administrative law, states rights, regulatory agencies, modern federalism


Two of the most discussed administrative-law theories in contemporary discussion are executive preemption and big waiver. Executive preemption is the idea that agency regulations preempt state law by extension of the federal statutes the agencies are charged with enforcing. Big waiver is the idea that Congress delegates, to administrative agencies, the power to waive statutory provisions. The constitutional questions raised by executive preemption and big waiver can be put in the following terms. Executive preemption raises constitutional issues as regulatory agencies go farther and farther away from the “clear statement” of a given statute. Thus, one wonders whether agencies are turning themselves into an unconstitutional lawmaking body. Big waiver also raises constitutional issues. To some, it inverts the traditional approach to delegation and allows regulatory agencies to, in part, cancel laws that Congress passed. Executive preemption and big waiver currently constitute two separate theories of administrative law. This paper instead argues that these theories should be thought of in tandem. Executive preemption takes rights away from the states and big waiver gives rights back. As such, these tools allow agencies to balance federalism concerns in our present era of legislative gridlock.