City of Columbus v. Ours Garage and Wrecker Service - Oral Argument

Argument of Jeffrey S. Sutton

Chief Justice Rehnquist: We'll hear argument now in No. 01-419, City of Columbus v. Ours Garage and Wrecker Service, Inc.-- Mr. Sutton.

Mr. Sutton: Thank you, Mr. Chief Justice.

May it please the Court: The question presented in this case is whether Congress in 1994 divested the States of their traditional authority to delegate police powers over local safety matters to their political subdivisions.

It would be no small matter for Congress to impose such a restriction on the States, and we submit they did no such thing in this instance.

In making that point, it may be helpful to look at the text of the statute, which is reprinted in full in the appendix to our brief, the blue brief.

And page A-2 of that appendix specifically repeats the language of (c)(2)(A), the operative provision at issue here.

And our first point, as a matter of the language of the statute, is that Congress specifically said that the preemption provision, quote, "shall not restrict the safety regulatory authority of a State."

Now, prior to 1994, Ohio, the State of Ohio, had exercised regulatory authority in this area by delegating its power specifically over tow truck regulations to local political subdivisions.

It's very difficult for us to understand how the court of appeals interpretation does not in fact, quote, "restrict the safety regulatory authority of a State."

That's--

Chief Justice Rehnquist: Well, I think the argument on the other side, Mr. Sutton, is that the first section (a)(1) does say, no State or political subdivision thereof and no interstate agency.

It talks about a political subdivision so that when you come down to the section you've just quoted, and it only says State, there's perhaps a fair inference that only a State and not a political subdivision is included.

Mr. Sutton: --Yes, Your Honor.

And the normal Russello argument is that a litigant like myself is trying to read into another provision a term that is specifically mentioned elsewhere in the statute.

Here the suggestion is that we're trying to read the term, political subdivision, into (c)(2)(A).

That's not what we're trying to do.

What we're saying is the traditional safety regulatory authority of a State was preserved by (c)(2)(A) and traditionally States, including Ohio, had specifically exercised that authority by delegating it in some instances to State executive branch agencies and in other instances, specifically here, to political subdivisions.

Justice Kennedy: Would your argument be the same if the State had not made a specific delegation?

Did it make a specific delegation with respect to tow trucks?

Mr. Sutton: Actually it did, although it's... it's backwards, in the sense that they generally regulate all motor carriers at the State level, but they exempted tow trucks, therefore allowing political subdivisions like Columbus to enact their own tow truck ordinances.

So, in fact, in this case it would be specific, although I wouldn't say our argument rests on that point.

Many States like Ohio are home rule States, which in their constitutions give general grants to political subdivisions to have powers of local self-government.

So, in this case, I... I would say it's a little easier because there was something specific as to tow trucks, but I wouldn't say that our argument rests on that point.

Justice Scalia: Mr. Sutton, would... would you look a little further down in, in the provision set forth in the appendix to your brief?

Look on page A-3.

You were reading from (c)(2)(A)--

Mr. Sutton: Yes, Your Honor.

Justice Scalia: --in which it says, shall not restrict the safety regulatory authority of a State.

And you say that includes, you know, political subdivisions of a State.

Mr. Sutton: No.

That it includes the right to delegate political subdivisions.

Justice Scalia: All right.

Okay.

Just read two... two lines later, (2)(C) where it says, does not apply.

Mr. Sutton: Right.

Justice Scalia: Again, it uses the same... shall not restrict, does not apply to the authority of a State, or a political subdivision of a State, to enact or enforce a law, regulation, or other provision.

Why in that provision does it say does not apply to a State or a political subdivision?

Because you're telling us, when you say State, it includes whatever authority the State has to delegate to a political subdivision.

Mr. Sutton: We're not saying--

Justice Scalia: You wouldn't have--

Mr. Sutton: --We're not--

Justice Scalia: --you wouldn't have needed that language there.

Mr. Sutton: --We're not saying States are political subdivisions.

We're simply saying the preservation of a State, deregulatory authority of a State includes the power to delegate.

But as to (c)(2)(C), keep in mind that was a 1995 amendment.

That was not part of the original legislation.

So, the suggestion would be that Congress's--

Justice Scalia: Well--

Mr. Sutton: --style in 1995 modified the 1994 act.

And no one is arguing--

Justice Scalia: --I think we always look at an act in toto and... and don't try to piece it apart as to what was enacted when.

It seems to me we have to make sense of this statute as a whole.

Mr. Sutton: --That's... that's true, Your Honor.

But I... in O'Gilve, the Court said specifically that a later act cannot modify the terms of an earlier act.

But let me... I think there's another answer that--

Justice Scalia: It doesn't modify it, but it... it can give clear indication of what... of what it meant.

I mean, you're assuming that it modifies it.

Mr. Sutton: --Right.

Well, Your Honor, the... the thing that I think may be helpful in thinking about (c)(2)(C) and the other mentions of political subdivision throughout 14501 is they're all in the context of... context of the enact or enforce language, which is exactly how (c)(1) reads.

(c)(1) says these political bodies may not enact or enforce these particular laws.

That, of course, is not the way (c)(2)(A) or, for that matter, (a)(2)... (a)(2) does exactly the same thing.

It preserves the safety regulatory authority of the State over these various other provisions elsewhere identified in title 49.

When it comes to (c)(2)(C), it's dealing with a topic specifically mentioned in (c)(1), prices.

And it follows the exact same structure of (c)(1), not surprisingly, because it's dealing with a topic that is covered in (c)(1).

(c)(2)(A)--

Justice Ginsburg: Mr. Sutton, are you making the distinction there between the safety regulations which would be covered under (c)(2) and the economic regulation which would be the main prohibition?

Mr. Sutton: --Exactly, Your Honor.

And there was a division of authority, going back to 1966, where the old ICC had regulated all of the economic issues over motor carriers, and the Department of Transportation had regulated all the safety issues.

And what happens in 1994 is they're simply deregulating.

The ICC is deregulating this area.

They wanted to make sure, as this Court said in Morales, that States wouldn't undo that particular deregulatory effort.

But at the same time, as (c)(2)(A) and (a)(2) makes clear, they wanted to preserve the provisions of a separate part of title 49 dealing with safety issues, something that DOT, a separate agency, had always regulated.

And I hope, Justice Scalia, this will help in getting to your... your point.

Justice Ginsburg: There's a--

Mr. Sutton: Oh, I'm sorry.

Justice Ginsburg: --There's a question I think that still would be left open even if you prevail; that is, whether these regulations are appropriately characterized as economic or safety.

You say they're all safety.

Mr. Sutton: Absolutely.

Justice Ginsburg: But that hasn't been adjudicated yet.

Mr. Sutton: Absolutely.

And... and if... if the court of appeals decision would reverse, it would certainly be within the rights of respondents to go back to the Sixth Circuit and say, as to some of these provisions of the Columbus code, they are not in fact safety ordinances or safety provisions, and therefore they could be regulated as a price, route, or service.

