122 Yale L.J. F. 1 (2012-2013)

handle is hein.journals/yljfor122 and id is 1 raw text is: 














CATHERINE M. SHARKEY


Preemption as a Judicial End-Run Around the
Administrative Process?


    Federal agencies play a dominant role in administering federal statutory
schemes. At the front lines, they are tasked with interpreting statutes, enacting
regulations to implement federal programs, and enforcing federal directives.
During   the course  of adjudication or  rulemaking,  federal agencies are
sometimes  called upon to determine whether  state law conflicts with federal
law. That conflict inquiry is at the heart of preemption disputes before state
and federal courts. Private parties wield preemption - typically as a defense - to
stave off the effects of a state law allegedly trumped by federal law under the
Supremacy  Clause. Courts are then called upon to decide the extent to which
state law is inconsistent with federal law. Judicial review of agency action
under the Administrative Procedure Act (APA) and preemption challenges thus
provide parallel proceedings to resolve disputes over whether state and federal
law are simpatico or at war.
    Douglas v. Independent Living Center of Southern California, Inc.' provides an
opportunity to reflect upon the relationship between these parallel tracks for
adjudicating federal-state conflicts. Who is, and who should be, the ultimate
arbiter of the existence of federal-state conflicts and how to resolve them-
agencies or courts? In this Essay, I use Douglas to explore two questions: first,
whether  courts can act as prompters, pushing federal agencies to discharge
their duty to weigh in on potential conflicts between federal and state law; and
second,  whether  a synergistic relationship can exist between courts  and
agencies in making such conflict determinations.
    The Medicaid  providers (doctors, hospitals, and pharmacists) in Douglas
sued  to enjoin provisions of California law  that reduced the  amount  of



1.  No. 09-958 (U.S. Feb. 22, 2012), http://www.supremecourt.gov/opinions/lpdf/o9-958.pdf
    (to be reported at 132 S. Ct. 1204).


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