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Chevron Deference and Preemption:

On Friday, the U.S. Court of Appeals for the Sixth Circuit considered whether federal law preempts application of the Ohio Mortgage Broker Act to agents who sell mortgage products for State Farm Bank in State Farm Bank FSB v. Reardon. Yes, the court concluded. While the court agreed with the federal Office of Thrift Supervision, it did not show any deference to the OTS' conclusion. As the court explained in a footnote:

The approach we take today (i.e., answering the preemption question without consideration of the OTS Opinion and the level of deference it should be afforded) is consistent with the Supreme Court's approach in Watters v. Wachovia Bank, N.A., 127 S.Ct. 1559, 1572 (2007). In Watters, the Court determined that federal banking law preempted the application of a Michigan licensing and registration law to subsidiaries of a national bank. Id. The Court reached its conclusion without devoting any discussion to whether the Office of the Comptroller of the Currency's ("OCC") interpretation of the National Banking Act was entitled to Chevron deference. Id. The Court's failure to discuss the OCC's interpretation of the Act is especially significant because the lower courts who addressed the issue had decided the case based on Chevron deference to the OCC's interpretation of the applicable statute.

Whether the Court reached the proper result on the preemption question, it certainly handled the Chevron question properly. Whether a federal statute (or regulatory scheme) preempts state law is a question that should be answered by courts, not agencies, in the first instance, and courts should not presume that preemption questions have been delegated to federal agencies without an explicit delegation of such authority in federal law. In my view, this is essentially the sort of jurisdictional question that should not be subject to Chevron deference.

Related Posts (on one page):

  1. Chevron Deference and Preemption:
  2. Chevron Deference and Agency Jurisdiction:
Jon Roland (mail) (www):
There is a general problem with court deference to administrative agencies. It has the effect of reversing the presumption and putting the burden of proof on the citizen defendant in an action by the government. See our page Nondelegation and the Administrative State for more discussion on this issue.

One of the two main general rights implicit in the Ninth Amendment is the right to a presumption of nonauthority. That means courts should never presume an act of the legislature or admionistrative agency is constitutional, but should always demand strict proof of authority, with the burden of proof on the government. See Presumption of Nonauthority and Unenumerated Rights.
8.24.2008 11:29am
FlimFlamSam:
Jon Roland,

The idea that the presumption of constitutionality is improper goes against a LOT of American jurisprudence. In fact, there was a debate (settled by Marbury v. Madison) as to whether American (federal) courts even had the power of judicial review.

If the founding generation viewed judicial review as debatable, it seems almost impossible to reasonably contend that the Ninth Amendment was intended to establish a presumption of unconstitutionality (your "presumption of nonauthority").
8.24.2008 12:56pm
vassil petrov (mail):
Whether a federal statute (or regulatory scheme) preempts state law is a question that should be answered by courts, not agencies, in the first instance.

As well as every other question about statutory construction. The very idea of Chevron deference is hardly reconciable with the notion of separation of powers.

As far as I know, this precedent is part only of US administrative law and of a very recent creation.
8.24.2008 3:28pm
Jon Roland (mail) (www):
To FlimFlamSam:

Judicial review was not really debated or debatable by the Founders. Hamilton himself explained the principle in Federalist #78. Some might have disagreed with a decision, but not with the principle, that every citizen, including judges, has a militia duty to help enforce the law, and to resolve any conflict of law that may be involved. That means that if a superior law, the Constitution, is in conflict with a lesser law, or other official act, the decision must be for the Constitution. It is not the exercise of a delegated power, but of a duty common to all citizens, of constitutional review, which is only called judicial review when the person happens to be a judge, and he performs his ordinary judicial duties. The weight of constitutional review by the Supreme Court is only that it gets the decision at a late stage, beyond which there is only constitutional amendment.

The presumption of nonauthority underlies the entire system of law we inherited from England, once one replaces the monarch with the people as sovereign. The presumption of constitutionality is not a construction of the Constitution, but a prudential decision, for the convenience of the court, in conflict with the Constitution.
8.24.2008 8:23pm
FlimFlamSam:
Jon Roland,

I think we are talking past each other a bit. There were many in the early days of the Republic who believed that judges could not strike down an unconstitutional law. If that was a reasonable and common belief at the time, then I cannot logically come to grips with the idea that the intention, language, and meaning of the Ninth Amendment is that all laws are presumed unconstitutional until proven to be constitutional.
8.25.2008 7:52pm
Happyshooter:
For such a major holding there are very few comments here.
8.26.2008 10:43am
Jon Roland (mail) (www):

There were many in the early days of the Republic who believed that judges could not strike down an unconstitutional law. If that was a reasonable and common belief at the time, then I cannot logically come to grips with the idea that the intention, language, and meaning of the Ninth Amendment is that all laws are presumed unconstitutional until proven to be constitutional.


Cite some who expressed that position before 1803. A few partisans less educated in the law popped up after the opinion in Marbury, but leading Founders like Jefferson shot them down. (Jefferson regarded the decision as correct, but for the wrong reason, arguing that the property right in the commission did not vest until accepted, much like title to property does not vest until accepted by the grantee.)

This is discussed in The Constitutional Case Against Precedent, Gary Lawson, 17 Harv. J.L. &Pub. Pol'y 23, 24 (1994); Mostly Unconstitutional: The Case Against Precedent Revisited, Gary Lawson, 5 Ave Maria L.R. 1 (2007). And see the cite to Easterbrook.

The concept of the right to a presumption of nonauthority is also implicit in the Tenth Amendment, which clearly states that powers not delegated may not be exercised, and expressed it as a right, which we can presume created judicial standing to privately prosecute it as a public right. The ancient prerogative writ of quo warranto clearly confirms that if a power is questioned, the burden of proof in on the party seeking to exercise the power.

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
8.26.2008 8:48pm