But there's another, I think, important point that responds to this issue of the mention of political subdivisions elsewhere in 14501.

I think there is general agreement in the case that as to (c)(2)(A), all of the other words, every single other word in (c)(2)(A) including, for example, the definition of the term safety, is defined not from 1994 on by looking at the difference of... between safety and price, routes, or services mentioned in (c)(1)... in other words, you would not define safety after 1994 based on its contextual comparison to prices--

Chief Justice Rehnquist: Where... where exactly is (c)(2)(A)?

Mr. Sutton: --Excuse me, Your Honor.

It's on A-2 of our appendix, and it's... it's labeled motor carriers of property.

Excuse me.

I should have made that more clear.

The point I was trying to make is that these other terms in (c)(2)(A) I think all would agree would be defined by other provisions in title 49.

For example, the word safety would be defined by the provisions in chapter 311 of title 49, which is a large... a large section of the code dealing with safety provisions.

It would not be within the States' rights after 1994 to suddenly start reinventing new definitions of safety, new definitions of hazardous materials routing restrictions or size and weight routing restrictions.

We would be stuck with all of those definitions, including notably those preemption provisions.

We think it would be a rather odd interpretation of (c)(2)(A) to say that, yes, you determine the meaning of all of these preserved matters by reference to other parts of title 49, but you do not do so when it comes to what the meaning of safety regulatory authority of a State is.

And when you look at those other provisions of title 49, it's quite clear that Congress contemplated in all of them... routing restrictions, safety... that States could delegate their power to local subdivisions.

That's not only in some of the statutory provisions, but it's in the regulations.

Justice Scalia: Well, but it's not defined.

It doesn't... there's not a definition that says, State includes political subdivision of a State.

Mr. Sutton: That's not our argument, Your Honor.

We're not saying a State--

Justice Scalia: I understand it's not your argument.

Mr. Sutton: --We're not saying--

Justice Scalia: It would be a stronger argument if that were your argument.

That... that's my point.

[Laughter]

Mr. Sutton: --I... I disagree, Your Honor.

We're not saying that... Congress... let me put it this way.

Congress has no right to empower a city.

Congress can't create a city.

They can't give it a power.

That's a power the States have.

It made perfect sense in (c)(2)(A) to preserve the safety regulatory authority of a State because it's the State legislature's job to determine what other political bodies, if any, regulate in that area.

Justice Kennedy: Well, in that connection, I was going to ask could this... suppose that you do not prevail in this case and we accept the respondents' interpretation.

Could the State then every year have a cleanup statute in which it says the State hereby adopts... or authorizes cities that are no less than X number of persons, no greater than Y number of persons, obviously referring to the City of Columbus, that... that the State then allows specifically Columbus to regulate, that it have an ordinance and it just tracks the whole ordinance?

Mr. Sutton: Absolutely, Your Honor.

And that we think--

Justice Kennedy: So, then we're not arguing about very much in your view.

Mr. Sutton: --Well, Your Honor, that would strike me as an extraordinary hoop for Congress to ask the States to step through.

We're not aware of a single statute that this Court has ever construed to mean that State legislatures alone, but not their political subdivisions, can regulate a particular area.

I'm not aware of a single statute where that's ever happened.

Justice Breyer: There's a... there's a problem with cities when you get to safety regulation for trucks.

Can you give me an example of a safety regulation that a city might want to have that wouldn't have a negative impact or some impact on routes?

Mr. Sutton: Right.

Excuse me?

The last word?

Justice Breyer: On routes.

Mr. Sutton: Right.

The... and I think the respondents' point is or suggestion is that it would be quite natural for Congress to say, as to routing restrictions, we want uniform laws.

We want them to be the same throughout the State, and we don't want to bother with municipalities establishing different regulations for a routing restriction.

Well, the... the whole point of a routing restriction is to account for differences within the topography or geography of the States.

Justice Breyer: Yes, but I mean, there's a long history in the ICC of trying to create, say, dynamite truck routes.

Well, you can imagine what something like that does once you start talking about it within the city.

And... and every neighborhood in sight says, send it somewhere else.

So, it's not illogical that people who are worried about creating uniformity of routes would say, keep the cities out of this.

It's... it's a nightmare.

And... and... but I have no reason to know whether this is so or not.

And so I ask you, is there any kind of safety regulation that doesn't get into that kind of routing nightmare when you talk about cities?

Mr. Sutton: Well, hazardous... I... I don't think the general rule has been that either the Federal Government or the States have been concerned about heavily populated regions deciding, for example, to route hazardous materials around their beltway as opposed to through the middle.

Everyone thinks that's a good idea, and the cities generally, including Columbus, have been left in control of that kind of decision, which is something obviously one doesn't need to worry about--

Justice Breyer: But I'm looking for specifically--

Mr. Sutton: --In a size and weight situation, of course, you're going to situations where bridges or particular roads in, you know, densely populated areas require different rules than in rural regions of a State where, for example, the roads are bigger and even if they're not bigger, they're not as near to either businesses or heavily populated areas.

Chief Justice Rehnquist: --How about a restriction that on a particular residential street that's, nonetheless, an arterial highway, no trucks over 10 tons?

Mr. Sutton: Could... could a... a... the question, first of all, would be whether that relates to interstate commerce, and if it relates to interstate commerce... that is, commerce between States... then the Department of Transportation is... is going to very heavily regulate that particular route restriction and... and has authority to preempt it, even as a matter of regulation.

If it's purely intrastate, traditionally that's been something that Congress or the agencies hardly regulated at all, and to the extent they regulated them, it was only when there was Federal funding.

But for the most part, the regime has been that a locality makes that decision through a delegation of power from their State legislature.

Justice Stevens: Mr. Sutton, can I ask you, do you regard... just assume the... assume the other side is right on their interpretation.

Would that mean that a city could not fix speed limits in neighborhoods?

Speed limit is a safety regulation, isn't it?

Mr. Sutton: It is, Your Honor, but title 49... I think it's 31147... specifically says that traffic laws... I think a speeding limit would fall under that--

Justice Stevens: It would be a traffic law?

Mr. Sutton: --is something that the Department of Transportation does not regulate and neither does Congress, which to me is one more indicator that you don't, after 1994, start having free-form debates about what safety means.

Justice Stevens: But even if the... if it's not federally regulated, would there, nevertheless, not be preemption under their interpretation of this provision of speed limit rules?

Mr. Sutton: On what ground?

I mean, it would have to be a price, route, or service for there to be preemption.

Justice Stevens: No.

I mean, if... if you read the (c)(2)(A)--

Mr. Sutton: As... I see what you're saying.

Justice Stevens: --as... as saying only States are... can... are... preserve the right to... to regulate safety--

Mr. Sutton: Right.

