October 16, 2009
NY Tolls and the Dormant Commerce Clause
Today, the Second Circuit published a case considering the Dormant Commerce Clause, both Privileges and Immunities clauses, and the prudential standing doctrine. In short, the facts are that New York charges a toll of 75 cents to cross the Grand Island Bridge. However, residents of the island pay as little as nine cents. The plaintiffs - one a New York resident and the other an American citizen living in Ontario, Canada - did not live on the island but paid its higher toll when crossing the bridge en route to places such as New Jersey. The plaintiffs objected and filed suit raising the claims previously listed.
The Second Circuit ruled in favor of the plaintiffs on most of the relevant issues. First, the Court found that the plaintiffs had both constitutional and prudential standing to pursue the case. The New York Thruway Authority (NYTA) argued that despite their standing, the plaintiffs should fail because New York was a market participant. The court rejected this claim by noting that New York was not behaving as a private actor would in the market for several reasons, not the least of were: 1) the operation of highways and toll roads is a core governmental function and; 2) NYTA failed to assert that any private entities had entered into the market.
Because the NYTA was not a market participant, the court considered whether the regulation passed muster under the dormant commerce clause. The lower court had ruled that there was no constistutional violation because the plaintiffs failed to allege discrimination. The Second Circuit agreed with the lower court on that point but nevertheless found error due to the lower court's failure to then consider whether the regulation - even if non-discriminatory - nevertheless burdened interstate commerce. Using the Pike test, the Second Circuit held that the New York regulation did just that. Interestingly, the court declined the NYTA's argument that the burdens to the individual plaintiffs were small, focusing instead on the overall impact on interstate commerce. This is, of course, consistent with the Supreme Court's recent pronouncements on the clause in cases such as Camps Newfound.
In addition, the Second Circuit found the district erred in finding that the plaintiffs failed to state a right to travel claim under the Privileges and Immunities and Equal Protection clauses of the Fourteenth Amendment. While acknowledging that the impact on the plaintiffs was small as they normally crossed the bridge only for shopping or pleasure - as opposed to daily for work - they were treated differently from the island residents and the claim could proceed. However, the court affirmed the district court's decision to dismiss the Canadian-resident plaintiff's claim under the Article IV Privileges and Immunities clause. The court held that the Clause applies only to United States citizens living in this country and does not apply to those living abroad, even though they are U.S. citizens.
This case is interesting on so many levels. Besides the fact that it screams EXAM!, it is a fairly thorough exposition of these issues. Scholars, students, and others interested in these issues will find much to consider and debate. Moreover, the dormant commerce issue has been raised in the highway toll context in another state and in other contexts in the Sixth Circuit as well. With all this litigation brewing, it will be difficult for the Supreme Court to stay dormant. As always, we'll keep you posted on any developments.
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