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Another Rowe to Hoe

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 One cannot argue that the liquor statute, passed in 1935, is impliedly repealed by the 1994 motor freight legislation, because they do not exhibit the kind of irreconcilable conflict that evinces congressional intent to repeal the older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.

2 Comments

  1. Mr. Houchins’ article might lead you to believe that the recent Supreme Court decision in the Rowe does not apply to alcohol, and disputes WSWA’s interpretation of that decision, implying that it is either “silliness” or disinformation.

    I will be happy to let noted 7th Circuit Chief Jurist Frank Easterbrook who, in hearing the oral argument arising out of the appeal of an Indiana district court face-to-face decision, asked whether “after Rowe, is it lawful for anybody to ship wine in Indiana since it is now impossible to insist that the carrier verify age on delivery,” because “[T]he Supreme Court has held that that such a law is preempted.” Respect fellow jurist Richard Posner voiced the same interpretation.

    Rowe is a problem for those that advocate for direct shipping, because it means that states can no longer hold carriers accountable through age verification requirements.

    Mr. Houchins ill-serves those who are interested in understanding the issues surrounding direct shipping by trying to understate the scope and importance of the Rowe decision. Rowe is relevant and controlling – something WSWA has argued – and it is a perspective at least two distinguished federal court judges have acknowledged and accepted.

  2. Mr. Wolf makes it sound as though the only possible interpretation of the Rowe decision is the one that WSWA has advanced. But we’ve seen what courts have done with the WSWA’s view of the law in a number of cases, not the least of which is Granholm v. Heald. I would also note that the 7th Circuit also got it wrong with regard to direct shipping in one of the early direct shipping cases: Bridenbaugh—a case where the 7th Circuit’s reasoning was eventually contradicted by the Supreme Court.

    The “Appeal to Authority” argument that Mr. Wolf makes here, and which, as we can see, is so easily dismissed, is not considered the best way to approach a discussion. Rather, the facts of someone’s argument (in this case Mr. Houchin’;s) should be taken on directly if we are to take any rebuttal seriously. Perhaps Mr. Wolf will come back and actually address the points that Courbin Houchins makes in this article.

    What’s interesting is that Mr. Wolf and wholesalers in general like to lean on the 21st Amendment to justify all sorts of exceptions to standard, constitutional law. Yet when an instance arises when it’s not in their interests to take into account the 21st Amendment’s “exceptional” nature, they tend to ignore it. What says Mr. Wolf to the notion that:

    “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.”

    We don’t know exactly what Mr. Wolf thinks since he’s either too busy or unwilling to address this critical point.

    There is also the critical point that in striking down a Maine law requiring common carriers to obtain signatures of those having cigarettes shipped to them, the Supreme Court simply found that states could not independently force a third party carrier to take responsibility for the product because carriers in interstate commerce are regulated by federal law, not state law, and are not the sellers of the product. This did NOT adversely affect any law or regulation requiring a retailer or winery, not the shipping company, to verify the age of the recipient of wine via the signature of someone over 21. All wine direct shipping regulations place the responsibility for verifying the age of the recipient of the wine on the winery or retailer, not the common carrier.

    Perhaps Mr. Wolf will find time to address this point, rather than simply arguing, “Nuh uh!!!”

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