Legal News

On Tolls, Transponders, and the Constitution?s Commerce Clause

By Ashby Jones

Are those electronic toll transponders — called E-ZPass in some areas of the country, FastPass in others — helping states violate the Constitution?

That’s the provocative question asked in a story today by the NYT’s John Schwartz. The problem, according to two recently filed federal lawsuits, is this: Both Massachusetts and Rhode Island charge their residents using E-ZPass less than out-of-staters at some bridges and tunnels.

The lawsuits claim that this differential pricing violates the Commerce Clause of the constitution, which states: “The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes . . . ” According to Brannon P. Denning of the Cumberland School of Law, the clause was written into the Constitution to promote a common market among states, and to correct "cycles of discrimination and retaliation" that had occurred in the 1780s.

Since then, courts have required states to meet tough tests if they are to favor their residents. They have to show a valid local purpose unrelated to economic protectionism, and demonstrate that there are no less discriminatory alternatives.

Many states have given discounts to residents living near tolls to ease the financial burden of crossings that may be necessary daily, said James A. Crawford, executive director of the E-ZPass Interagency Group, an organization of agencies around the country that offer electronic tolling.

"Toll operators have recognized their presence in a community and their need to economically support that community," Crawford said.

A successful lawsuit could have a bigtime effect on commuters in and around New York. Most drivers with an E-ZPass pay $8.30 to cross the Verrazano-Narrows Bridge, but Staten Islanders pay just $4.98, for instance. (We wonder whether that’s the priciest toll in the country. Anyone know of one that’s pricier?)

Full post as published by Law Blog - WSJ.com on April 02, 2009 (boomark / email).