Whose rules rule road for truckers?

In high court, a city argues to control trucks on its streets.

To a motorist stranded in a broken-down car, nothing is more beautiful than the sight of an approaching tow truck.

But what if the tow-truck driver is an asphalt-plying pirate, refusing to accept credit cards or personal checks, and declining to carry insurance to cover damage he causes?

In the US, such issues are traditionally covered in local licensing processes: Cities require tow-truck operators to accept credit cards, carry insurance, and stay open late. But a case before the US Supreme Court is raising questions about whether local governments have the authority to regulate towing operations in the wake of congressional deregulation of the trucking industry.

That's the issue justices are considering this morning, in a case that pits the city of Columbus, Ohio, against Ours Garage & Wrecking Service Inc.

The case is about much more than tow-truck regulations: It also implicates one of the most fundamental issues of American constitutional government – Congress's power to regulate interstate commerce versus the power of state and local governments to control issues they view as local.

"Federalism isn't only about states' rights; it is about the balance between state and federal rights," says Erik Jaffe, a Washington, D.C., lawyer who filed a friend-of-the-court brief on behalf of the Towing and Recovery Association of America. "This will help clarify where the federal areas are and where the areas (of state power) worth fighting about are."

At issue is the meaning of a 1994 statute in which Congress bars state and local governments from regulating "a price, route, or service of any motor carrier." In effect, the law leaves it to market forces, or Congress itself, to regulate trucking companies – including tow-truck operations.

But the statute also says that states have the power to enact and enforce safety regulations for the trucking industry.

The case revolves around whether states may delegate that authority to towns and cities as justification to continue local licensing of tow-truck operators.

THE city of Columbus, backed by friend-of-the-court briefs from a string of other cities and towns including San Francisco, New York, and Chicago, says such a delegation of power is proper.

Ours Garage, backed by the trucking industry, towing-industry organizations, and the Cargo Airline Association, says delegation of the state's power would violate the law and undermine Congress's intent.

"Every major city in America has enacted ordinances addressing towing safety," says Jeffrey Sutton, a lawyer for Columbus, Ohio, in his brief to the court.

Mr. Sutton says that states retain the power to choose how, when, and where their authority to enact safety regulations is exercised. "When the safety exception was passed in 1994, the discretion of states to delegate their police powers to local governments was as well known as it was widespread," he says.

US Solicitor General Theodore Olson agrees: "A state generally possesses absolute discretion to delegate as much or as little authority as it chooses to its political subdivisions," he writes in his brief to the court.

Mr. Olson says that any attempt by Congress to dictate the precise means through which a state exercises its delegation prerogatives "would intrude upon the traditional authority of a state to allocate power among its various subordinate units in a manner as it sees fit."

But such an approach would undermine what Congress was attempting to achieve, counters Richard Cordray, a Grove City, Ohio, lawyer representing Ours Garage.

"In the course of deregulating the trucking industry nationwide, Congress sought to promote free competition among motor carriers in order to provide greater efficiency and lower prices for consumers," Mr. Cordray writes in his brief to the court.

"Congress abolished the Interstate Commerce Commission, substantially reduced the amount of federal regulation, and carefully limited the extent of permissible regulation at the state and local level," he says. "These steps were all designed to liberate the trucking industry as much as possible from an inconsistent and inefficient tangle of restrictions that would impede the central goal of deregulation."

In Columbus, tow-truck operators were required to purchase municipal licenses each year. The licenses cost $75 per tow truck, and $15 to $25 per driver.

The license process includes an annual safety inspection, and requirements that operators maintain liability insurance and keep records on each vehicle towed.

IN SEPTEMBER 1998, the license for Ours Garage expired, and the company failed to renew it.

When one of its drivers was cited for not having a towing license, the company challenged the licensing requirement in court.

Ours Garage claimed the city had no authority to regulate tow trucks.

A federal judge and a federal appeals-court panel agreed, ruling that Congress has preempted the city's towing ordinance.

Three other appeals courts have ruled the same way, while a New York appeals court ruled that local licensing is allowed.

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