The Electric Commentary

Thursday, December 30, 2004

Everything Is Unconstitutional: The first in a series.

Part I: Tollbooths

In a few days the tolls in Illinois will double in price for anyone without an I-Pass transponder. The I-pass transponder is a small electronic device that automatically deducts money from a pre-paid account when you drive through a tollbooth. For your information:

1. An I-pass transponder costs 50 dollars, making it a poor investment for infrequent Illinois travelers.

2. Tolls at the Wisconsin border were already higher than tolls further in state. The “Beloit” toll on I-90 is currently 50 cents, and will be $1.00 as of the first of the year. The I-94 toll is currently 75 cents and will increase to $1.50 as of the first. In-state tolls are currently 40 cents and will increase to 80 cents on the first. Unless, that is, you get an I-pass transponder in which case you will still be charged the cheap rate.

3. (Disclaimer - I am unfamiliar with all other tolls in the state, so my sample size is limited).

From this information you may deduce that the state of Illinois is trying to screw Wisconsin residents, and you are correct. Fortunately, If memory serves, screwing people from other states is in this fashion is unconstitutional.

Fun Constitutional Law fact: Commerce Clause

The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

-Art. I, § 8, cl. 3

As Congress can regulate interstate commerce based on the above clause, it follows that individual states may not regulate interstate commerce. This is known as the Dormant Commerce Clause (here is the Wikipedia entry on the DCC, for what it's worth). The political purpose of the DCC is to ensure that producers have open access to every market in the US. Therefore, states may not discriminate against out-of-state producers in favor of in-state producers (with two exceptions, if memory serves. 1. Congress authorizes the state to do so, or 2. The state is a market participant). Clearly, due to tollbooth rates, it is more expensive for out-of-staters to ship things into Illinois than it is for local producers to ship things within Illinois.

I believe that the Illinois tollbooth setup violates the Dormant Commerce Clause and is therefore unconstitutional. A class action lawsuit may be possible. Granted I’'ve done minimal research on the subject and as a libertarian I think almost everything is unconstitutional, but this actually seems rather obvious (maybe Evan Schaeffer can take it up). This fact pattern seems similar to the Wine Wars fact pattern (minus the 21st amendment issues, which should actually strengthen my tollbooth case, as the 21st amendment is used by the government to justify state regulation of the interstate commerce of alcohol).

There may be some issue I'm missing (perhaps Congress has specifically authorized this tollbooth scheme) but this case seems like a slam dunk.

One last thing:

The tollbooth must rank as one of the worst ideas ever conceived of, and is another example of government's tendency to make a public service intentionally annoying so as to drive customers away (see: here). The freeway around Chicago is congested. The obvious solution is to build a bigger freeway. Instead they decide not only to drive away customers, but also to slow them down and charge them for it. If all toll booths were simply removed from Illinois freeways I would wager a large sum that business in the area would pick up, the air would be cleaner (most air pollution from cars is produced while idling), and people would be happier (especially along the indefensible I-90 stretch from Chicago to Beloit which includes five (5!) tollbooths).

Instead they choose to waste a good 15 minutes of my time, per tollbooth, to extract 40 (soon to be 80) cents. My time is more valuable than that. Maybe I’ll send them a bill.


  • Seems to me they're giving a break to their most loyal customers. I don't think that's unconstitutional. If I lived in Wisconsin, and drove from Beloit to Chicago, couldn't I buy an I-pass? If I didn't drive it very often, then why would it matter?

    "The obvious solution is to build a bigger freeway."

    I wouldn't say that's the obvious solution. I would propose a toll system that's a hybrid of the I-pass system and the Ohio toll system, where you take a ticket when you get on the freeway, and pay according to which exit you take, on the actual exit ramp itself; the longer you stay on, the more money you pay. The I-pass would streamline this even more.

    By Blogger RyanSimatic, at 3:43 PM  

  • "Seems to me they're giving a break to their most loyal customers. I don't think that's unconstitutional. If I lived in Wisconsin, and drove from Beloit to Chicago, couldn't I buy an I-pass? If I didn't drive it very often, then why would it matter?"

    Whether tolls are unconstitutional doesn't have anything to do with the difference between what Illinois residents pay versus what Wisconsin or other residents pay, or even whether there is a difference at all. At least not for DCC purposes. What is important in determining constitutionality is 1) whether it is "interstate commerce" and 2) who made the law. If it is interstate commerce, congress must make the law. Here, Paul is argueing that tolls are interstate commerce, or more accurately, that they have a substantial effect on interstate commerce and that the State of Illinois passed the law.

    By Blogger DannyNoonan, at 11:23 PM  

  • It isn't interstate commerce. What is the product? the roads, which are located in Illinois and never leave Illinois. Does it effect commerce? Sure, but Illinois merchants are not exempt from the toll, and out-of-state merchants are not excluded from the discounted I-pass.

    By Blogger RyanSimatic, at 3:12 PM  

  • I agree. However, the Court might not. The interstate commerce clause has historically been used by congress to justify doing whatever it wants. The Court has, among other things, said that a man growing wheat on his own land for personal consumption is interstate commerce.

    The case law for the Dormant Commerce Clause is not all that clear about what kind of test Courts should apply. In Kassel v. Consolidated Freightways Corp the court balanced the benefits to the state against the costs to interstate commerce. The Court held that an Iowa law that limited the length of trucks except those manufactured in Iowa was too burdensome on interstate commerce and was therefore unconstitutional.
    Also see Dean Milk v. Madison:

    Both of these cases involved overt discrimination. That is, they specifically gave Iowa truck manufacturers and Wisconsin milk producers, respectively, an advantage. The discrimination in toll booths is clearly not overt. However, the Court has also found dormant commerce clause violations when the discrimination is not overt. In Pike v. Bruce Church Inc. the Court held as unconstitutional an Arizona law mandating that fruit had to be shipped in closed standardized containers. The law, in effect, gave an advantage to Arizona based packing plants over nearby California based packing plants. The Court held that the law was unduly burdensome on interstate commerce.

    The truth is, that when dealing with the DCC, courts have been pretty unpredicable. Sometimes then the discrimination is overt they find it Constitutional anyway. Sometimes when it is not overt they find it unconstitutional. So with this, who knows?

    By Blogger DannyNoonan, at 3:53 PM  

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