Justice Stevens: --it seems to me that would preempt a local government's right to fix a 15-mile limit in a school zone.

Mr. Sutton: I understand what you're saying.

I think the position they would take... and maybe they could clarify this... is that if it's not a price, route, or service, you ignore (c)(2)(A), and you simply go to the rest of title 49.

But I'm not... I don't know the answer to that.

If I could make one more point, Justice Scalia, and I hope this responds somewhat to the point you raised earlier.

State laws, even if you think of them as State legislative acts, are being preempted in this case.

Let's ignore the State of Ohio.

New York.

The State of New York says as to populations with more than 1 million people, the cities in... those populations can enact tow truck ordinances.

This interpretation that the court of appeals embraced preempts that State law.

There's no... strictly speaking, there's no such thing as a city law divorced from a State law.

The city power comes from the States and there's just no such thing.

And we think, as the lack of parallelism between (c)(1) and (c)(2) indicates, all they were doing was preserving that traditional safety regulatory authority of a State.

If I could save the rest of my time for rebuttal, I'd appreciate it.

Thank you.

Argument of Malcolm L. Stewart

Chief Justice Rehnquist: Very well, Mr. Sutton.

Mr. Stewart, we'll hear from you.

Mr. Stewart: Mr. Chief Justice, and may it please the Court: The phrase, safety regulatory authority of a State, in section 14501(c)(2)(A) is most naturally read to encompass the State's traditional authority to delegate its powers to political subdivisions.

That view is supported by the larger statutory context in which the phrase appears and by the purposes of the 1994 act.

As Mr. Sutton has explained and as this Court has frequently recognized, one integral component of the State's ability to regulate within its borders is to delegate as much or as little power as it wishes to subordinate political units.

Justice Scalia: We understand all that, of course.

And... and in isolation, that phrase most naturally would... would mean safety regulatory authority of a State, including, of course, its ability to delegate it to municipalities.

But what is sticking in our craw is the fact that elsewhere in the statute, the language is very careful to distinguish between the authority of a State, on the one hand, and the... and the separate authority of political subdivisions of the State.

Now, what... what is your explanation for those other separations?

Mr. Stewart: I guess there are about three responses we would make.

The first is, as Mr. Sutton points out, this is not a case in which the other provisions are identical but for the inclusion of the word political subdivision.

For instance, in subsection (c)(2)(C), which is at the... the top of A-3 of the--

Justice Scalia: Right.

Mr. Stewart: --petitioners' brief, it refers to the authority of a State or a political subdivision of a State to enact or enforce a law.

Now, even though delegating power to municipalities is an integral feature of the State's regulatory authority, it would certainly be less than clear that when a municipality enacted or enforced a law, pursuant to such delegation, it could not necessarily be said that the State had enacted or enforced that law.

And so, if the provision left out political subdivisions and simply said that the preemption rule does not apply to the authority of a State to enact or enforce a law, there would be ambiguity, and Congress... whether it was necessary or not, Congress might rationally choose to eliminate that potential ambiguity through an express reference to political subdivision.

But the phrase that appears in subsection (2)(A) is simply safety regulatory authority of a State, and that, as you say, would most naturally be construed to encompass the authority to delegate power to municipalities.

The second point is that based on the country's traditions, it would certainly be an unusual thing for Congress to interfere with the States' decisions as to the amount of power that should be delegated to subordinate political units.

Justice Kennedy: Has there been any... what's the closest case respondents could cite to show a contrary practice?

Mr. Stewart: I believe the respondents have cited a couple of court of appeals cases which have held--

Justice Kennedy: From this Court?

Mr. Stewart: --None from this Court.

The... the respondents have not cited any case in which this Court has held that any Federal statute had the effect of divesting a State of its authority to delegate power to political subdivisions.

Justice Scalia: Well, there are many Federal statutes that... that make grants to municipalities for various functions and don't make it to the State.

This is a... certainly the Federal Government interfering in the relationship between the State and its municipalities.

And the State has no... no ability to veto whether the municipality is going to accept those funds or not.

And there's... there's been a lot of controversy within the States between the municipalities and the State government as to... as to what money should be accepted and so forth.

It seems to me that has exactly the same effect as what you're talking about here.

The Federal Government has, indeed, indeed, intervened in the relationship between the State and its... and its political subdivisions.

Mr. Stewart: We cited the Lee Deadwood case in our brief as support for the proposition that Congress would constitutionally be authorized to preempt municipal law without preempting State law if it chose.

Our only point is it would be sufficiently unusual that we would expect Congress to address the matter fairly directly.

Justice O'Connor: Mr. Stewart, would you be able to give us any examples of municipal safety regulations that are preempted by this section as it's been interpreted below?

Mr. Stewart: We... I think that as it's been interpreted--

Justice O'Connor: As a practical matter?

Mr. Stewart: --As it's been interpreted below, I believe the types of regulations that have been held preempted are... are fairly similar to the City of Columbus's regulation, namely, a licensing scheme in which the vehicle is inspected, the driver is tested to ensure proficiency in the operation of the vehicle.

And those have been held to be preempted on the ground that they relate to routes--

Justice O'Connor: So, we're really talking about licensing schemes.

Is this anything that the State couldn't undertake to do itself with its State driver's license and so forth?

Mr. Stewart: --I... I think that the licensing scheme, while we would respect Ohio's decision to delegate that to municipalities, it... in truth I think this is something that could fairly realistically be accomplished at the State level.

Now, with respect to some of the other matters that are specified in (c)(2)(A), for instance, route controls based on size and weight or hazardous nature of the cargo, because the determination at issue is whether a particular vehicle or a particular cargo is suitable for a particular stretch of road, those are the sorts of things that can't realistically be expected to be done in their entirety at the State level.

And therefore, it would be a particular disruption of the State's processes--

Justice Stevens: Mr. Stewart, before your time goes out, will you give us your third point too?

You gave us the first two.

Mr. Stewart: --The third point is that to the extent that the provision at issue here is ambiguous and the Court wants to interpret it by reference to other relevant statutory provisions, it is important to examine the larger statutory context.

That is, (c)(2)(A) is not limited to safety.

It specifies these other matters, and as Mr. Sutton was pointing out, the other matters are covered in detail in different provisions of title 49.

In general, those other provisions of title 49 contain their own preemption provisions.

They explain at... at great length what States can and can't do.

At least in the area of safety, State law is specifically defined to include the law of the local governmental unit, and so the... the safety regime in the other parts of title 49 specifically contemplates municipal safety regulation.

And it would be odd to think that Congress, in this oblique way, has superseded that carefully developed statutory framework.

And to put this in larger historical context, to follow up on Mr. Sutton's point, from 1966 to 1995, at the Federal level there was division of regulatory authority between the ICC which did economic regulation and the Department of Transportation which did safety regulation.

And it's no coincidence that State law as to economic matters was preempted at about the same time that the ICC saw its powers diminished and the ICC was eventually eliminated altogether.

