Wayne A. Logan · July 2010
78 GEO. WASH. L. REV. 993 (2010)
With the realization that the Rehnquist Court’s judicial federalism revolution was perhaps not so revolutionary after all, scholars increasingly have looked to alternate institutions to preserve state autonomy and related federalism values. The most obvious candidate, Congress, has disappointed, persisting in its tendency to intrude on state interests by means of such vehicles as the Commerce Clause and by evading political and process federalism safeguards. Attention has thus shifted to the federal executive branch, an increasingly dominant lawmaking force in modern-day America.
Scholars have suggested a variety of ways to temper federal agency prerogatives vis-à-vis the states, ranging from resuscitating the nondelegation doctrine to curtailing preemption authority, which one commentator has called “the central federalism issue of our time.” Of late, such traditional negative limits have been complemented by positive assertions that agencies are actually best suited institutionally to serve federalism interests. Several respected scholars have recently argued that, rather than acting as instruments of federal hegemony, agencies possess superior capacity—compared to Congress and the courts—to reflect and serve state values and concerns. Gillian Metzger, for instance, has gone so far as to characterize “administrative law as the new federalism.” The idea, however, that agencies can be effective stewards and agents of federalism has inspired resistance, including from sitting members of the Supreme Court.
To date, the competing positions have played out only in the theoretical realm. In keeping with the dearth of empirical information on the internal workings of agencies more generally, claims of agency superiority have been merely posited—not proven. This Essay examines the viability of the administrative federalism model, doing so through the lens of the federal Adam Walsh Act (“AWA”), enacted in July 2006 to reconfigure the nation’s network of state sex offender registration and community notification laws. As will be evident, the Department of Justice (“Justice”), charged by Congress with providing critically important substantive guidelines for the interpretation and implementation of the AWA, neither sought nor incorporated state views, to the states’ considerable consternation. Importantly, as a result, the final regulatory outcomes, which states are expected to adopt under congressional Spending Clause pressure, not only disregarded state autonomy; they also lacked the significant practical wisdom and insights of states, secured by decades of experience with registration and community notification.
The Essay has four parts. Part I provides a brief overview of the literature on administrative federalism. Part II examines the rulemaking process undertaken by Justice to craft the critically important AWA guidelines. Part III examines how the federalism-enforcing benefits posited by advocates of administrative federalism size up against the reality of the actual rulemaking efforts of Justice. Using the AWA as a case study, the Essay casts significant doubt on the empirical assumptions of administrative federalism, adding to the limited empirical record amassed on state influence on agency rulemaking, and providing an important object lesson for future agency-based criminal justice mandates that will likely come to pass.
