Another Rowe to Hoe

Lee Pender | February 25, 2008

There’s been a lot of silliness lately about the Maine cigarette case, with some observers declaring that the recent Supreme Court opinion in Rowe v. New Hampshire Motor Transport Ass’n prevents states from regulating carrier deliveries of interstate wine shipments. Whether honest mistake or disinformation, that assertion might seem plausible from a superficial reading of news reports on the decision, so it’s worth looking into.

This Rowe is a straightforward federal preemption case, affirming a Court of Appeals decision (itself based on a well-known 1992 Supreme Court decision) that a federal statute with a specific preemption clause does just what it says. Enacted in 1994, the motor carrier statute provides: “[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 Maine law struck down as inconsistent with the federal statute attempted to prevent shippers from using interstate motor carriers lacking controls to prevent delivering cigarettes to minors, an objective the justices found worthy, but within the exclusive province of the federal congress.

Why doesn’t that knock out state laws restricting delivery of wine to minors? In the first place, there is a more specific federal statute dealing with alcoholic beverages, which provides: “The shipment or transportation … of any … intoxicating liquor … from one State … into any other State … intended … to be received … in violation of any law of such State … is prohibited.” In other words, federal law specifically authorizes state laws regulating deliveries of wine and adds federal weight to their enforcement. One cannot argue that the liquor statute, passed in 1935, is impliedly repealed by the 1994 motor freight legislation, because they do not exhibit the kind of irreconcilable conflict that evinces congressional intent to repeal the older statute. Well-settled principles of statutory construction in cases of conflict prohibit implied repeal if reconciliation is possible and provide that facially conflicting statutes can be reconciled by allowing the more specific to govern over the general in its particular subject area. Thus, if we had only the two statutes to consider, rules of statutory construction would require that the 1935 act remain in force as a subject matter exception to the more general 1994 enactment. One could quibble about the extent to which states are authorized to dispense with an intent requirement, but there’s no doubt that the federal statutory scheme leaves room for state laws controlling wine deliveries.

It is not, however, merely a matter of two statutes. The second problem with the Chicken Little reading of Rowe is a clincher. The U.S. Constitution states, “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” There is no need to resort to implied congressional intent. The Supremacy Clause says that the U.S. Constitution itself and the laws of the United States shall be the supreme law of the land, a provision that is interpreted to mean, “in that order.” Thus, the same clause that underlies preemption of the Maine cigarette delivery law by a federal statute absolutely prevents preemption of a state wine delivery law by that congressional enactment, provided the state law does not violate some other constitutional provision, e.g., by discriminating against wine produced by persons of a certain race or religion –or by a winery outside the state.