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STEVENS, J., dissenting

prohibition of state regulation should be measured by the scope of the federal regulation that was being withdrawn.

This is essentially the position adopted by the Civil Aeronautics Board, which interpreted the scope of $ 105 in light of its two underlying policies—to prevent state economic regulation from frustrating the benefits of federal deregulation, and to clarify the confusion under the prior law which permitted some dual state and federal regulation of the rates and routes of the same carrier. 44 Fed. Reg. 9948, 9949 (1979). The Board thus explained:

“Section 105 forbids state regulation of a federally authorized carrier's routes, rates, or services. Clearly, states may not interfere with a federal carrier's decision on how much to charge or which markets to serve. . . Similarly, a state may not interfere with the services that carriers offer in exchange for their rates. .

“Accordingly, we conclude that preemption extends to all of the economic factors that go into the provision of the quid pro quo for passenger's fare, including flight frequency and timing, liability limits, reservation and boarding practices, insurance, smoking rules, meal service, entertainment, bonding and corporate financ

ing ....Id., at 9950–9951. See also Freeman, State Regulation of Airlines and the Airline Deregulation Act of 1978, 44 J. Air L. & Com. 747, 766– 767 (1979)

Because Congress did not eliminate federal regulation of unfair or deceptive practices, and because state and federal prohibitions of unfair or deceptive practices had coexisted during the period of federal regulation, there is no reason to believe that Congress intended $ 105(a) to immunize the airlines from state liability for engaging in deceptive or misleading advertising.

STEVENS, J., dissenting

III

The Court finds in Congress' choice of the words “relating to” an intent to adopt a broad pre-emption provision, analogous to the broad ERISA pre-emption provision. See ante, at 383–384. The legislative history does not support that assumption, however. The bill proposed by the Civil Aeronautics Board provided that “[n]o State ... shall enact any law ... relating to rates, routes, or services in air transportation.” Hearings on H. R. 8813 before the Subcommittee on Aviation of the House Committee on Public Works and Transportation, 95th Cong., 1st Sess., pt. 1, p. 200 (1977). Yet the Board's accompanying prepared testimony neither focused on the “relating to” language nor suggested that those words were intended to effect a broad scope of preemption; instead, the testimony explained that the preemption section was “added to make clear that no state or political subdivision may defeat the purposes of the bill by regulating interstate air transportation. This provision represents simply a codification of existing law and leaves unimpaired the states' authority over intrastate matters.” Id., at 243.

The “relating to” language in the bill that was finally enacted by Congress came from the House bill. But the House Committee Report-like the Civil Aeronautics Board—did not describe the pre-emption provision in the broad terms adopted by the Court today; instead, the Report described the scope of the pre-emption provision more narrowly, saying that it “provid[ed] that when a carrier operates under authority granted pursuant to title IV of the Federal Aviation Act, no State may regulate that carrier's routes, rates or services.” H. R. Rep. No. 95-1211, p. 16 (1978).

The pre-emption section in the Senate bill, on the other hand, did not contain the “relating to” language. That bill provided, “[n]o State shall enact any law, establish any standard determining routes, schedules, or rates, fares, or charges in tariffs of, or otherwise promulgate economic regulations

STEVENS, J., dissenting

for, any air carrier ...." S. 2493, $ 423(a)(1), reprinted in S. Rep. No. 95-631, p. 39 (1978). The Senate Report explained that this section “prohibits States from exercising economic regulatory control over interstate airlines.” Id., at 98.

The Conference Report explained that the Conference adopted the House bill (with an exception not relevant here), which it described in the more narrow terms used in the House Report. H. R. Conf. Rep. No. 95–1779, pp. 94-95 (1978). There is, therefore, no indication that the conferees thought the House's “relating to” language would have a broader pre-emptive scope than the Senate's “determining ... or otherwise promulgate economic regulation” language. Nor is there any indication that the House and conferees thought that the pre-emption of state laws “relating to rates, routes, or services” pre-empted substantially more than state laws “regulating rates, routes, or services.”

