Invitation Brief in No. 06-457, Rowe v. New Hampshire Motor Transport Association & Final (?) CVSG Tally

By Amy Howe
on May 30, 2007 at 3:58 pm

On Friday the SG’s office filed this brief recommending that the Court deny cert. in No. 06-457, Rowe v. New Hampshire Motor Transport Association. The SG’s brief in Rowe is also, in all likelihood, the last invitation brief that will be filed this Term; although we had previously indicated (in this post) that we expected a brief in No. 06-415, Selig v. Pediatric Specialty Care, last Friday was — as we understand it — the last day for the SG to file a brief and (if the normal timelines are followed) still have the case considered before the Court’s summer recess, and the Court’s electronic docket does not indicate that any such brief was filed. (Thanks to J.C. Andre for pointing this out.)

If (as we now expect) the brief in Rowe is indeed the last SG brief for the Term, the final score is six recommended denials and just one recommended grant (in No. 06-856, LaRue v. DeWolff, Boberg & Associates, which we discussed here). Although the Court normally accords substantial weight to the SG’s recommendations — and it would thus seem likely that this group of CVSG cases would not be a significant source of new cases for the Court’s OT2007 docket — the Court’s need for cases could change the calculus considerably.

At issue in Rowe is whether the Federal Aviation Administration Authorization Act (FAAAA, not to be confused with the FAA (Federal Arbitration Act), which features prominently in Hall Street Associates v. Mattel, Inc., in which cert. was granted yesterday) preempts provisions of a Maine law that would require shippers which deliver tobacco products to, among other things, obtain the signature of the purchaser and, if he or she is under the age of twenty-seven, verify the purchaser’s age. The SG’s recommendation that cert. be denied rests primarily on its belief that the decision below was correctly decided; the provisions at issue impose precisely the kind of “burdens . . . on interstate commerce and the free flow of traffic” that Congress intended to eliminate with the FAAA’s preemption provisions. And although the government hastens to emphasize that it “shares the State’s interest in combating youth tobacco use,” it explains that other means are available – including under the current Maine law – to do so. Finally, it disputes petitioner’s suggestion that the First Circuit’s decision conflicts with the holdings of other courts.