Toll bridge discount for local residents might be unconstitutional

In upstate New York, near Niagara Falls, motorists crossing the Grand Island Bridge have to pay a toll. Everyone pays 75 cents, unless you live on Grand Island. People who live on Grand Island pay as little as nine cents per trip. Is this legal? Maybe not.

The case is Selevan v. New York State Thruway Authority, decided on October 15. In a ruling that took more than a year for the Second Circuit to resolve, the Court (Cabranes, Pooler and Katzmann) finds that this lawsuit challenging the toll differential may have merit under various constitutional provisions, including some provisions which many lawyers have not thought about since law school.

First, constitutional right to travel, which stems from the Equal Protection Clause. There is such a thing as the right to travel, and the Court of Appeals compares it with "the right to free movement," which includes the right to travel within the state as well across state lines. While the toll differential has not deterred anyone from driving, it does pose a minor restriction for people who do not enjoy the discount. User fees should be uniform under Supreme Court case law, unless the state has a reason to charge otherwise. It's too early to dismiss this case. But if the district court finds that the toll discount for some residents is merely a "minor restriction on travel" that does not amount to the denial of a fundamental right, then the state wins the case. The state loses if the toll difference is "excessive in relation to the benefits conferred."

Another constitutional provision invoked here is the "dormant" Commerce Clause, which states that "Congress shall have Power ... to regulate interstate commerce with foreign Nations and among the several States." The clause prevents states from unduly burdening interstate commerce or impeding free trade in the national marketplace. But states have some authority to regulate commerce. One exception is that the state can act as a "market participant," which means the state can favor its residents if it promotes commerce like a private entity would, i.e., if the state sells cement, it can favor its citizens as if it were a private business. That's the exception raised by the state in defending this lawsuit. The Court of Appeals, however, says the opposite may be true since the law creating the Thruway Authority says this entity "shall be regarded as performing a governmental function" in executing its responsibilities. Building and maintaining roads is a core government function, the Second Circuit says, and at this early stage in the case, it's too early to let the state off the hook for the toll differential.

Since the market participant exception may not apply, the Court determines whether the toll differential violates the dormant Commerce Clause. It might. Motorists traveling around the country who have to pay the toll while crossing the bridge may suffer an injury, albeit a relatively small one since the toll is not exactly like the seven dollar extortion that we pay in crossing the George Washington Bridge. The claim is remanded to the district court to determine if the Thruway Authority imposes on drivers a burden that is not commensurate with the benefits it confers. If you have read this far, you may be interested to know that the Court of Appeals is applying a new rule here, based on the Supreme Court's ruling in Northwest Airlines v. County of Kent, 510 U.S. 355 (1994). And, if you have read this far, you deserve a medal. No one likes reading about the dormant Commerce Clause.