Wednesday, January 12, 2011

ACUS Recommendation on Preemption

Administrative Conference of the US (ACUS) a federal agency has issued its first formal recommendation in 15 years after its reconstitution from zero budgeting in 1994. The recommendation deals with Preemption in federal rulemaking and consultation with the states prior to adopting final rules with preemption implications.

Go to:

The recommendation was published in the Federal Register at 76 Fed.Reg. pp 81-83 on Monday January 3, 2011.

I had sent a letter to ACUS before their final adoption session which is available from this blogger. It was not specifically discussed in the adoption meeting/hearing but was specifically chuckled about by those present. Perhaps he who laughs last laughs loudest?

The word "preemption" appears nowhere in the US Constitution but reflects two separate clauses of that document.

The first is the so-called "Supremacy" Clause which reads as follows:

"Article VI.

. . .This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made under the Authority 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. . ."

Section 8 of Article 1 provides in part:

. . .To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. . ."

That second clause is the so-called "Commerce Clause"!

The ACUS recommendation does not address precisely the type of regulation issued by the Executive Branch components, whether a Commerce Clause regulatory action or not. Nor does it refer to the "Supremacy Clause" of the Constitution.

Because I discovered the effort to consider adoption of the ACUS recommendation very late in the game I did manage to get a letter to them filed in the record which at least tangentially raised the issues by inference. Still all in all the recommendation appears sound.

What may startle some analysts is that I don't know of any Commerce Clause regulatory authority vested in the Department of Homeland Security or FEMA. Which means that Constitutional challenges to DHS action must be defended on some other basis. Perhaps for example the US Criminal Code at Title 18 of the USC. Or Article I Section 8, the so-called Tax and Spend Clause of the Constitution. Recent litigation on health care has begun to focus on the last paragraph of Article I Section 8 which reads as follows:

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

We may be in for a fundamental rethinking of the grant of authority to the President and Executive Branch in the next decade by SCOTUS should they live up to the so-called strict construction theory of Constitutional authority. The vast majority of SCOTUS members are Catholic or Jewish and both have religious traditions based on the Bible and Torah where efforts to defend a strict construction of those books have consumed many lives directly and indirectly. Too bad there is not a believer of Islam on the Court so that the traditions of the Quran could join the other major Western religons represented. And like the President the persons nominated to SCOTUS must express some evidence of belief in any religion to make it to the Court through confirmation.

Federalism is a form of secular faith. Belief in separation of powers and checks and balances. Let US see how this comes out.