This was part of a larger program of deregulating the economics of commercial trucking.

But--

Justice Scalia: Who... who administers this statute?

Is there a Federal agency that... that can be said to be administering this... this statute?

Mr. Stewart: --There... there is no Federal agency entrusted with the administration of this particular statute.

The Department of Transportation administers the related provisions of title 49 that are specifically addressed to these matters, and their implementation of their responsibilities under those provisions would be affected by this Court's decision in this case because if there is no municipal safety regulation at all, that would obviously have an impact on their administration of the scheme for determining when municipal regulation is and is not permitted.

But they are not specifically entrusted with authority over this scheme.

So... so to return to the point about the division of responsibilities, Congress eliminated the ICC, eliminated Federal economic regulation of commercial trucking, and at the same time it preempted State law in order to ensure that the States didn't undo the Federal deregulatory efforts.

But there's been no Federal deregulation in matters of trucking safety.

The prior provisions of title 49 remain on the books.

There's no expression of congressional discontent with the manner in which power in those areas has been divided between the Federal, State, and local governments.

To the contrary, the conference report accompanying the 1994 act refers specifically to those preexisting provisions and expresses the intent that their administration continue unchanged.

Justice Stevens: May I ask this question on the division of responsibility?

Is it your view... your understanding that the cities would not be able in their licensing scheme to regulate the rates that the truckers charge?

Mr. Stewart: That's correct.

If there are no further questions, I have nothing further.

Justice Ginsburg: To what extent, Mr. Stewart, does the Department of Transportation... you said there's no administrator of the statute, but they do have authority under the motor safety... motor carrier safety assistance program that seems to be relevant.

Mr. Stewart: The motor carrier safety assistance program, and they also have authority under other provisions of title 49 to review and declare to be preempted State and local laws... State and local safety laws that apply to transportation in interstate commerce.

Again, those are not provisions of this particular statute.

They are among the preexisting provisions of title 49 that were intended to be preserved by subsection (c)(2)(A).

Argument of Richard A. Cordray

Chief Justice Rehnquist: Thank you, Mr. Stewart.

Mr. Cordray, we'll hear from you.

Justice O'Connor: Mr. Cordray, I hope you'll tell us the practical effects of the decision below.

Mr. Cordray: The practical effect of the decision below, as you uncovered it in your questioning earlier, is that Federal law preempts municipalities and other local governments from imposing their own individual licensing schemes upon motor carriers of property and that is--

Justice O'Connor: Well, it also speaks to routes or weight limitations.

Are there situations where the city or town is particularly aware of traffic problems within the city or a weak bridge or something and that its limitations are needed?

Mr. Cordray: --Size and weight limitations, as the other matters addressed in (c)(2)(A), would be regulated at the State level, not at the local level under the proper reading of this statute.

And the reason is that Congress did not want to open up the trucking industry, where it was attempting to do something new, which is deregulate it nationwide and create an unfettered free market for trucking and transportation services.

Justice Kennedy: So that if a city says no trucks through the park with the public playground between certain hours, that has to be the... the State?

That's the only one that could do that?

Mr. Cordray: That could be done at the State level and it could be done either by going to the State legislature, as you suggested, or it could be done by setting up a very simple administrative scheme at the State level where you would go to the State department--

Chief Justice Rehnquist: Well, why would--

Justice Breyer: --Well, most cities I've been in had--

Chief Justice Rehnquist: --why would Congress choose to... to regulate in that way, say we want the State to do it but not the locality?

Mr. Cordray: --Specifically because they were trying to deregulate this market nationwide.

To leave in place every municipality with the option to license different motor carriers of property is not only--

Chief Justice Rehnquist: No.

I'm not talking about licensing.

I'm talking about the... the example of, say, that no trucks over 10 tons on this particular road.

Mr. Cordray: --Again, I think that petitioners agree and all the courts have agreed that every subsection of (c)(2)(A) has to be read together, and to the extent municipal authority is being preempted in one respect, it's being preempted in all.

And the reason is that Congress was recognizing that schemes directed specifically to motor carriers of property at the local level simply incorporated too much regulation that would interfere with and impede a free market for transportation services and motor carriers--

Justice Stevens: May I ask a similar question?

Supposing that there's a heavy rain storm in a city or something and it becomes unsafe to use a certain street if the truck is over a certain size.

Could... the police would not be permitted to divert the traffic around that particular flooded area, I suppose.

Mr. Cordray: --Certainly they could.

This goes to your question you asked earlier which is whether traffic laws, ordinary, general traffic laws, would be preempted under our--

Justice Stevens: No.

This is for safety reasons.

Mr. Cordray: --statute--

Justice Stevens: They figure it's... it's dangerous because the thing is too deep and the trucks have to over-set... overturn or something like that.

Mr. Cordray: --They... they would be... they would be diverting--

Justice Stevens: It would be preempted, I guess.

Mr. Cordray: --They would be... no.

They would be diverting presumably all traffic that's heavy enough to create a safety problem.

Justice Stevens: Supposing... truck size traffic, yes.

Mr. Cordray: Yes, but... but it's not directed simply to motor carriers of property.

It's directed to all trucks, all oversize vehicles.

It could be private vehicles, RVs that people use to take vacations, whatever it might be.

That would be permissible.

And traffic laws, I want to stress, are not preempted by this statute.

This statute is not limitless.

As this Court has--

Justice Kennedy: Well, then what about the... the answer that you gave earlier to the question that the Chief Justice and I had?

No... no trucks through the playground or... or through a residential neighborhood at a certain time.

I thought you said that would be preempted, but now you're saying it applies only if they're motor carriers of property?

Mr. Cordray: --Let me step back.

If the ordinance related to all oversize vehicles... that would be a general traffic regulation... that would be permissible.

And I'll... and I'll get to that in a moment, why traffic laws are not preempted by the statute.

They... they are not related to price, route, or service of motor carriers of property.

If it was directed specifically to a type of motor carrier of property, as this licensing scheme is... it applies directly, specifically, and only to tow trucks... that would be a different matter.

Municipalities are not permitted to do that, and Congress specifically wanted to do that because although there was a tradition of lots of regulation at the State and local level, Congress was making a policy decision, as it's free to do, to say that all of that is impeding a free market for transportation services and motor carriers that's affecting broad segments of the American economy.

We want to bring down costs, rid us of these inefficiencies--

Justice Breyer: I understand that, but I'm at the same question that I think everyone has asked.

In my mind... and I might be misremembering... there are lots of streets... there used to be in San Francisco and you'd see a sign, and it would say, no trucks over 3-and-a-half tons.

And it seems to me in Boston I can think of seeing signs.

I thought maybe they said, no trucks over such and such.

Maybe they just say no vehicle over such and such.

And my impression is that in many cities there are many such streets, and which streets there are is a matter for the municipality to decide.

