Rowe v. NH Transport (06-457)

Bill Long 2/21/08

SUMMARY OF FEBRUARY 20, 2008 DECISION

A summary of the background facts and important legal provisions in this case is here. On Feb. 20, 2008 a unanimous Supreme Court (Justice Breyer writing for the Court) held that the two Maine tobacco law provisions requiring: (1) mail delivery companies to verify the identity of recipients, and (2) relating to the presumed tobacco contents of packages, conflict with federal law and are thus pre-empted by the federal law. This essay follows Justice Breyer's language as well as the official syllabus (summary) of the Court's opinion.

Justice Breyer stated the issue and conclusion as follows:

"We here consider whether a federal statute that prohibits States from enacting any law “related to” a motor carrier “price, route, or service” pre-empts two provisions of a Maine tobacco law, which regulate the delivery of tobacco to customers within the State. 49 U.S.C. §§ 14501(c)(1), 41713(b)(4)(A); see Me.Rev.Stat. Ann., Tit. 22, §§ 1555-C(3)(C), 1555-D (second sentence) (2004). We hold that the federal law pre-empts both provisions."

As I said in my previous Rowe essay, when you have a federal law or administrative regulation that arguably conflicts with a state law, the Supremacy Clause of the US Constitution means that federal law "preempts" if the laws appear to be identical or significantly overlap. With respect to personal liberties, however, states can give more protection to its citizens than the federal constitution or laws. This case is not a personal liberty case--it relates to economic regulation. Thus, the question in this case will be whether Maine's laws, which were passed to protect the health of Maine's young people (by requiring certain things of those who ship or deliver tobacco products), overlap with the federal provision bolded above.

Justice Breyer pointed to the central case interpreting a "sister statute" to the 1994 law passed by Congress and quoted above. A parallel provision to the one quoted above of the 1978 law was interpreted by the Court in the 1992 Morales case (504 US 374). The central holding of Morales, as it relates to this case, is as follows:

"In Morales, the Court determined: (1) that “[s]tate enforcement actions having a connection with, or reference to” carrier “ ‘rates, routes, or services' are pre-empted,” 504 U.S., at 384, 112 S.Ct. 2031 (emphasis added); (2) that such pre-emption may occur even if a state law's effect on rates, routes or services “is only indirect,” id., at 386, 112 S.Ct. 2031 (internal quotation marks omitted); (3) that, in respect to pre-emption, it makes no difference whether a state law is “consistent” or “inconsistent” with federal regulation, id., at 386-387, 112 S.Ct. 2031 (emphasis deleted); and (4) that pre-emption occurs at least where state laws have a “significant impact” related to Congress' deregulatory and pre-emption-related objectives, id., at 390, 112 S.Ct. 2031. The Court described Congress' overarching goal as helping assure transportation rates, routes, and services that reflect “maximum reliance on competitive market forces,” thereby stimulating “efficiency, innovation, and low prices,” as well as “variety” and “quality.” Id., at 378, 112 S.Ct. 2031 (internal quotation marks omitted). Morales held that, given these principles, federal law pre-empts States from enforcing their consumer-fraud statutes against deceptive airline-fare advertisements. Id., at 391, 112 S.Ct. 2031. See American Airlines, Inc. v. Wolens, 513 U.S. 219, 226-228, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995) (federal law pre-empts application of a State's general consumer-protection statute to an airline's frequent flyer program)."

Applying Morales to Rowe

When the Court examined the Maine law in the light of this decision, it said:

"In light of Morales, we find that federal law pre-empts the Maine laws at issue here. Section 1555-C(3)(C) of the Maine statute forbids licensed tobacco retailers to employ a “delivery service” unless that service follows particular delivery procedures. Me.Rev.Stat. Ann., Tit. 22, § 1555-C(3)(C). In doing so, it focuses on trucking and other motor carrier services (which make up a substantial portion of all “delivery services,” § 1551(1-C)), thereby creating a direct “connection with” motor carrier services. See Morales, 504 U.S., at 384, 112 S.Ct. 2031. At the same time, the provision has a “significant” and adverse “impact” in respect to the federal Act's ability to achieve its pre-emption-related objectives."

An Exception for the Health of the People?

The State of Maine relied on its historic police power, which would enable it to enact laws to help protect the health of its citizens--in this case by preventing minors from obtaining cigarettes. In Maine's view, federal law does not pre-empt a State's effort to protect its citizens' public health, particularly when those laws regulate so dangerous an activity as underage smoking.

The Court was unsympathetic.

"Despite the importance of the public health objective, we cannot agree with Maine that the federal law creates an exception on that basis, exempting state laws that it would otherwise pre-empt. The Act says nothing about a public health exception. To the contrary, it explicitly lists a set of exceptions (governing motor vehicle safety, certain local route controls, and the like), but the list says nothing about public health."

Thus, the unanimous conclusion. Justice Ginsburg, writing in concurrence, would encourage Congress to pass some kind of law protecting youth from the perils of smoking, even though she couldn't agree that the State of Maine could do it through its law.

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