How Courts Can Protect State Autonomy from Federal Administrative Encroachment – Article by Scott A. Keller

From Volume 82, Number 1 (November 2008)

Unlike the federalism cases typical of the Rehnquist Court, modern federalism cases will not involve interpretation of the Commerce Clause or the Tenth Amendment, particularly after Gonzales v. Raich refused to expand the Commerce Clause to protect state autonomy. Instead, modern federalism cases will involve basic statutory construction. The Supreme Court has become increasingly interested in cases dealing with the intersection of federalism and statutory construction, deciding two such cases during the October 2007 Term and granting certiorari in two other cases for the 2008 Term.

Federalism concerns in statutory construction arise most frequently in administrative law, as modern federal agencies produce an enormous amount of laws. As a result, the hard questions about federalism now appear in administrative law cases. Courts and commentators are becoming wary of the ability of federal agencies to encroach on state autonomy, given the underenforced constitutional norms of federalism and the nondelegation doctrine.