And it's a shifting pattern, and typically it's in residential areas.

And there's lots of local regulation of that kind.

That's my impression.

And I want to know, on your reading of this statute, does this change when I'm thinking of those signs on one street after another?

Does that all change because they're preempted, and now each neighborhood has to go to Sacramento, if they're in California, and convince the... the legislature?

I'd be very surprised if that is so, that Congress changed so well established a municipal pattern of behavior without saying anything about it.

And therefore, I think everyone is driving at the same question.

I understand about all the licensing stuff, but I want to know the answer to that question.

Mr. Cordray: --All right.

Again, it's not what's specifically at issue in this case, but I understand the Court wants the answer to the hypothetical.

Absolutely.

Justice Breyer: It has nothing to do with this case.

I'm saying when your... accept the fact that if I accept your position in this case--

Mr. Cordray: Yes.

Justice Breyer: --at the moment I'm thinking all this traditional regulation of what street you can use if you're a truck is being wiped out.

I mean, that's relevant.

Mr. Cordray: It could be dealt with either of two ways, Your Honor.

Either it could be regarded as a general traffic law, like a one-way street, like a speed limit, and the like, in which case we believe that it would not come within the preemption clause ex ante because it has to have a connection with or reference to motor carriers of property to come within the terms of this preemption clause--

Justice Breyer: Motor carriers of property or just motor carriers?

Mr. Cordray: --Motor carriers of property which is what--

Justice Breyer: In other words, if they... if they don't say on the street motor carriers of property cannot use this, then it's not preempted.

Mr. Cordray: --Then it is a general traffic regulation no different from where the speed limit says 55 miles per hour and trucks have to obey it, just as cars do.

And motor carriers--

Chief Justice Rehnquist: Well, does the term, motor carriers of property... does that mean motor carriers of property for hire or any motor carrier that is carrying property?

Mr. Cordray: --Well, it would be those who come within the terms of this specific preemption clause.

Chief Justice Rehnquist: Yes, that's what I want to know.

Which does it mean?

Mr. Cordray: Yes.

I... I believe that this statute is referring to for hire carriers of... motor carriers of property.

Justice Souter: So... so, if a State were to say all prices of all trucks in this State have to be $50... all trucks... and they don't say motor carriers of property, that's not preempted.

Mr. Cordray: No, that is not correct because it's specifically referenced--

Justice Souter: Of course, it's not correct.

And similarly, if they say on a street, no truck can use this street--

Mr. Cordray: --Yes.

Justice Souter: --and they don't say motor carriers of property, it's the same.

Mr. Cordray: The reason is... no.

The reason is that specifically references price.

There are lots of laws that in... tangentially will affect routes.

All right?

A one-way street law, for example, has to be obeyed by trucks, just as it is by cars.

That's not within this preemption clause.

So, that's one way to address it.

All right.

And... and that would be true of all general traffic laws, just as it's true of all general tort laws, general tax laws.

Justice Scalia: Mr. Cordray, on this point, look at on page A-2, (c)(1), the general rule.

It has at the very end of it the phrase, with respect to the transportation of property.

Mr. Cordray: Right.

Chief Justice Rehnquist: Where are you reading from?

Justice Scalia: I'm reading on page A-2, (c)(1), the general rule from which (c)(2) is... is an exception.

And the general rule is, except as provided, blah, blah, blah, blah, no State, political subdivision shall enact any provision having the force and effect of law related to a price, route, or service of any motor carrier.

And then there's a lot of other language.

And then at the very end, with respect to the transportation of property.

Does that phrase at the end go all the way back to related to a price, route, or service with respect to the transportation of property?

Mr. Cordray: I believe it does, Your Honor, and it's just... it's just--

Justice Scalia: Well, that would make it a very narrow provision then, wouldn't it, that... that we're excluding the... the municipalities from?

Mr. Cordray: --I believe it is.

Justice Scalia: They just couldn't say you're not allowed to use this street to carry... to carry moving goods or--

Mr. Cordray: This is a key point.

Justice Kennedy: --But you're... you're asking... you're asking us to... to have a very careful grammatically correct reading of the act, and in your answer that... that you've just given to Justice Scalia, transportation of property is preceded by an or.

It seems to me the first clause is quite independent, related to a price, route, or service of any motor carrier.

That's it.

Mr. Cordray: With--

Justice Kennedy: So, I'm not sure the qualification you urge on us, in order to mitigate the effects of this holding works.

Justice Scalia: Well, I don't know what it would go to if it didn't go to that.

It can't go to the stuff after the or.

Or any motor... motor private carrier, broker or freight forwarder with respect to the transportation of... what is a... what is a motor private carrier with respect to the transportation of... of property?

It has no meaning unless you read it all the way back up to price, route, or service with respect to the transportation--

Mr. Cordray: --And the title of the provision is motor carriers of property.

That's specifically what they're dealing with, as distinguished from motor carriers of passengers, which are addressed earlier in the same section of the statute, 14501(a).

Justice Scalia: --It's not the best statute, is it?

Mr. Cordray: I beg your pardon?

Justice Scalia: It's not the best statute.

[Laughter]

Mr. Cordray: It's... it's clear enough with respect to the things we care about here, which is that--

Justice Stevens: Well, but I don't think it is.

Mr. Cordray: --Congress very carefully attempted to distinguish between a State and a political subdivision of a State.

And it did so repeatedly in the statute for the specific purpose of drawing a distinction between them.

And the only way--

Justice Breyer: There's not a word of legislative history I take it--

Justice Stevens: --If you read (c)(1) as narrowly as you're suggesting, you don't even need the exemption because it only relates to law, regulation, or other provision related to price, route, or service.

So... and it doesn't even reach safety.

Mr. Cordray: --No, that's not true, Your Honor.

And this case is a good example of it.

They are attempting to impose a licensing scheme with respect to tow trucks and could do it with respect to any motor carrier of property, parcel delivery service, or the like.

And their... their rationale for doing so apparently is safety.

But in fact, that is exactly what is preempted by this statute and by this clause.

Justice Ginsburg: But, Mr. Cordray, that's open.

Mr. Sutton said that that question whether these regulations are genuine safety regulations or, on the other hand, economic is not determined by this case.

Here the question is whatever is safety, may the State delegate that authority to the municipalities.

I did want to get your response to a question Justice Kennedy asked Mr.... and it was answered for you by Mr. Sutton.

Suppose the State says, okay, we do business by dealing with municipalities.

So, we will simply take the municipal regulation of Toledo and the municipal regulation of Columbus, and we'll put it all together in one package.

It will say, State regulation of safety, and... and we'll preserve everything.

Would that be permissible under your reading of this Federal statute?

Mr. Cordray: Yes, it would, Your Honor.

It would.

If the State is doing the regulating or enacting the law, under this statute, the way it reads and the... the way it was designed, that would be permissible, even if it's nonuniform.

