In the otherwise unremarkable preemption case American Trucking Associations, Inc. v. City of Los Angeles, decided by the Supreme Court last week, Justice Thomas made two notable points in concurrence. The Court unanimously held that the City's regulations of off-site parking by trucks using the Port of Los Angeles were preempted by the Federal Aviation Administration Authorization Act (FAAA) -- understandably, since FAAA declares that it preempts any state “law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.”
Justice Thomas objected that:
The Constitution grants Congress authority “[t]o regulate Commerce . . . among the several States.” Art. I, §8, cl. 3 (emphasis added). Section 14501 of Title 49 is titled “Federal authority over intrastate transportation.” (Emphasis added.) The tension between §14501 and the Constitution is apparent, because the Constitution does not give Congress power to regulate intrastate commerce. United States v. Lopez, 514 U. S. 549, 587, n. 2 (1995) (THOMAS, J., concurring). Nevertheless, §14501(c)(1) purports to pre-empt any state or local law “related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” By its terms, §14501(c) would pre-empt even a city ordinance establishing a uniform rate for most transportation services originating and ending inside city limits, so long as the services were provided by a motor carrier. Such an extraordinary assertion of congressional authority cannot be reconciled with our constitutional system of enumerated powers.
As applied to the facts of the case, Thomas continued:
Drayage trucks that carry cargo into and out of the Port of Los Angeles undoubtedly operate within the “channels of interstate commerce”—for that is what a port is. Congress can therefore regulate conduct taking place within the port. But it is doubtful whether Congress has the power to decide where a drayage truck should park once it has left the port or what kind of placard the truck should display while offsite. Even under the “substantial effects” test, which I have rejected as a “‘rootless and malleable standard’ at odds with the constitutional design,” Gonzales v. Raich, 545 U. S. 1, 67 (dissenting opinion) (quoting United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring)), it is difficult to say that placards and parking arrangements substantially affect interstate commerce. Congress made no findings indicating that offsite parking—conduct that falls within the scope of the States’ traditional police powers—substantially affects interstate commerce. And I doubt that it could.
He nonetheless joined the Court's opinion because the City had not raised the argument. One might be tempted to dismiss the concurrence as idiosyncratic -- but it might also point the way for future federalism challenges (challenges which might be more palatable to the Court than the challenges to the Affordable Care Act, or even to the federal marijuana laws in Gonzales v. Raich).
(Some related comments here by Ilya Shapiro at Cato@Liberty, who adds: "here’s an easy practice tip: Don’t just assume that the federal government has the power to pass the law you don’t want applied to your client.")
Thomas also made a related point that seems obvious but has eluded some commentators:
The Supremacy Clause provides the constitutional basis for the pre-emption of state laws. Art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land”). Because the Constitution and federal laws are supreme, conflicting state laws are without legal effect. See Crosby v. National Foreign Trade Council, 530 U. S. 363, 372 (2000). However, the constitutional text leaves no doubt that only federal laws made “in Pursuance” of the Constitution are supreme. See Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) (“As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States” (emphasis added)); Wyeth v. Levine, 555 U. S. 555, 583–587 (2009) (THOMAS, J., concurring in judgment).
Given this limitation, Congress cannot pre-empt a state law merely by promulgating a conflicting statute—the preempting statute must also be constitutional, both on its face and as applied…
I've heard it argued that the "in Pursuance thereof" language in Article VI does not have this effect -- that is, that it means simply laws enacted according to the procedures specified in the Constitution. But that does not seem the best reading of the text -- it's hard to say that a law is "in pursuance" of the Constitution when it is actually contrary to the Constitution. I don't know of any history supporting the limited view, and there's a good bit supporting Justice Thomas' account. For example, Hamilton in Federalist 33:
But it will not follow ... that acts of the [federal government] which are not pursuant to its constitutional powers, but which are invasions of the residual authorities of the [states], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such (emphasis in original).
Additional founding era authorities are collected in The Constitution's Text in Foreign Affairs, pp. 459 n. 14.
FURTHER NOTE: On the other hand, I think Justice Scalia, writing for the majority, has the preemption analysis mostly right in yesterday's decision in Arizona v. Inter-Tribal Council of Arizona. Here's my view from back when review was granted (arguing, as the Court later found, that the federal voter regsitration law preempts additional voter registration requirements Arizona sought to impose).
But Thomas' dissenting opinion in Inter-Tribal Council is worth considering: he argues, relying heavily on founding era sources, that the states have exclusive power to set voting qualifications and to determine whether those qualifications are met. As a result, he concludes (in accordance with his opinion in the trucking case) that there is no preemption because the federal voter registration law is unconstitutional.
Justice Scalia's majority opinion does not really engage the question, saying only:
The [Elections] Clause [Art. I, §4, cl. 1] empowers Congress to pre-empt state regulations governing the “Times, Places and Manner” of holding congressional elections. …
The Clause’s substantive scope is broad. “Times, Places, and Manner,” we have written, are “comprehensive words,” which “embrace authority to provide a complete code for congressional elections,” including, as relevant here and as petitioners do not contest, regulations relating to “registration.” Smiley v. Holm, 285 U. S. 355, 366 (1932); see also Roudebush v. Hartke, 405 U. S. 15, 24–25 (1972) (recounts); United States v. Classic, 313 U. S. 299, 320 (1941) (primaries). In practice, the Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.” Foster v. Love, 522 U. S. 67, 69 (1997) (citation omitted). The power of Congress over the “Times, Places and Manner” of congressional elections “is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith.” Ex parte Siebold, 100 U. S. 371, 392 (1880).
That's pretty close to just assuming that Congress has power to pass voter registration laws. And I admit that in my prior analysis of the case I (like the City in the trucking case) did assume the federal law was constitutional and that the only question was whether the state law conflicted with it. As Ilya Shapiro says, we all need to learn from Justice Thomas that the first question in a preemption case is whether the federal law is constitutional.