Forum Post: Argument preview: The elusive limits of Congress’s broad preemption regime for transportation deregulation

When Congress deregulated the airlines in the late 1970s and again when it deregulated trucking in 1990s, it wanted to make sure that the states couldn’t thwart those federal efforts through re-regulation. So it enacted broad preemption provisions that trump state laws “relating to” the “price[s], route[s], or service[s]” of motor carriers and airlines. Because Congress did little to spell out the scope of its intended preemption, figuring out the meaning of those words turns to some degree on figuring out what Congress had in mind when it deregulated the transportation industries.

(An aside: Although you may find the history of transportation deregulation unimaginably dry, Justice Breyer doesn’t. As a Senate lawyer in the 1970s, he worked closely with the late Senator Ted Kennedy to pass the Airline Deregulation Act, whose preemption provision is nearly identical to the FAAAA’s. As a law professor, he wrote a book that delved into great detail about regulating competition in the airline and trucking industries. And he’s the author of the Court’s only previous opinion explicating the scope of FAAAA preemption. It’s a pretty good bet that Justice Breyer will be an active questioner on Wednesday.)

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