If we wanted to make it uniform, we'd have to go to the legislature and try to get that package amended or go perhaps to the State department of transportation which also could do this through an administrative scheme.

Justice Ginsburg: So, it's strictly a question of form that we're dealing with, that States, you can delegate to your cities, as you always have, just say, cities, what do you want and we'll give it to you by enacting a State law.

Mr. Cordray: No.

It's not simply a matter of form because Congress made a judgment that if there were 50 different States imposing their own schemes, that would be less impediments and... and tangle of restrictions impeding a free market than if 39,000 municipalities and local governments around the country were free on their own to do what they wished, and that that... that was in fact very much undercutting the desire to get to a free market in transportation services.

But I also want to go back to your comment and your question earlier.

This statute does not itself distinguish between economic regulation that's preempted on the one hand and safety regulation that's not on the other.

The phrasing of the statute is much broader.

It is related to price, route, and services of a motor carrier of property.

That may not only be economic regulation.

And so the notion that that's the divide and we can simply remand, the lower court can sort it out, I believe is not correct.

Now, as we've seen here, the fact that the... the statute is broad does not mean it's all encompassing.

I mean, I could see an argument that truck... trucking companies no longer now have to pay corporate tax because that affects their price.

But that's a general provision.

As this Court has said in construing ERISA and needs to be imported here in the Dillingham case and the like, there has to be a connection with or reference to the specific item at issue.

Here motor carriers of property.

And that's what we have with this licensing scheme here which is directed specifically at tow trucks and will have a very direct relation and... and effect on their prices and services.

I also want to mention the problem of surplusage because it's not been mentioned on the other side, and it's very important here.

What possible reason would Congress have had for including in the statute what obviously is a key phrase?

It shows up seven times in the course of the single statute.

Political subdivision of a State.

Why would that be included at all if the authority of a State is to be read, as petitioners would have it, to always include within it the authority of a political subdivision.

Justice Scalia: Their... their answer is that... that when you speak of the regulatory authority of a State, that naturally connotes the authority to... to delegate that to... to municipalities.

But when you speak of the authority of a State to enact or enforce a law, that... that much less naturally includes the authority of a municipality to enact or enforce a law so that... and all of those other references are in connection with that phrase, to enact or enforce a law.

Are they not?

Mr. Cordray: Two reasons why that does not work, Your Honor.

They agreed that the subsections of (c)(2)(A) have to be read in parallel and the second one with respect to size and weight and the like.

It doesn't say anything about regulatory authority.

It just says authority of a State.

Second, in the preemption clause itself--

Justice Scalia: Wait, wait.

I... I missed that.

Mr. Cordray: --Well, regulatory authority is the phrase used in the first subclause--

Justice Scalia: Right.

Mr. Cordray: --of (c)(2)(A) related to safety.

Justice Scalia: Yes.

Mr. Cordray: But they're not talking about authority to regulate.

They're just talking about authority of a State with respect to the size and weight, hazardous cargo, and then with respect to insurance.

And insurance is an excellent example I'll get to in a moment.

But also in the preemption clause itself, (c)(1), it refers to the authority of a State to enact or enforce a law or regulation.

That is regulatory authority, and it distinguishes it full stop from the authority of a political subdivision of a State to do the same thing.

What?

Enact or enforce a regulation.

So, the regulatory authority is being discussed specifically in the preemption clause itself.

That's the fallacy of starting the analysis here by jumping all the way to (c)(2)(A) and wrenching that text out of context and divorcing it from the preemption clause that it's meant to be a savings subordinate to.

But the preemption clause itself--

Justice Stevens: No, but (c)(1) uses may enact or enforce just as... as (c)(2)(C) does, whereas (c)(2)(A) does not.

The to enact or enforce language applies in every subsection except the one that we're arguing about.

Mr. Cordray: --That's correct, which is a telling point.

In every subsection, Congress went out of its way to add political subdivision of a State.

I've still not heard a single sensible explanation for why they would bother to do that.

Justice Stevens: Well, if... but if you didn't add the political subdivision in those States and if you had a home rule State, then a local government could... would not be affected by it.

Mr. Cordray: No, not correct because their notion is that State includes delegating to its local government as a delegated power from the State.

They want to read the two as being encompassed within one another.

Justice Stevens: When you described the regulatory... regulatory authority in gross as you do in (2)(A), then it would apply to the authority to delegate.

But when you're talking about authority to enact or enforce, then you have to identify the entities that do the enacting and the enforcing.

It seems to me that's a perfectly logical distinction.

Mr. Cordray: Well, I don't believe it is, Your Honor.

And again, there's nothing about regulatory authority that is unique in this statute because (c)(2)(A) does refer to regulatory authority with respect to safety, but it doesn't refer to regulatory authority with respect--

Justice Stevens: Well, don't you agree that if you didn't have all the other subdivisions in here, that would be the normal reading of regulatory authority, which would include the authority to delegate?

Mr. Cordray: --I would agree that if (c)(2)(A) alone were the statute--

Justice Stevens: Correct.

Mr. Cordray: --that would be a sensible reading.

But if you... that... that's taking it out of a context where Congress specifically is dealing with a State and a political subdivision regularly in the statute and then in one instance a special kind--

Justice Stevens: Yes, but in one... but in one provision, they say regulatory authority, which has a plain meaning that you'd be... brings a result you disagree with.

In the other they consistently use authority of a State or a political subdivision to enact or enforce.

Mr. Cordray: --But it doesn't--

Justice Stevens: If you don't refer to political subdivision, it just wouldn't include it.

Mr. Cordray: --It doesn't have a plain meaning.

It doesn't really have any meaning because in the preemption clause itself, they're referring to the authority of a State to regulate, and they're separately referring to the authority of--

Justice Stevens: No.

It says a State or a political subdivision may not enact or enforce.

That's the language of the preemption clause.

Mr. Cordray: --Correct.

That's right.

Enact or enforce what?

A regulation, which is the same thing as to regulate.

Chief Justice Rehnquist: (c)(2)(A) at the bottom of page A-2 in the same sentence uses this shall not restrict the safety regulatory a State... authority of a State with respect... or the authority of a State.

They don't use the adjective regulatory even in the second clause.

Mr. Cordray: That was my point.

I was trying to make it earlier.

I... I didn't make it as clearly as you just did.

But that's exactly--

Chief Justice Rehnquist: Well, obviously, I... I missed it, so say it again.

[Laughter]

Mr. Cordray: --Well, that's exactly right.

Trying to give some special meaning--

Justice Scalia: Where?

What... what section are you talking about?

Mr. Cordray: --We're talking about (c)(2)(A).

Chief Justice Rehnquist: At the bottom of page A-2.

Mr. Cordray: This is a point I tried to make earlier and I did not make it as clearly as the Chief Justice just did.

Justice Scalia: I didn't get it.