6

IV

Even if I were to agree with the Court that state regulation of deceptive advertising could "relat[e] to rates” within the meaning of $ 105(a) if it had a “significant impact” upon rates, ante, at 390, I would still dissent. The airlines' theoretical arguments have not persuaded me that the NAAG guidelines will have a significant impact upon the price of airline tickets. The airlines' argument (which the Court adopts, ante, at 388–390) is essentially that (1) airlines must engage in price discrimination in order to compete and operate efficiently; (2) a modest amount of misleading price advertising may facilitate that practice; (3) thus compliance with the NAAG guidelines might increase the cost of price advertising or reduce the sales generated by the advertise

6 Because the Court overlooks the phrase "or otherwise promulgate economic regulations” in the Senate bill, see ante, at 385–386, n. 2, it incorrectly assumes that the Senate bill had a narrower pre-emptive scope than the House bill.

STEVENS, J., dissenting

ments; (4) as the costs increase and revenues decrease, the airlines might purchase less price advertising; and (5) a reduction in price advertising might cause a reduction in price competition, which, in turn, might result in higher airline rates. This argument is not supported by any legislative or judicial findings.

Even on the assumption that the Court's economic reasoning is sound and restrictions on price advertising could affect rates in this manner, the airlines have not sustained their burden of proving that compliance with the NAAG guidelines would have a “significant” effect on their ability to market their product and, therefore, on their rates.? Surely Congress could not have intended to pre-empt every state and local law and regulation that similarly increases the airlines' costs of doing business and, consequently, has a similar “significant impact” upon their rates.

For these reasons, I respectfully dissent.

? They have not demonstrated, for example, that the costs of purchasing the space for the "Restrictions box” required by $2.1, or the broadcast time to state the two-sentence disclosure required by $2.2, will have a significant effect on rates. Nor can it realistically be maintained that $2.7's requirement that words such as “sale," "discount,” or “reduced” may only be used if the fare is, in fact, on sale (i. e., is available for a limited time and is substantially below the usual price) will hinder the airlines' ability to market and sell their low-priced fares. Finally, they surely have not proved that $2.4's requirement that fares be advertised only if sufficient seats are available to meet demand or the extent of unavailability disclosed will make it impossible for the airlines to market and sell different seats at different prices. That section expressly permits the airlines to advertise low-priced fares that are available in limited quantities; it simply requires that they include a disclaimer, such as “This fare may not be available when you call.” See National Association of Attorneys General, Task Force on Air Travel Industry, Guidelines $2.4 (1988), reprinted in App. to Brief for United States as Amicus Curiae 24a-25a.

Syllabus

BURDICK v. TAKUSHI, DIRECTOR OF ELECTIONS

OF HAWAII, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 91–535. Argued March 24, 1992—Decided June 8, 1992 Petitioner, a registered Honolulu voter, filed suit against respondent state

officials, claiming that Hawaii's prohibition on write-in voting violated his rights of expression and association under the First and Fourteenth Amendments. The District Court ultimately granted his motion for summary judgment and injunctive relief, but the Court of Appeals reversed, holding that the prohibition, taken as part of the State's comprehensive election scheme, does not impermissibly burden the right

to vote. Held: Hawaii's prohibition on write-in voting does not unreasonably in

fringe upon its citizens' rights under the First and Fourteenth Amendments. Pp. 432–442.

(a) Petitioner assumes erroneously that a law that imposes any burden on the right to vote must be subject to strict scrutiny. This Court's cases have applied a more flexible standard: A court considering a state election law challenge must weigh the character and magnitude of the asserted injury to the First and Fourteenth Amendment rights that the plaintiff seeks to vindicate against the precise interests put forward by the State as justification for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights. Anderson v. Celebrezze, 460 U. S. 780, 788–789. Under this standard, a regulation must be narrowly drawn to advance a state interest of compelling importance only when it subjects the voters' rights to “severe” restrictions. Norman v. Reed, 502 U. S. 279, 289. If it imposes only “reasonable, nondiscriminatory restrictions” upon those rights, the State's important regulatory interests are generally sufficient to justify the restrictions. Anderson, supra, at 788. Pp. 432–434.

(b) Hawaii's write-in vote prohibition imposes a very limited burden upon voters' rights to associate politically through the vote and to have candidates of their choice placed on the ballot. Because the State's election laws provide easy access to the primary ballot until the cutoff date for the filing of nominating petitions, two months before the primary, any burden on the voters' rights is borne only by those who fail to identify their candidate of choice until shortly before the primary. An

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