Since the Supreme Court overturned Chevron in Loper Bright, the administrative law community has been consumed with the question of what will come next—and how much it will differ from what has gone before. Some predict that deference by courts to agencies will persist, albeit in renamed or reconceptualized form. Some worry that the combination of Loper Bright with other cases decided last term will empower courts to kneecap regulatory schemes, both old and new. Others posit that agencies will turn to regulatory tools that bypass whatever pitfalls may emerge as a consequence of Loper Bright and its brethren.
As scholars and policymakers grappled with the past term’s implications for federal agency power, Professor Adam Zimmerman’s Ghostwriting Federalism arrived to remind us that the reach of administrative influence extends far beyond the realms of formal rulemaking and judicial deference. This rich and thought-provoking new article is about much more than the post-Loper Bright world. The paper points out a great number of routes — fifty, to be precise — that agencies might use to promote policy objectives even in a world of federal courts inhospitable to federal regulatory power.
In each of the fifty statehouses, federal regulators have found cooperative partners capable of advancing regulatory goals that federal agencies could not accomplish on their own. Through these federal agency-statehouse collaborations, Zimmerman explains, “federal agencies actually influence, craft, and occasionally write state law” (P. 1810). Even if Loper Bright does meaningfully constrain federal agencies’ ability to interpret federal statutes, Zimmerman’s article shows that federal policies may yet be implemented by state sovereigns in ways that fall outside the purview of direct control by federal courts, Congress, or the White House.
This is an often overlooked but vital aspect of administrative policymaking with significant implications for both administrative law and federalism in the post-Chevron era. How does this ghostwriting happen? As is typical of Professor Zimmerman’s work, this article grounds its discussion of theory and doctrine upon a painstakingly assembled empirical foundation. After conducting extensive interviews with agency officials from over a dozen agencies and performing original archival research, Professor Zimmerman identifies five key mechanisms through which federal agencies shape state legislation: agenda-setting; expertise-lending; institution-building; policy coordination; and federal funding. Using these tools, agencies exercise “soft power” to achieve regulatory goals without having to formally conduct rulemaking.
Professor Zimmerman is not totally enamored of these collaborations — he aims to examine and document this phenomenon and to evaluate its promises and perils, not to sing its praises. He teases out two particularly interesting implications, one for administrative law and the other for federalism. As for administrative law, these federal agency-statehouse collaborations fall into a no-man’s-land where neither the APA’s procedural restrictions nor judicial review can get much purchase: “No formal legislative, executive, or judicial oversight applies to the soft power and influence that federal agencies exercise over state legislation” (P. 1859).
On the mainstream view that such checks are essential safeguards of administrative legitimacy, this lacuna will seem troubling. Professor Zimmerman points out, though, that several agencies have developed their own internal protocols “to hear from stakeholders, promote transparency, and ensure more formal oversight inside and outside the agency, which others could easily adopt” (P. 1866). And rather than checking by Congress and in federal courts, here it is state legislatures and state courts that ultimately will most directly constrain federal agency efforts to move state law in a preferred direction.
Turning next to federalism, Professor Zimmerman makes the pleasingly counterintuitive observation that federal agencies working hand-in-hand with states may promote, rather than undermine, state sovereignty. How can this be? The reason, he explains, is that agencies may help resource-strapped states to develop technical expertise and pursue policy innovation while also helping them to avoid capture and lobbyist influence. (P. 1881.) For example, agencies have provided states with legislation adopted by other states and shared their evaluations of how that legislation has performed, thus supplying alternatives to the model laws promoted by lobbyists and organized interest groups. This can be a great help to state legislatures, particularly in states in which lawmakers are paid little and have few policymaking staff. (P. 1871). As Professor Zimmerman concludes, “in our increasingly intertwined federal and state system of government, . . . it almost no longer makes sense to debate whether federalism serves national interests or state interests” (P. 1883).
This is a time of tumult and transition — and not just because of Loper Bright. A new presidential administration has returned to Washington. Professor Zimmerman’s article stresses that it is not just the levers of federal regulation that are in play today but state lawmaking as well: “Presidential control . . . does not just mean more power over federal law. Whoever commands more control over federal agencies can assume a greater role inside state legislative agendas as well” (P. 1865). State legislative changes may endure on the books well after a given President leaves office. At this pivotal moment for the administrative state, Professor Zimmerman’s fascinating article offers a must-read account of how the future of federal regulatory policy will be shaped and realized not just in Washington, but in the fifty state capitals as well.
