INTRODUCTION
How DYNAMIC INCORPORATIONS OF FEDERAL LAW ARE
As a general illustration of how federal and state systems are not acoustically separate in nature, in many situations where Congress has authorized states, often through an attorney general, to enforce federal statutes or regulatory standards, such as where Congress appoints state attorneys general has authority to bring suit in federal court for enforcement of the Federal Trade Act or the Americans with Disabilities Act.15 However, it is important to “separate the issue of state enforcement from that of state regulatory authority. ”16 This article focuses on regulation, or the substantive content of the law, not its enforcement. Of course, in many, if not most, areas where states regulate their activities, Congress has broad authority to preempt states under the Commerce Clause.”7 Even where Congress or a federal regulatory agency has not prejudiced states by binding on substantive federal law, states continue to have their own authority to regulate, even in areas where some existing federal regulation also exists.'8. This article focuses on the extent to which a state's constitution allows a legislative body to base the content of its laws on the law of the federal government.
This section describes how state legislatures often rely on incorporating dynamic federal law into their legislative mandate, discusses its merits, and highlights how the constitutional problem this presents under state separation of powers is under-theorized.
Common Examples ofState Incorporations ofDynamic
This article focuses on state legislative reference to federal sources of law, in the form of incorporation by reference or delegation. Many states have adopted provisions of federal law that classify drugs as "controlled substances" based on federal law, relying on the scientific expertise of federal regulators and promoting uniformity through convergence in the definition of federal and state crimes. 22. State revenue agencies are typically directed by a state legislature to adopt/rely on the Internal Revenue Service's definitions or interpretations regarding the definition of "income" as well as the determination of various tax credits or deductions.23 .
The vast majority of state bank regulators rely on Federal Reserve Board regulations to decide when to activate state bank regulation.26. These examples share (a) a state legislative delegation and (b) some limitations on the scope of that delegation based on existing or future federal law. Moreover, the sovereign actions that determine the content of the regulation and may apparently limit future law are national in nature.
Such delegations thus raise distinct questions related to constitutional federalism: they are state-based in relation to the policy choice surrounding their original adoption, but they also draw on federal sources of law for their content and limitations.
Benefits ofDynamic Incorporations ofFederal Law
In particular, incorporation by reference of sources of federal law may also allow states to draw on the expertise of federal agencies in situations where that same expertise is not available at the state or local level.34 After all, most state agencies have small staffs, and lack the stability, funding or level of professionalism necessary to ensure consistent, thorough and modern evaluation of scientific and technical issues. The role of such expertise is particularly important in the context of drug, health or safety regulation, where an evaluation of the scientific relationship between risk and harm depends on complex data analysis and modelling. Because of resource constraints and small agency size, state regulators, compared to federal agencies, are also likely to have limited expertise and experience in other regulatory arenas, such as banking, securities, and antitrust regulation.35.
There is also a more general efficiency in relying on the incorporation of federal laws, insofar as it avoids unnecessary duplication of decision-making processes. Relying on the expertise and judgment of a federal agency prevents individual states from having to replicate the research, political processes, and opportunities for input that have already occurred at the federal government level. If the federal government has already sought statewide input, collected information from a wide range of stakeholders, and evaluated this input in adopting standards, it is not clear what is gained by requiring a state to start the same process all over again to involve, on a smaller scale.
In fact, a state legislature may well favor the national political process as a source of input in addressing difficult regulatory issues; Unlike a state decision-making process, a national process can dilute the influence of powerful state or local interest groups and allow regulatory content to draw on a broader range of geographic and substantive influences.
Significance for State Constitutional Law
NONDELEGATION AS AN ExANTE CONSTRAINT
There is little doubt that if a state legislature were to transfer its entire regulatory function to another sovereign, this would likely be constitutionally problematic52. In extreme cases, this could violate the US warranty clause. A special set of constitutional problems arises when a state legislature does not adopt the law of another state but adopts the law of the federal government. 5.2 For example, consider what would happen if the state of Tennessee were to adopt a statute stating that the state "hereby adopts all laws adopted by the state of Colorado." Although Judge Brandeis's idea of state experimentation would provide for the borrowing of a certain amount of legal norms between states, such power distance by state legislatures would almost certainly violate basic bilateralism, presentation, and other statutory provision provisions (such as requirements for one subject) in the state. constitutions.
COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS RESTING ON THE LEGISLATIVE POWER OF THE AMERICAN STATE. State constitutions, however, have their own distinct principles of separation of powers, and state supreme courts are much more receptive to constitutional challenges under the nondelegation doctrine, particularly where legislation lacks standards or limitations on future legal change.60 Some state courts have held state statutes. which rely on or draw on federal sources of law that are unconstitutional.6 1 Even state courts that do not categorically invalidate these types of statutes have interpreted them narrowly to avoid reaching a decision that they are unconstitutional.62 In fact, these court decisions do not authorize state law to conform to federal standards without further legislative action by the state legislature. For many state courts, the application of the nondelegation doctrine to legislation adopting federal standards is at least as strict as in other contexts, such as delegation to state agencies or to private standards boards; for some it is even more so.63 This approach is not a recent trend, but appears to be a long-standing and accepted practice in interpreting state constitutions, particularly in judicial decisions striking down or limiting delegations to state agencies that would approve or require a state to adopt federal standards related to health, safety, and the environment.
After discussing a few categories of examples, I frame this constitutional skepticism against delegation to a federal sovereign as a distinct set of cases in separation of powers jurisprudence, distinct from application of the nondelegation doctrine in other contexts.
Constitutional Challenges to Dynamic Incorporations of
In the spirit of these decisions, the use of the nondelegation doctrine to invalidate state use of federal law has had an especially significant impact on state labor law. The constitutional practice of using the nondelegation doctrine to reject a state legislature's choice to incorporate dynamic federal law could be defended to the extent that it allows the state's separation of powers to serve as an instrument . Set against these fundamental values, it is unclear why an ex ante ban on the statutory incorporation of dynamic sources of federal law is necessary.
I argue that the nondelegation restrictions here are not necessary, but may be detrimental to some of the goals of separation of powers and federalism, to the extent that incorporating dynamic federal law provides state legislatures with a way to do so. Many of the cases seeking to strike down legislation involving dynamic federal law raise the same kinds of concerns. However, any concern about incorporating private standards simply does not extend to incorporating federal law.
In almost every case involving state incorporation of dynamic federal law by a state agency, an identifiable and relatively fixed source standard may allow state courts to monitor whether. 2 0 3 See generally Arnold Rochvarg, State Adoption of Federal Law-Legislative Abdication or Reasoned Policymaking?, 36 ADMIN. Any dynamic federal law is still subject to the limitations and restrictions under the specific federal statutes that authorize a federal agency to regulate, as well as requirements in federal administrative law.
To the extent that federal administrative procedures, including relevant considerations under arbitrary and capricious review, are incorporated into state law regarding future legislative changes to federal standards, future changes to federal law are not unlimited. When regulations are changed at the state level in the future to incorporate dynamic federal law, an arbitrary and capricious standard would provide a state court with an opportunity to examine challenges to a dynamic federal law under state law terms without relinquishing any control over the state's evaluation of the legislation's arbitrariness to the national government . DYNAMIC INVOLVEMENT OF FEDERAL LEGISLATION . for state law purposes), although no federal court has done so.
This kind of decision would have no precedential impact on federal law, but instead would only affect how that state treats legal changes related to the dynamic incorporation of federal law. A notable democratic process federalism advantage of hard look federalism would be to involve both state courts and state agencies more directly in evaluating the relevant legal considerations and constraints on dynamic federal legislation. Such an approach may allow states to continue to experiment even more with the incorporation of dynamic federal law.
I have argued that a state court's use of the nondelegation doctrine as an ex ante limitation on the dynamic incorporation of federal law should be rejected as inconsistent with the separation of powers under state constitutions. In exercising arbitrariness review, state courts can use these external standards to prompt judicial review of dynamic federal law. Conversely, any use of a norm of resistance against the dynamic incorporation of federal law works to disable the political process.
