According to the National Association of Attorneys General (NAAG), “the rise of preemption of state laws and regulations by federal administrative agencies, rather than directly by Congress” is “[p]erhaps the most significant development in federal preemption in the last several decades.” This kind of preemption is typically found in an agency ruling or regulation declaring certain state laws or activities preempted, even though the underlying statute is silent on the issue. That NAAG would view “agency preemption” as particularly worrisome is hardly surprising: the main casualties are often state attorneys general, whose broad investigative and enforcement powers under state consumer protection, health, environmental, and other state laws are displaced by the agency's action.

This chapter examines the implications of agency preemption for state attorneys general, and vice versa. Its principal intended audience is not so much the courts as Congress and the federal agencies; its prescriptions are less about judicial doctrine (though there are implications along those lines) than about choices the legislature and agencies could make to better accommodate the important functions of state attorneys general. Congress, I suggest, should directly address whether any or all of the work of state attorneys general should be preempted by any particular enactment it passes and should include provisions making clear the extent of its intent to preempt. In the absence of clear statutory language addressing the question, I argue that agencies should be reluctant to promulgate regulations preempting the investigative or enforcement authority of state attorneys general.