Mr. Cordray: But they're attempting to give some special meaning to the phrase safety regulatory authority, but by their own argument, that can't follow because they want to... they have to read all these provisions the same way.

And the second subclause there refers--

Justice Scalia: The authority of a State.

Mr. Cordray: --to the authority of a State, nothing about safety, nothing about regulatory, and has to be read in the same fashion.

I would also point out that the third subclause there, which relates to insurance requirements, they would be saying that municipalities are free to impose their own insurance requirements upon motor carriers of property.

So, FedEx, UPS in different municipalities would have to meet different insurance requirements.

They'd have to do different kinds of filings and have very different kinds of--

Justice Stevens: You're too fast for me.

Where is the insurance requirement?

Justice Scalia: At the very end of that provision.

Mr. Cordray: --It's the third subclause in (2)(A).

Justice Scalia: (2)(A).

Justice Stevens: Oh, in... in (2)(A), okay.

Mr. Cordray: And that is completely at odds with the statute because in 14504, which this Court is going to take up in a case called Yellow Freight next term, it says specifically there... Congress said even 50 registrations by motor carriers of property in different States for insurance purposes is too many for our taste.

We think there should only be one, and they said the single State--

Justice Breyer: Well, what about the middle one?

What about the middle one?

It says, the authority of a State to impose highway limitations.

Mr. Cordray: --Yes.

Justice Breyer: Now, I can't figure out, for the life of me, how... why Congress would have wanted to say the State can impose limitations on the use of highways, but the city cannot impose limitations on the use of streets.

But your reading would lead to that.

Mr. Cordray: That would be one respect, Your Honor, in which either... if it was a general traffic regulation, then it would not be preempted at all.

Or if it were preempted, it would have to be done at the State level and it could be done by the--

Justice Scalia: I thought part of your argument was also that streets are not highways, and I'm surprised you didn't make that point when we were talking about the... you know, no trucks on a school street or something like that.

Isn't the term highways arguably different from... from local residential neighborhood streets?

Mr. Cordray: --Arguably it could be, but I believe for purposes of title 49, it's a defined term to include streets.

But our point there was that it's perfectly sensible for Congress to say that the States shall deal with these issues, but not the municipality.

Justice Souter: And you found not a word... am I right?

There is not a word in the history of this... although there was some human being who wrote these words, there is not a word in any document, hearing, report, debate that casts any light on this one way or the other.

Mr. Cordray: One way or the other.

But again, traffic regulations--

Justice Souter: Is that right?

Mr. Cordray: --generally are not within the preemption clause.

Justice Souter: No, no.

I'm just trying to... it's mysterious to me.

Mr. Cordray: Yes.

The legislative history here--

Justice Souter: And I'm having trouble, and therefore I... I just sometimes look at the legislative history--

Mr. Cordray: --Yes, I understand.

Justice Souter: --to try to figure it out.

And you haven't found anything, nor does the other--

Mr. Cordray: The legislative history here is confused and somewhat unilluminating.

Justice Scalia: --I guess we'll have to use the statute.

[Laughter]

Justice Ginsburg: Mr. Cordray, is there... is there an example... any other example of a Federal statute... I mean, it is unusual to say, States, you can no longer decide how your authority is going to be exercised.

An ordinary mode of a State exercising its authority is to delegate it to localities.

Apart from this statute, is there any other Federal statute that says, State, you may do it but you may not delegate it to a regional or local or municipal unit?

Mr. Cordray: There are two responses to that question.

The first is the example that was already given which is when the Federal Government puts a grant to a municipality full stop and doesn't allow the State to control the use of that grant, that's an example like this.

But the other point I would make is throughout its history, Congress has--

Justice Ginsburg: Well, that's a State... that's... that's--

Mr. Cordray: --May I--

Justice Ginsburg: --Congress giving money to a municipality.

I asked an instance in which Congress says, State, you may do it but you, State, may not delegate.

Mr. Cordray: --I know of none, but this is a new departure for Congress.

They have always taken free markets and sought to regulate them.

Here they're taking a market they had regulated and the States and localities had regulated and they're now trying to deregulate it.

That's a new development and it calls for new measures.

And the measure here was to try to clear away all this underbrush of... of State and local restriction--

Justice Ginsburg: Since it was... since you say it's singular and this is new, wouldn't you expect Congress to make a clear statement that the State may not delegate this authority because--

Mr. Cordray: --Congress did make a clear statement by including the term, political subdivision, whenever it wanted political subdivisions to either have authority or be restricted in that authority, and then specifically speaking only to States here.

There could not be a clearer statement of that.

Why else ever use the term, political subdivision?

That is unexplained.

Justice Ginsburg: --And the State may not delegate this authority to a political subdivision.

Just as simple as that, to negate what has been the assumption all along.

Mr. Cordray: They could have used the term State everywhere alone and then said, State but not political subdivision, here.

Or they could this term, State and political subdivision, everywhere and omit the term, political subdivision, here.

Those are the same meaning and they're the same purpose.

And again, canons of construction have been denigrated in this case, but they have to do with the natural and ordinary reading of statutes.

The baseline that Congress uses to draft laws in some confidence that the executive branch and the courts will interpret them as Congress meant them, and that's exactly what's--

Justice Ginsburg: The executive branch.

Now, you... I know you have said, and I quite agree, that the Department of Transportation has no supervisory authority, it has no Chevron deference.

But doesn't it deserve some respect from the courts simply because it has familiarity with the area of motor carrier regulation that the courts don't?

Mr. Cordray: --That's a... that's a statement I couldn't disagree with more strongly.

The Solicitor General here has conceded they have no authority to administer this statute.

The notion that you have a--

Justice Ginsburg: They've not conceded the Department of Transportation... you... deserves no respect.

Mr. Cordray: --The... the notion that a deregulatory statute that took governmental entities out of an area to create a free market would now be subject to umpiring by the Federal agency, in terms of the scope of preemption, which is an issue this Court has always said is for the courts to determine--

Justice Ginsburg: I didn't say umpiring.

I said its views on the proper construction of this statute.

What weight, if any, should this Court give to the Department of Transportation's view, this is what the statute means?

Not as an umpire, not as a referee.

Mr. Cordray: --Their construction is to leave them as an umpire.

But I would say certainly not Chevron deference.

At most some sort of Skidmore respect, but that's only entitled where there's some sort of reason to think that before they got to their litigation position here, which has migrated in the course of this case... it started off as an argument about repeal by implication.

It's now turned into argument about sort of reading statutes together to import them into this statute... is entitled to really, I think, no respect here because it is not persuasive.

They have not analyzed the statute in detail--

Chief Justice Rehnquist: Well, if... if you lose, you know--

Mr. Cordray: --in any of their prior--

Chief Justice Rehnquist: --If you're changing your argument... you know, if you lost in the lower court, you'd probably be well advised to change your argument.

