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Tuesday, May 14, 2013

The inevitably phoney textualism of "express" preemption doctrine

Few probably waited with eager anticipation for the SCOTUS to hand down Dan's City Used Cars, Inc. v. Pelkey. To federalism aficionados, however, the opinion illustrates the threadbare quality of the textualist ritual when applied to so-called express preemption cases. The problem is that, for the vast majority of "express" preemption clauses, text does no substantial work: The meaning of the preemption clause generally resides in an opaque prepositional phrase -- "with respect to," "relating to," "based on, "of," etc. -- connecting a noun denoting some category of state law with some noun denoting some category of federally protected activities. Being semantically vacuous, these prepositional phrases cannot really resolve the question of whether a federal statute spares or squashes a state law. Having a textualist axe to grind, however, the Court must pretend to scrape some meaning out of this empty bowl before one goes on to the real business of discerning the unwritten statutory purpose. The result is exegetical hand-waving that distracts the Court from devoting serious attention to the unwritten theory of national interests that is doing the real work in the decision.

Dan's City Used Cars provides a simultaneously entertaining and disheartening illustration of the futility of this semantic exercise.

Dan's City had, at the request of a landlord, towed Mr. Pelkey's Honda Civic off the landlord's parking lot so the lot could be plowed. Mr. Pelkey was seriously ill and never got notice of the towing. What's worse, Dan's City auctioned off Pelkey's car despite the latter's informing the towing company that Pelkey wanted to pay the charges and recover the car, as he was entitled to do under the applicable New Hampshire law. Pelkey sued Dan's City under New Hampshire's consumer protection laws in combination with New Hampshire's statute defining and regulating landowners' entitlement to have unwanted cars removed from their property at the car owner's expense. In response, Dan's City raised the defense of preemption under the Federal Aviation Administration Authorization Act of 1994 (the "FAAAA"), a statute that completed the deregulation of the trucking industry begun in 1982 by removing state laws that (in the words of the preemption clause) "related to a price, route, or service of any motor carrier ... with respect to the transportation of property." 49 U.S.C. section 14501(c)(1).

Taking the language of this preemption clause literally, one would have to conclude that New Hampshire's laws regulating the removal of abandoned vehicles are preempted. The property owner who requests the removal of an abandoned or illegally parked vehicle seeks to obtain the "service" of the "transportation of property." The state law defining the terms under which the property can be sold to compensate the towing provider plainly regulates this towing service "with respect to the transportation of property": The whole point of the auction is, after all, to pay for precisely that transportation. As if to reenforce this literal reading, the FAAAA specifically exempts from preemption those state laws "relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle." 49 U.S.C. section 14501(c)(2) Expressio unius est exclusio alterius: Having deliberately exempted state laws regulating the price of towing services, the canonical inference is that Congress did not mean to exempt state laws regulating other aspects of towing.

The problem with this textualist case for preemption, of course, is that it extends the scope of preemption beyond any likely congressional purpose. One can save from preemption generally applicable laws of contract, tort, property, crimes, and so forth by assuming that, unless state laws single out motor carriers, they are not "related to a [motor carrier's] price, route, or service." Even preserving those generally applicable laws, however, there are still a lot of state rules that single out motor carriers or the trucking industry on grounds other than those enumerated in the statutory exemptions. A candid Court would acknowledge that the FAAAA's preemption clause is invitation to explore the federal statute's unwritten purpose in supplanting state law. Looking to this purpose, SCOTUS would conclude that Congress meant to eliminate state laws having the same aims as those federal trucking regulations that were eliminated in 1982 -- that is, state laws that replace market forces with state regulations even when there was no special reason to believe that markets for trucking services are prone to failure. State rate-making for interstate truckers would certainly be excluded on this reading, but state tort law's imposing a special duty of care on drivers of eighteen-wheeler rigs would pass muster. The former can be handled by contract between shippers and carriers; The latter cannot be governed by bargains between carriers and those persons that they happen to squish.

Dan's Used Cars, however, avoided such functional reasoning and instead pretended that text divorced from the evident statutory purpose had resolving power. On the Court's reasoning, the phrase "with respect to the transportation of property" excluded from its scope state laws regulating the storage of property after the property had stopped moving, because property at rest was not part of any "transportation." Because Pelkey "seeks redress only for ... conduct occurring after the car ceased moving and was stored" (Slip opinion at 9), the Court concluded that Pelkey's claim was not a regulation "with respect to the transportation of property."

As a textual argument, this is threadbare. The auction that Pelkey sought to prevent was precisely the mechanism for financing the transportation that, according to the Court, New Hampshire cannot regulate. How could the state law bar the very mechanism by which "transportation" is financed and yet somehow not be a law "with respect to the transportation"? Moreover, there is implicit in the Court's distinction between post-movement auctions and pre-storage movement a complete lack of any sensible policy. Is the SCOTUS really suggesting that a state cannot regulate towing services before they begin (say, by forbidding towing companies from hauling off cars unless parking restrictions are clearly posted) but they can regulate such services after they are completed?

Of course not: SCOTUS's textualism was patently pretextual. The real work was being done offstage by the sheer silliness of imagining that Congress wanted to eliminate state laws governing towing rules without substituting any federal laws to take their place. Indeed, the SCOTUS implicitly conceded as much when, near the end of the opinion, the Court dismissed Dan's City's textual arguments relying on the absurd implications of a literal enforcement of the preemption clause. The literal reading would, according to the Court, preempt "zoning regulations" governing "the physical location of motor-carrier operations" -- an outcome that, SCOTUS asserted, it was "hardly doubtful" that Congress wanted to avoid. Likewise, literal enforcement would eliminate the very abandoned vehicle law on which Dan's City relied to authorize its towing in the first place. Again, "no such design can be attributed to a rational Congress."

In the end, then, the result was really driven by the Court's imagining what a "rational Congress' would want. The casuistry of parsing the distinction between moving tow trucks and Hondas at rest was window-dressing, allowing the Court to march along in its invisible textualist suit even when even a child can tell that the emperor has no text.

Posted by Rick Hills on May 14, 2013 at 03:30 AM | Permalink


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