Federalism Accountability: “Agency-Forcing” Measures

This Article takes as its starting point the agency reference model for judicial preemption decisions, adopting the foundational premise that courts should take advantage of what federal agencies, which are uniquely positioned to evaluate the impact of state regulation and common law liability upon federal regulatory schemes, have to offer. The Article\u27s main focus is on the federalism dimension of the debate: Congress\u27s and federal agencies\u27 respective ability to serve as loci of meaningful debate with state governmental entities about the impact of federal regulatory schemes on state regulatory interests. Notwithstanding the dismal track record of federal agencies, which seems to be characterized by total neglect of states\u27 regulatory interests, the Article sides with agencies over Congress and trains its focus on reform of the agency rulemaking process. Given that the 1999 Federalism Executive Order provides a blueprint for timely and meaningful consultation with the states, issuance of federalism impact statements, and robust interchanges during the notice-and-comment period, what is needed now is an effective enforcement mechanism. The Article advocates a variety of agency-forcing measures designed to enhance the ability of Congress, the executive, and especially the courts, to ensure that agencies abide by executive mandates and other reforms, and to provide a check on overt politicization or inaction on agencies\u27 part. The Article introduces the concept of indirect challenges to agency rulemaking, arising outside of the Administrative Procedure Act\u27s domain of direct challenges to agency action at a later juncture when a defendant asserts a preemption defense to state common law tort actions