[Laughter]

Mr. Cordray: --I wouldn't disagree with that, Your Honor.

But again--

Justice Scalia: Mr. Cordray, what... what about the point made that if... if you accept your interpretation, municipalities not only would not be able to enact regulations themselves, they would not be able to enforce regulations adopted by the... by the State, which would be a great inconvenience, that the only enforcement can be by the State police and not by local... local police.

Mr. Cordray: --We agree, but that's not what this preemption clause is about or any preemption clause is ever about.

When they say enact or enforce here, they don't use it in the terms of making law and executing the law.

They use it in the... in the sense of enacting new law or applying... or enforcing and applying preexisting law.

And the point of this preemption clause is to say that municipalities do not have the authority to act in this realm by imposing their own public policies.

It's a matter of either new law or preexisting law.

That's the structure of many of these preemption statutes the Court has dealt with.

Justice Kennedy: If we think this statute is... that there are arguments either way for interpreting it, shouldn't we pay heed to the petitioners' point that it's a very serious matter for the Congress of the United States to tell States how they should govern themselves?

Mr. Cordray: We think the language of the statute is clear here, Your Honor.

They explicitly extinguished the power of the municipality--

Justice Kennedy: Let's... let's say we... we disagree with that.

Is... is that not... let's say we find the statute in... in equipoise, or the arguments.

Should we not give force to the argument petitioner makes that the States should be presumed to have the authority to determine how best to govern themselves?

Mr. Cordray: --No.

There's no substantive Tenth Amendment issue here.

There's no commandeering of States or local governments to enact some sort of program.

This is the same as the Court in Wolens where they said this statute must be read to say the State cannot legislate in this area, but they can enforce contracts through their courts.

There's no Tenth Amendment problem with that.

That's Congress exercising its power under the Supremacy Clause, anything in the laws or constitution of the States notwithstanding.

And as the Solicitor General said in the brief in the Mortier case, the notion that when Congress decided that there could be State regulation but they had to preempt local regulation, that they would somehow have to be forced to preempt State regulation as well, simply turns the Tenth Amendment on its head.

So, we don't think that there's any... any serious constitutional issue here.

Justice Stevens: It seems to me your argument boils down to the point that there are 10 provisions in the statute.

Nine of them are perfectly clear.

The tenth says the same thing, but we're not going to read it the way it seems to read because it's not as clear as the other nine.

Mr. Cordray: No, that's not what it boils down.

Justice Stevens: That's about all it amounts to.

Mr. Cordray: It boils down to the fact that Congress deliberately inserted a phrase here, political subdivision of a State, so that it can preempt--

Justice Stevens: In the... in the nine, right.

Mr. Cordray: --And... and it--

Justice Stevens: If you just read the one all by itself, it's perfectly clear too.

Mr. Cordray: --Well, it's... it is clear, I believe, because it's clear because they said a State cannot... a political subdivision cannot--

Justice Stevens: But the only reason--

Mr. Cordray: --and they state the authority of a State to do certain things.

Justice Stevens: --The only support you have is they're not as detailed and specific in the one in question as they are in the other nine.

Mr. Cordray: No.

I think it is equally detailed and specific.

And... and there's no rationale for Congress legislating in this way or drafting this language or enacting it unless they intended to make a difference.

That's... that's the whole purpose of including that language.

Justice Scalia: Your support is the context of the statute, which--

Mr. Cordray: No.

Text and context.

Text and context.

That's correct.

Rebuttal of Jeffrey S. Sutton

Chief Justice Rehnquist: --Thank you, Mr. Cordray.

Mr. Sutton, you have 4 minutes remaining.

Mr. Sutton: I'd like to respond to a few of the points--

Justice Souter: Mr. Sutton, could you ask one... answer one factual question for me?

Your... your brother made the argument that in... in reading (c)(2)(A), he went to the last clause and said on your theory every political subdivision could enact its own financial responsibility and insurance laws and so on.

Mr. Sutton: --Yes.

Justice Souter: And that would be a crazy scheme.

My... my question is, is there in fact any history of municipalities enacting these kinds of statutes so that it's something that might have been in Congress's mind?

Mr. Sutton: No, Your Honor, not in... in the insurance area.

But there's a... I think a better answer to that concern, and the better answer is, our point is that (c)(2)(A) incorporates all of these preexisting preemption provisions.

They are preemption provisions in other parts of title 49, whether it's insurance, safety, size and weight routing, or hazardous material routing.

So, the problem with Justice O'Connor's point of practical consequences... in reversing the Sixth Circuit, there is no gap here.

Why?

Because for 60 years, Congress and the Department of Transportation have been regulating these very areas, both with respect to State laws and city laws, to the extent they've been enacted.

So, the multiplicity of insurance regulations is a false concern.

I mean, the... Congress has already indicated in 31138 and 39 what the rules are there.

The Department of Transportation has implemented regulations that do get Chevron deference, and they lay out what the rules are.

Justice Breyer: The same problem, you didn't, is... to me anyway, is... is (3)(A).

Do you see what I'm thinking?

I mean, the same human being at the same time wrote the words in... in (c)(2)(A) and he used the word State, and at precisely the same time, he wrote the second exception, which is (3)(A)--

Mr. Sutton: Right.

Justice Breyer: --and he put in political subdivision.

And what I cannot get over is I don't see how a single human being on the same day at the same time could write two exceptions, use the word "State" in one and use the word "political subdivision" in the other, without meaning a difference.

Mr. Sutton: Right.

Your Honor, look... compare (3)(A) to (c)(1).

They follow the exact same enact or enforce language.

(c)(2)(A) does not use the enact or enforce language.

Justice Breyer: That's the answer.

Mr. Sutton: That's the answer, number one.

Number two, remember, (c)(3) is for the benefit of motor carriers.

They want to make sure they could have these rules, whether city or State, apply to them on a city-by-city not State-by-State basis.

Now, the... the regulatory purpose, Your Honor... the landmark legislation in this area was the 1980 law that deregulated interstate commerce.

Everyone agrees that did not divest cities of authority.

The 1994 law at issue here was about intrastate commerce, primarily to put FedEx and UPS on a level playing field, and suddenly respondents are saying that deregulated... regulatory purpose required the divestment of local authority?

Chief Justice Rehnquist: Well, what's... what's Congress's authority to regulate intrastate commerce?

Mr. Sutton: It's at its outer edges, and that to me is what is so odd about this particular interpretation.

They're saying in the intrastate area, you could divest States of their authority to delegate, but they've not done it in the interstate area?

I mean, how absurd is that?

It's... it's got it exactly backwards.

Now, the practical consequences... I want to go back to again... of their interpretation.

(c)(2)(A), they've agreed, has to be construed the same way throughout, and there are countless... as we indicated in our opening brief, every State in the country has delegations to cities that have size and weight controls, size and weight rules that would be eliminated by this particular construction.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Sutton.

The case is submitted.