Wednesday, April 10, 2013

Bridge toll discount for island municipality is not unconstitutional

These days, with EZ Pass, we whiz through the toll booths with nary a care, except that the state is still taking our money. Not all toll charges are created equal, though. In upstate New York, residents of an island municipality use certain toll bridges at a discount, unlike their neighbors, who pay more. The aggrieved neighbors have sued the Thruway Authority under the constitutional right-to-travel and the Commerce Clause. They lose.

The case is Selevan v. New York State Thruway Authority, decided on March 27. Here is how the Court of Appeals frames the issue: "We consider the constitutionality of a policy of the New York Thruway Authority that provides a toll discount to residents of Grand Island, New York, who must use bridges in order to travel by car between their homes and any location not on Grand Island, while denying the discount to all other motorists." Is this fair? Maybe not, but the Constitution does not always require what's fair.

Grand Island is an island municipality of about 20,000 people. The island is in the Niagara River. It costs a dollar to cross the bridge, but commuters pay 28 cents and Grand Island residents pay nine cents. Plaintiffs argue in this putative class action is that the toll differential violates the right to travel. While the Court of Appeals (Cabranes, Leval and Sack) say that the plaintiffs have standing to challenge the toll differentials, that does not win them the war. Minor restrictions on travel do not implicate the constitutional right to travel. This is not an invidious distinction that requires strict scrutiny. Rather, under the Northwest Airlines test, taken from the case of the same name, 510 U.S. 355 (1994), there is a reasonable basis for the toll distinctions.

The resident discount alleviates the "severe geographic 'isolation' faced by Grand Island residents and the 'residuary effects of nearly 25 million non-resident travelers bisection the island annually." Grand Island residents may have to use the toll several times a day, and while the discount may carry some inequities, that is not enough to strike it down under the Constitution. Nor is the higher toll amount for everyone else excessive; it's only 28 cents and one dollar. (Try crossing the Tappan Zee bridge, which costs $5.00). That money is necessary to maintain the highway.

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