Argument Review: Does a Port's Enforcement Have the Force and Effect of Law?

The Supreme Court heard oral arguments yesterday in American Trucking Association v. City of Los Angeles, the case asking whether federal law preempts the Port of Los Angeles's "concession agreement" that it requires of all drayage truck operators.  Our argument preview is here.

Two points got the Court's attention.  First, the justices tested whether the Port was acting in a proprietary way in enforcing the concession agreement, thus triggering the market participant exception.  This question turns on whether the Port's enforcement of the agreement had "the force and effect of law"--language from the preemption clauses in the Federal Aviation Administration Authorization Act that means that enforcement by a state as state is preempted, but enforcement by a state as market actor is not.  Here, the Port's concession agreements are contracts with drayage truck operators (making the Port look like a market actors), but they are ultimately backed by criminal penalties, even if not for breach of the contract, and the whole operation relates to regulation of public land (making the Port look like the state).  Take a look at this exchange with the attorney for the Port:

JUSTICE KENNEDY: You are saying that you can do by contract what you cannot do by regulation.  And I don't understand that argument when there are criminal penalties that attach to the breach of the contract.

MR. ROSENTHAL: But, Justice Kennedy, let me say again, there are no criminal penalties that attach to the breach of the contract.  It is purely a contract.  The remedies are purely civil.  Even our other side in their argument has conceded there are no criminal penalties to the breach of the concession agreement.

JUSTICE SCALIA: I'm not sure that's crucial.  You think a state can say nobody's going to come on our highways until it signs a contract?  Okay?  These highways belong to us, they are State land, and anybody who wants to ride on the highways, you have to enter a contract with the State.  And that's going to get around this Federal statute?

Others, too, asked about the criminal penalties and the scope of the Port's regulatory authority--all to the end of determining whether the Port looks more like the state, or more like a market actor, when it enforces its concession agreement.

Next, the Court pressed on the scope of Castle, the case overturning Illinois's punishment of a carrier's repeated violations of the state's freight-weight restriction by completely suspending the carrier's right to use Illinois state highways for certain periods.  Here, the arguments turned on whether the Port's enforcement mechanism was a punishment for prior violations (as in Castle), or whether it simply operated to ensure that only currently compliant trucks had access to the Port.  There's also an issue about the continued vitality of Castle, given that the federal regulatory scheme that governed at the time has since been superceded.

The Port seemed to have the tougher time at arguments, but that's no (necessary) bellweather.  There were plenty of open questions to suggest that there are no easy answers here.  As a practical matter, if the Court rules against the Port, it would undo years of litigation and negotiation between the Port and the surrounding community related to environmental and health concerns and send those paties back to the drawing table.  That, in turn, could impact both community health and the environment, and the Port's plans for even more expansion.

SDS