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ADMINISTRATIVE LAW REVIEW Volume 64 Winter 2012 Number 1 IN MEMORIAM Charles H. Koch Stephen Wermiel ................................................................................................... i ARTICLES The Supremacy Clause, Cooperative Federalism, and the Full Federal Regulatory Purpose .................................. Adam Babich 1 Equitable Power in the Time of Budget Austerity: The Problem of Judicial Remedies for Unconstitutional Delays in Claims Processing by Federal Agencies ............. James D. Ridgway 57 Avoiding Normative Canons in the Review of Administrative Interpretations of Law: A Brand X Doctrine of Constitutional Avoidance ............................ Christopher J. Walker 139 Foreign Administrative Law and International Taxation: A Case Study of Treaty Implementation in China ...................................... Wei Cui 191 COMMENTS The Game of the Name: Shortcomings in the Dual-Agency Review of Drug Trademarks and a Remedial Cure ....................... Ty Halasz 235 Sitting on the Bench: The Failure of Youth Football Helmet Regulation and the Necessity of Government Intervention ............... Jason Navia 265 RECENT DEVELOPMENTS An Important Member of the Family: The Role of Regulatory Exemptions in Administrative Procedure ................. Sean D. Croston 295 Flip the Coin to the Fed: A Comment on the Dysfunctional Relationship Among the Federal Reserve System, Congress, and the United States Mint ................................................... Keeley McCarty 315 ADMINISTRATIVE LAW REVIEW Volume 64 Winter 2012 Number 1 IN MEMORIAM Charles H. Koch Stephen Wermiel ................................................................................................... i ARTICLES The Supremacy Clause, Cooperative Federalism, and the Full Federal Regulatory Purpose .................................. Adam Babich 1 Equitable Power in the Time of Budget Austerity: The Problem of Judicial Remedies for Unconstitutional Delays in Claims Processing by Federal Agencies ............. James D. Ridgway 57 Avoiding Normative Canons in the Review of Administrative Interpretations of Law: A Brand X Doctrine of Constitutional Avoidance ............................ Christopher J. Walker 139 Foreign Administrative Law and International Taxation: A Case Study of Treaty Implementation in China ...................................... Wei Cui 191 COMMENTS The Game of the Name: Shortcomings in the Dual-Agency Review of Drug Trademarks and a Remedial Cure ....................... Ty Halasz 235 Sitting on the Bench: The Failure of Youth Football Helmet Regulation and the Necessity of Government Intervention ............... Jason Navia 265 RECENT DEVELOPMENTS An Important Member of the Family: The Role of Regulatory Exemptions in Administrative Procedure ................. Sean D. Croston 295 Flip the Coin to the Fed: A Comment on the Dysfunctional Relationship Among the Federal Reserve System, Congress, and the United States Mint ................................................... Keeley McCarty 315 INMEMORIAMREV3.DOCX 3/7/2012 2:12 PM IN MEMORIAM CHARLES H. KOCH 1944–2012 PROFESSOR STEPHEN WERMIEL* Charles H. Koch, Jr., the Dudley Woodbridge Professor of Law at the William and Mary Marshall–Wythe School of Law, was an administrative law expert of the first order and played an important role in the history of the Administrative Law Review. We are saddened at his passing and invite our readers to join us in reflecting on his many contributions and achievements in the study of administrative law. The Administrative Law Review is unique among law reviews in that it has had several different homes. From 1989 to 1996, while the Administrative Law Review was housed at William and Mary and operated as a faculty-run journal, Professor Koch served as editor in chief and supervised student staff members who assisted in the production of regular volumes. In this * Professor and Fellow, Law and Government Program, American University Washington College of Law. i INMEMORIAMREV3.DOCX 3/7/2012 2:12 PM ii ADMINISTRATIVE LAW REVIEW [64:1 and in all other facets of his teaching career, he was passionately devoted to the study and development of administrative law. We are grateful for his careful custodianship of the law review and salute his leadership in our field. Truly, he was a luminary. A graduate of the University of Maryland and The George Washington University Law School, Professor Koch also earned an LL.M. from the University of Chicago Law School. He worked at the Federal Trade Commission for five years before beginning his teaching career at DePaul University College of Law in Chicago in 1975. In 1979 he joined the faculty at William and Mary and remained there until his death on February 18, 2012. Professor Koch was