Tuesday, February 26, 2008

You can't bring zebra mussels into New York

I have the rare opportunity to shed some light on a recent U.S. Supreme Court decision, Rowe v. New Hampshire Motor Transport Ass'n. A similar but fictional case was the subject of my portion of our team's National Moot Court brief. (You may remember me complaining about how the organizers of that contest gave us the Golden Screw.)

Picture it: the Midwest, 1885 (as Sofia Petrillo would say). Railroads are king, and farmers are serfs. The railroads can set prices wherever they want because there's no SEC yet, and in many cases, only one railroad enters a given community. Farmers are hopping mad. (As they always are, because farming depends heavily on the weather and the actions of speculators - two elements nobody can control. But that's neither here nor there.) After the Populists make some headway in elections, Congress sets up the Interstate Commerce Commission. The ICC gets the power to approve or veto rates and routes of railroads. The railroads grumble, but the ICC stays.

Fast-forward to the 1930s. Two new forms of interstate commerce are in their infancy: the trucking business and the air cargo business. Now, these are the days of the New Deal, when you couldn't so much as mow your lawn without Harold Ickes and Harry Hopkins establishing the National Lawn Project and hiring fifty men to do it for you, plus another five to draw up stylish NLP recruiting posters. Congress decides that airlines and truckers should be subject to the same rules as the railroads, and establishes bureaucracies to that end. (Never mind that the latter travel on tracks that are built and owned by the railroads themselves - and can thus box out competition - whereas the former travel through roads and the air, government property that any carrier can use.)

Zoom ahead again to the early 70s, and America's railroads are nearly all bankrupt. Economists point to the ICC, which responds to inquiries on rate and route changes with all the speed of a three-legged cow that's up to its knees in tar. Congress decides it's too late to save the railroads, but maybe the air transit system can be fixed. And so, after about six years of hearings, Congress enacts the Airline Deregulation Act of 1978, letting the airlines set their own damn prices and routes. (Its major backer was Ted Kennedy; its major opponents, Barry Goldwater and George McGovern. Go figure*.)

But what about the states, you say? Can't they just swoop in and set up their own airline regulations to make sure the governor's home town gets three flights a day? Congress is (for once) a step ahead of you. They flex their dormant commerce clause** muscles and expressly forbid the states from making regulations that are "related to the price, route, or services" of airlines. So much for that.

Congress' plan is rolling along in the late 1980s when FedEx brings it crashing down. As you've probably heard, FedEx delivers its packages via a network consisting both of trucks and of aircraft. FedEx decided to test the waters and sued to invalidate a state regulation that applied to them, arguing that since they were an airline, the ADA let them off the hook. The Ninth Circuit agreed with them, and the trucking industry hit the roof. Why, the hardworking truckers of America were subject to all kinds of zany state regulations (the ICC left the trucking business in 1980), and now all you have to do to get around it is buy yourself a hot-air balloon!

After years of complaints from trucking concerns, Congress relents and enacts the Federal Aviation Administration Authorization Act of 1994. Most of it concerns appropriations to upgrade airports in places like Grand Forks and Ketchikan, but another section informs the states that the same rules apply to truckers as apply to airlines, so no enacting regulations that are "related to the price, route, or services." Of course, the states can still provide regulations that affect motor vehicle safety, so yes, truckers, you have to wear your seat belts.

So now it's 2003, and the crisis du jour is teen smoking. Some Maine legislators hear tell that kids are bypassing the show-ID requirement on tobacco sales by ordering their smokes on the Internet. This threatens to disrupt the very foundations of Maineanite society, and so the legislature passes a bill requiring delivery drivers to get IDs whenever they deliver packages containing tobacco. The trucking industry cries foul, because now they'll have to mark every package containing tobacco and change their delivery procedures. Surely that "relate[s] to the price, route, or services" of their business?

Above: Maine's Attorney General at oral argument before the Supreme Court.

No question. Nine-nil to the truckers. Maine either did a lousy job of claiming that these regulations didn't meet the definition of "related to," or didn't bring it up at all, because the Court grabs the definition from a case that the truckers wanted them to use and doesn't address any of Maine's arguments on that issue.

Failing that, Maine tries to expand the exception for motor vehicle safety into a general public health and safety exception, just as I tried to do when I argued that side in Moot Court. Maine, like me, put a lot of weight into a House report that mentioned several states as models for the deregulated trucking business. All of those states had various public safety regulations on truckers in place, like California's law against transporting cougars and New York's law against transporting gambling devices (as well as the one in the title of this post). Cougars can kill people, so they can be regulated. Cigarettes kill people, too. So Maine can regulate them, right? But the Court wasn't going to let Maine get away with that. If you ask a lawyer, anything at all can be justified by "public health and safety***." So out the statute goes.

In a concurrence, Justice Ginsburg tells Congress that it's time to amend the statute to let Maine cast down its fury upon the villainous UPS guys who lurk ominously behind every bush, waiting to fill the lungs of doe-eyed youths with the vile smoke of the demon goddess Tobacco. Ginsburg is the only member of the court who expresses an opinion over whether this law was actually a good idea, and I say she's wrong. It seems odd to me that a respected jurist and her team of clerks would have failed to notice a major flaw in this statute. It's designed to stop minors from ordering tobacco online, right? And how do you pay for purchases online? With a credit card. And not even Capital One is going to issue a credit card to a minor. So either the kids are ordering with stolen credit cards (already against the law), they're stealing other people's deliveries (already against the law), or they're ordering with the consent of the person who owns the card (in which case the card owner might as well just order the smokes and then hand 'em over). Maine's tobacco delivery law was pointless, anti-tobacco grandstanding - but more importantly, it was pointless and violated federal law.

*Actually, I know why the ideological odd couple of McGovern and Goldwater teamed up on this issue: they represented states with large rural populations and they wanted the Feds to continue to mandate service to podunk regional airports in an attempt to prop up rural economies. But it's funnier to think of the two as turning into the Statler and Waldorf of the Senate after their failed presidential bids.

**The dormant commerce clause is why you Iowans have to pay ATM fees.

***When I was in Anchorage I had to help draft an ordinance banning drug paraphernalia. Among our "public health and safety" excuses was that shared drug items like bongs, dugouts, coke spoons, and crack pipes could spread germs. Hey, there'd been a tuberculosis outbreak in town a few months earlier. Can't be too careful.

No comments: