep of a “state representative contact list,” which would include representatives of such non-partisan intergovernmental groups as the National Governors’ Association. Another of Sharkey’s recommendations adopted by ACUS was the imposition of a notice requirement, whereby, in the course of the rulemaking process, an agency would actually be required to notify state attorneys general, who in turn could help identify representatives of the relevant state interests implicated by the particular rule that the agency was in the process of promulgating.   
Sharkey explained how her ACUS report recommendations addressed to internal agency practices and procedure could also be applied to Congress in the course of its legislative-drafting procedures, where the legislation at issue has a potential preemptive effect on state law. As an initial matter, Sharkey circulated the actual contact list of representatives of state interests that ACUS now administers. She suggested that this list could be used by members of Congress to reach out to these representatives during the legislation-drafting process, just as agencies would, in the course of the rulemaking process. Sharkey went on to outline another way that Congress could enhance its internal procedures in the preemption context:  better coordination with the federal agencies whose rules might be codified, implemented, supplemented, or supplanted by the proposed federal legislation at issue. Sharkey detailed how such coordination could take place, through Congressional hearings and other matters.

Sharkey’s remarks to Congress reflected a recognition on her part that the most often cited solution to preemption debates, namely, that Congress could be clearer in its statutory language about whether a particular law has preemptive effect, is an oversimplification of a far more complicated issue. Her work in this area is, in part, an effort to explore the reasons why Congress is not clearer when it writes laws with potentially preemptive effect, including whether it is even apparent to Congress that its laws might have such an effect. It is part of her ongoing scholarly exploration of what she has termed “judicially managed federalism,” i.e., the process by which courts, with their decisions in the preemption cases that come before them, are making crucial decisions about whether regulation of a particular industry, product or the like should take place on the federal or state level. Sharkey maintains that courts can only “manage federalism” in a coherent and just way if all of the institutions involved in the preemption process—agencies, Congress, and the courts—achieve their full potential.

Posted September 16, 2011