ROWE, ATTORNEY GENERAL OF MAINE v. NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION ET AL.
No. 06-457
SUPREME COURT OF THE UNITED STATES
Argued November 28, 2007—Decided February 20, 2008
552 U.S. 364
Beth S. Brinkmann argued the cause for respondents. With her on the brief were Paul T. Friedman, Ruth N. Borenstein, and Lawrence R. Katzin.
Douglas Hallward-Driemeier argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Mark B. Stern, Christine N. Kohl, Paul M. Geier, and Dale C. Andrews.*
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.
I
A
In 1978, Congress “determin[ed] that ‘maximum reliance on competitive market forces‘” would favor lower airline fares and better airline service, and it enacted the Airline
In 1980, Congress deregulated trucking. See Motor Carrier Act of 1980, 94 Stat. 793. And a little over a decade later, in 1994, Congress similarly sought to pre-empt state trucking regulation. See Federal Aviation Administration Authorization Act of 1994, 108 Stat. 1605–1606; see also ICC Termination Act of 1995, 109 Stat. 899. In doing so, it borrowed language from the Airline Deregulation Act of 1978 and wrote into its 1994 law language that says: “[A] State . . . may not enact or enforce a law . . . related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.”
The State of Maine subsequently adopted An Act To Regulate the Delivery and Sales of Tobacco Products and To Prevent the Sale of Tobacco Products to Minors, 2003 Me. Acts p. 1089, two sections of which are relevant here. The first section forbids anyone other than a Maine-licensed tobacco retailer to accept an order for delivery of tobacco.
The second section forbids any person “knowingly” to “transport” a “tоbacco product” to “a person” in Maine unless either the sender or the receiver has a Maine license.
B
Respondents, several transport carrier associations, brought this lawsuit in federal court, claiming that federal law pre-empts several sections of Maine‘s statute. The District Court held (among other things) that federal law pre-empts the portions of the two sections we have described, namely, the “recipient-verification” provision (
A
In Morales, this Court interpreted the pre-emption provision in the Airline Deregulation Act of 1978. See 504 U. S., at 378. And we follow Morales in interpreting similar language in the 1994 Act before us here. We have said that “when judiсial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its judicial interpretations as well.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 85 (2006) (internal quotation marks and alteration omitted). Here, the Congress that wrote the language before us copied the language of the air-carrier pre-emption provision of the Airline Deregulation Act of 1978. Cоmpare
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 (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 (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 (emphasis deleted);
Finally, Morales said that federal law might not pre-empt state laws that affect fares in only a “tenuous, remote, or peripheral . . . manner,” such as state laws forbidding gambling. 504 U. S., at 390 (internal quotation marks omitted). But the Court did not say where, or how, “it would be approрriate to draw the line,” for the state law before it did not “present a borderline question.” Ibid. (internal quotation marks omitted); see also Wolens, supra, at 226.
B
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.
At the same time, the provision has a “significant” and adverse “impact” in respect to the federal Act‘s ability to
We concede that the regulation here is less “direct” than it might be, for it tells shippers what to choose rather than carriers what to do. Nonetheless, the effect of the regulation is that carriers will have to offer tobacco delivery services that differ significantly from those that, in the absence of the regulation, the market might dictate. And that being so, “treating sales restrictions and purchase restrictions differently for pre-emption purposes would make no sense.” Engine Mfrs. Assn. v. South Coast Air Quality Managemеnt Dist., 541 U. S. 246, 255 (2004). If federal law pre-empts state efforts to regulate, and consequently to affect, the advertising about carrier rates and services at issue in Morales, it must pre-empt Maine‘s efforts to regulate carrier delivery services themselves.
Section 1555–D‘s “deemed to know” provision applies yet more directly to motor-carrier services. The provision creates a conclusive presumption of carrier knowledge that a shipment contains tobacco when it is marked as originating from а Maine-licensed tobacco retailer or is sent by anyone Maine has specifically identified as an unlicensed tobacco retailer. That presumption means that the Maine law imposes civil liability upon the carrier, not simply for its knowing
Maine replies that the regulation will impose no significant additional costs upon carriers. But even were that so (and the carriers deny it), Maine‘s reply is off the mark. As with the recipient-verification provision, the “deemed to know” provision would freezе in place and immunize from competition a service-related system that carriers do not (or in the future might not) wish to provide. Supra, at 371–372. To allow Maine to insist that the carriers provide a special checking system would allow other States to do the same. And to interpret the federal law to permit these, and similar, state requirements could easily lead to a patchwork of state service-determining laws, rules, and regulations. That state regulatory рatchwork is inconsistent with Congress’ major legislative effort to leave such decisions, where federally unregulated, to the competitive marketplace. See H. R. Conf. Rep., at 87. If federal law pre-empts state regulation of the details of an air carrier‘s frequent flyer program, a program that primarily promotes carriage, see Wolens, supra, at 226–228, it must pre-empt state regulation of the essential details of a motor carrier‘s system for picking up, sorting, and carrying goods—essential dеtails of the carriage itself.
