The Commerce Clause and trucking companies

June 13, 2013 | By DAMIEN SCHIFF

Today, the Supreme Court ruled unanimously in American Trucking Association v. City of Los Angeles that the Federal Aviation Administration Authorization Act of 1994 preempts a provision of a Port of Los Angeles concession agreement with federally regulated trucking companies that requires cargo trucks to place a “placard on each truck with a phone number for reporting concerns, and to submit a plan listing off-street parking locations for each truck.”  The case would be rather ho-hum were it not for the interesting concurrence of Justice Thomas.  In that short opinion, Justice Thomas explains his concerns over the Act’s regulation of activities that occur outside the LA port but nevertheless occur wholly within a state.  He believes that the Act cannot constitutionally regulate activities like placard display and parking location outside the channels of commerce, i.e., away from the port’s property.  He also suspects that such activities, even when aggregated, probably do not substantially affect interstate commerce.

Justice Thomas has long been known to advocate an originalist, and therefore rather narrow, understanding of federal power under the Commerce Clause.  Hence, his opinion today is not too surprising.  Yet it is interesting that none of his colleagues joined in the opinion, notwithstanding that four of them last term held that the Affordable Care Act’s individual mandate exceeded Congress’s power to regulate interstate commerce.  I would not conclude, however, that these other justices have retreated from their earlier position.  A much more likely explanation is that, because the respondents in American Trucking Association had waived any constitutional argument against preemption, it was unnecessary to address the issue.