The details of Kasich’s Turnpike Plan are still emerging.  Yet we know enough now to question whether the plan is constitutional.

Two aspects of the plan raise significant issues under the U.S. Constitution.

  • First, in an effort to placate possible opposition in Northern Ohio, different rates will be charged for those making short, as opposed to longer trips.
  • Second, money from tolls will be used for projects unrelated to the Turnpike.

Hang on tight, because we are going deep into Constitutional Law and the Commerce Clause.  This is a complicated area of law – known as the “Dormant Commerce Clause” – where even the bravest lawyers fear to tread.

We start with the Commerce Clause of the United States Constitution.  This grants Congress the power to “regulate Commerce . . . among the several States.”  The courts include within this power something called the Dormant Commerce Clause, which limits the power of states to discriminate against interstate commerce.  In other words, the Dormant Commerce Clause prohibits “economic protectionism” or actions by one state to benefit in-state economic interests at the expense of out-of- state interests.

A 1987 Supreme Court case, American Trucking Ass’ns v. Scheiner, 483 U.S. 266 (1987), illustrates this point.  That case involved Pennsylvania taxes imposed on trucks. Simplifying the facts slightly, Vehicles not registered in Pennsylvania were required to pay a $25 fee.  The Court found that the fee was unconstitutional because Pennsylvania did not treat interstate and intrastate interests evenhandedly.

Kasich’s plan does not explicitly discriminate against out-of-state drivers and trucking companies.  But this does not mean that the plan passes muster under the Dormant Commerce Clause.  The Scheiner decision noted that a fee would be constitutional “so long as a State bases its tax on a relevant measure of actual road use.”  In another case, the Court said that a toll must be “based on some fair approximation of use or privilege for use.”

The new Turnpike Tolls could be unconstitutional because they will no longer be based on a “fair approximation of use.”  Instead, the Turnpike will be making a profit on long-distance drivers, and using that profit to fund interest payments and projects elsewhere in the state.   Court have been deferential to states where tolls and fees are concerned, but in those cases the tolls and fees have generally been crafted to reflect the actual use of the roads.  Courts have, for example, invalidated fees based on seating capacity and the amount of gasoline over 20 gallons in a gas tank.  In this situation, a key component of Kasich’s plan seems to be abandoning the idea that the toll is related to actual use.

In addition, the plan is subject to a challenge on the grounds that it has a discriminatory intent and purpose. Here, the Dispatch editorial (predictably) praising the plan may be Kasich’s undoing.  The Editorial notes that “Northern Ohio benefits most . . tolls for local drivers are frozen for 10 years, while increases for longer passenger trips and trucks will be capped at the rate of inflation.”

If a toll harms harm out-of-state interests more than in-state interests, courts ask, does it burden interstate commerce excessively?  Under Kasich’s plan, Ohio residents will almost certainly benefit from the discounted rates for short trips.  The legal standard is that such schemes are valid unless the burden imposed on such commerce is “clearly excessive in relation to the putative local benefits.”   Here, the Kasich plan could unconstitutionally burden interstate commerce because in-state drivers will make a disproportionate number of the “under 30 mile” trips.  In other words, the Kasich plan rewards and encourages travel within Ohio at the expense of interstate travelers who must pick up the “slack” in financing other projects.  This will, in the end, be a fact-intensive question; whether this shifting of total toll burden violates the Dormant Commerce Clause can’t be evaluated until we are able to get into the details of the plan.

Kasich’s Turnpike Plan is not nearly as blatantly unconstitutional as other Republican schemes we have examined recently.  Notable unconstitutional attempts by the Republican Legislature include: the drug testing plan for those on public assistance, the anti-immigrations measures considered by the Legislature, the efforts to defund Planned Parenthood, and the so-called “Heartbeat Bill.

This possible “roadblock” to the Kasich Turnpike Plan needs to be examined closely.  Questions about the constitutionality and threatened litigation are likely to make it much more difficult for the state to sell bonds based on the new tolls.