a prolific author of books and articles on administrative law. His works include eight articles published in the Administrative Law Review and many more published in other journals. He was the author or co-author of numerous practice books and annual supplements, including portions of Federal Practice and Procedure, Federal Administrative Practice, and the third edition of Administrative Law and Practice. He was the lead author of the celebrated casebook, Administrative Law: Cases and Materials (with co-authors William Jordan and Richard Murphy), now in its sixth edition. Beyond his scholarship, Professor Koch served our field in so many other ways. For the past seven years, he was assistant chief reporter for the American Bar Association project on Administrative Law of the European Union. He also served as the chair of the Association of American Law Schools (AALS) Administrative Law Section from 1999–2000 and chair of the planning committee for the AALS Workshop on Administrative Law in 2000. He served twice as a consultant to the Administrative Conference of the United States. The editors and faculty board of the Administrative Law Review honor Professor Koch for a distinguished career dedicated to the advancement of administrative law. 1BABICHREV2.DOC 3/2/2012 12:16 PM ARTICLES THE SUPREMACY CLAUSE, COOPERATIVE FEDERALISM, AND THE FULL FEDERAL REGULATORY PURPOSE ADAM BABICH TABLE OF CONTENTS Introduction ................................................................................................... 2 I. Preemption Doctrine .......................................................................... 7 A. Preemption and Conflict ............................................................. 7 B. Preemption Doctrine’s “Ultimate Touchstone” Is the Federal Regulatory Purpose ........................................................ 9 C. The Supremacy Clause Preempts State Action That Conflicts with the “Full” Federal Regulatory Purpose .............. 13 II. Abstention ......................................................................................... 16 III. Environmental Cooperative Federalism ........................................... 22 A. Terminology and Scope ............................................................ 22 B. Environmental Cooperative Federalist Systems ........................ 26 C. Three Congressional Goals ....................................................... 29 D. Keeping States on Track ........................................................... 31 1. Program Approval ............................................................... 32 2. Program Withdrawal ........................................................... 34 3. Other Sanctions ................................................................... 38 4. Objections to State Permits ................................................. 38 5. Amendments to and Termination of State Permits ............. 39 Professor of Law, Tulane University, and Director of the Tulane Environmental Law Clinic. Thanks to Professors Johanna Kalb, M. Isabel Medina, and Amy Stein, to research assistants James C. Hou, Jessica L. Kersey, and Kara K. McQueen-Borden, and to Cheri, Jo, and Walter Babich. 1 1BABICHREV2.DOC 3/2/2012 12:16 PM 2 ADMINISTRATIVE LAW REVIEW [64:1 6. Direct Federal Enforcement ................................................ 40 IV. Preemption Analysis Applied: Sorting False from True Conflicts with the Full Federal Regulatory Purpose ......................... 41 A. Categories of State–Federal Conflicts ........................................ 42 1. Isolated Mistakes .................................................................. 42 2. Systemic Conflicts Subject to Robust Federal Corrective Mechanisms ....................................................... 44 3. Conflicts with the Full Federal Regulatory Purpose ............ 45 B. Four Questions for Sorting Conflicts ......................................... 46 C. The Robust Federal Corrective Mechanism Test ..................... 48 D. An Illustrative Table .................................................................. 51 E. Changing Categories ................................................................. 54 Conclusion ................................................................................................... 55 INTRODUCTION The Supremacy Clause is a slippery thing, considering its few, straightforward words.1 The U.S. Supreme Court says the Clause “is not a source of any federal rights” but merely governs the priority of rights and duties when our sovereigns’ laws conflict.2 Nonetheless, the Clause gives rise to a stand-alone private cause of action for preemption of state (and local3) laws.4 Preemption claims are therefore available to members of the regulated

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