C
Maine‘s primary arguments focus upon the reason why it has enacted the provisions in question. Maine argues for an exception from pre-emption on the ground that its laws help it prevent minors from obtaining cigarettes. In Maine‘s
Despite the importance of the public health objеctive, 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. See
Maine‘s argument for an implied “public health” or “tobacco” exception to federal pre-emption rests largely upon (1) legislative history containing a list of nine States, with laws resembling Maine‘s, that Congress thought did not regulate “intrastate prices, routes and services of motor carriers,” see H. R. Conf. Rep., at 86; and (2) the Synar Amendment, a law that denies States fedеral funds unless they forbid sales of tobacco to minors, see
Maine‘s inability to find significant support for some kind of “public health” exception is not surprising. “Public health” does not define itself. Many products create “public health” risks of differing kind and degree. To accept Maine‘s justification in respect to a rule regulating services would legitimate rules regulating routes or rates for similar public health reasons. And to allow Maine directly to regulate carrier services would permit other States to do the same. Given the number of States through which carriers travel, the number of products, the variety of potential adverse public health effects, the many different kinds of regulatory rules potentially available, and the difficulty of finding a legal criterion for separating permissible from impermissible public-health-oriented regulations, Congress is unlikely to have intended an implicit general “public health” exception broad enough to cover even the shipments at issue here.
This is not to say that this federal law generally pre-empts state public health regulation: for instance, state regulation that broadly prohibits certain forms of conduct and affects, say, truckdrivers, only in their capacity as members of the public (e. g., a prohibition on smoking in certain public places). We have said that federal law does not pre-empt state laws that affect rates, routes, or services in “too tenuous, remote, or peripheral a manner.” Morales, 504 U. S., at 390 (internal quotation marks omitted). And we have written that the state laws whose “effect” is “forbidden” under federal law are those with a “significant impact” on carrier rates, routes, or services. Id., at 388, 390 (emphasis added).
In this case, the state law is not general, it does not affect truckers solely in their capacity as members of the general public, the impact is significant, and the connection with trucking is not tenuous, remote, or peripheral. The state
Maine adds that it possesses legal authority to prevent any tobacco shipments from entering into or moving within the State, and that the broader authority must encompass the narrower authority to regulate the manner of tobacco shipments. But even assuming purely for argument‘s sake that Maine possesses the broader authority, its conclusion does not follow. To accept that conclusion would permit Maine to regulate carrier routes, carrier rates, and carrier services, all on the ground that such regulation would not restrict carriage of the goods as seriously as would a total ban on shipments. And it consequently would severely undermine the effectiveness of Congress’ pre-emptive provision. Indeed, it would create the very exception that we have just rejected, extending that exception to all other products a State might ban. We have explained why we do not believe Congress intended thаt result. Supra, at 373–375 and this page.
Finally, Maine says that to set aside its regulations will seriously harm its efforts to prevent cigarettes from falling into the hands of minors. The Solicitor General denies that this is so. He suggests that Maine, like other States, can prohibit all persons from providing tobacco products to minors (as it already has, see
For these reasons, the judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE GINSBURG, concurring.
Today‘s decision declares key portions of Maine‘s Tobacco Delivery Law incompatible with the Federal Aviation Administration Authorization Act of 1994 (FAAAA). The breadth of the FAAAA‘s preemption language,
Tobacco use by children and adolescents, we have recognized, may be “the single most significant threat to public health in the United States.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 161 (2000). But no comprehensive federal law currently exists to prevent tobacco sellers from exploiting the underage market. Instead, Congress has encouraged state efforts. Congress has done so by providing funding incentives for the States to pass legislation making it unlawful to “sell or distribute any [tobacco] product to any individual under the age of 18.” Synar Amend-
State measures to prevent youth access to tobacco, however, are increasingly thwarted by the ease with which tobacco products can be purchased through the Internet. “As cyberspace acts as a risk-free zone where minors can anonymously purchase tobacco, unrestricted online tobacсo sales create a major barrier to comprehensive youth tobacco control.” Brief for Tobacco Control Legal Consortium et al. as Amici Curiae 10 (footnote omitted). See also Brief for California et al. as Amici Curiae 9 (“Illegal Internet tobacco sales have reached epidemic proportions.“).
Maine and its amici maintain that, to guard against delivery of tobacco products to children, “the same sort of age verificаtion safeguards [must be] used when tobacco is handed over-the-doorstep as . . . when it is handed over-the-counter.” Brief for Petitioner 8; Brief for California et al. as Amici Curiae 11; Brief for Tobacco Control Legal Consortium et al. as Amici Curiae 11–12; cf. Brief for United States as Amicus Curiae 16. The FAAAA‘s broad preemption provisions, the Court holds, bar States from adopting this sensible enforcement strategy. While I join the Court‘s opinion, I doubt that the drafters of the FAAAA, a statute designed to deregulate the carriage of goods, anticipated the measure‘s facilitation of minors’ acсess to tobacco. Now alerted to the problem, Congress has the capacity to act with care and dispatch to provide an effective solution.
JUSTICE SCALIA, concurring in part.
I join the opinion of the Court, except those portions (ante, at 370, 373, and 374) that rely on the reports of committees of one House of Congress to show the intent of that full House and of the other—with regard to propositions that are apparent from the text of the law, unnecessary to the disposition of the case, or both.