ACSBlog: The Blog of the American Constitution Society

by Simon Lazarus and Harper Jean Tobin, attorneys with the National Senior Citizens Law Center

Tomorrow – Wednesday, November 28 – the Supreme Court will hear oral arguments in a case that pits states wishing to protect public health against businesses looking to knock down regulation wherever they see it. The case is Rowe v. New Hampshire Motor Transport Association, and the legal issue involved – federal “preemption” of state law – garners few headlines, but is one of the most frequent subjects of Supreme Court decisions and touches nearly every area of American life.

Preemption is a necessary judicial tool for ensuring the supremacy of federal law in our divided system of government; it ensures that states do not undermine federal programs, or throw monkey wrenches in complex regulatory schemes that require national uniformity. But of late, businesses have been seeking, and increasingly courts have been granting, preemption of state regulatory and common-law safeguards, regardless of whether Congress anticipated or intended any such results.

The Rowe case started with Maine’s efforts to curb Internet tobacco sales to minors, which have grown dramatically in recent years. In doing so, Maine was not only carrying out its traditional responsibility to promote public health, but performing federal duties under the 1992 Synar Amendment, which (as a condition for receiving federal funds) requires states to ensure that sellers and distributors don’t deliver tobacco to minors. With Internet sales, however, it’s not as simple as saying “don’t sell to kids,” since businesses may or may not know with whom they’re dealing. Since Maine lacked the power to reach sellers far outside of its borders, it focused on the businesses that deliver tobacco within the state – including cargo carriers – requiring them to make sure the recipients weren’t minors.

Enter the shipping industry, through its Maine-based trade association, which argued that the state’s Tobacco Delivery Law is invalid because it conflicts with a provision of the Federal Aviation Administration Authorization Act of 1994. The FAAA Act provision was intended to make shipping less expensive by standardizing regulation of carriers across the country. It bars states from passing any law “related to a rate, route, or service” of cargo carriers, and the industry contended that this includes the Maine law. The district and circuit courts agreed, citing Morales v. Trans World Airlines, 504 U.S. 374 (1992), which interpreted similar preemption language in the FAAAA provision’s predecessor law (the Airline Deregulation Act) as having “a broad preemptive purpose.”

Maine argues that the FAAAA provision cannot preempt any state law that affects cargo carriers; this would include “myriad state public health delivery laws banning and controlling the delivery of everything from alcohol to wild animals” that were in place when the preemption provision was enacted. It points to the Supreme Court’s admonition – in a preemption case arising under the Employee Retirement and Income Security Act – not to literally interpret such language, on the ground that “[i]f ‘related to’ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course.” NY State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995).

In Maine's view, the preemptive effect of the FAAAA provision should be limited to matters like airport fees or liability rules for lost cargo – regulation of the economics of shipping itself. However, the state argues, Congress intended not to displace public health measures that impose merely incidental burdens on carriers. Distinguishing Morales, the state notedthatthe airline advertising rules preempted in that case directly and exclusively regulated the business of airlines, and the Supreme Court found a significant effect on the national market. By contrast, the Maine law applies to all kinds of delivery services, and it is far from clear that the economic effect on the carrier industry would be more than a modest one.

Maine's targeted approach to preemption is supported by decisions of the Second and Ninth Circuits holding that the FAAA Act did not preempt state wage and towing laws. Californians for Safe & Competitive Dump Truck Transp. v. Mendonca,152 F.3d 1184 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999); Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765 (2d Cir. 1999). These courts properly focused on Congress’s intent, and whether the state laws would interfere with the purpose of the federal Act. By contrast, the industry plaintiffs in Rowe attempt to isolate the preemption language of the Act and construe it out of context, freeing them from any regulatory burden, no matter how slight, how far from the areas Congress had in mind, or how closely tied to traditional state powers.

This methodological dispute about how to approach statutory preemption provisions makes Rowe not just a case about tobacco deliveries, or even about public health regulation. Businesses have been bringing preemption suits by the dozens to displace state laws, often on the basis of seemingly unrelated federal laws.  Indeed, Rowe is not the only such case on the Court’s current docket. In Riegel v. Medtronic, set for argument on December 4, medical device manufacturers are seeking to immunize from state tort liability all medical devices given pre-market FDA approval.

As noted above, the preemption power was never meant to deprive states of their historic responsibility to safeguard public health and safety. Inasmuch as they threaten to replace a balanced interpretive approach focused on congressional intent with reflexive hostility to state regulatory safeguards, low-profile cases like Rowe have the potential to do just that.