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On trucks, tolls and the US Constitution

J. Bradley Klepper
Attorney at Law

On rare occasions, I am right about things. By rare, I mean about as often as I win an argument at home. That’s rare.

Despite my abysmal track record, I was (finally) proven to be right about something — namely that the truck-only tolls in the great state or Rhode Island are unconstitutional!

I know many of you may find this hard to believe, as I am the guy who thought the Supreme Court would grant cert to the California Trucking Association case challenging AB5.

Well, they can’t all be home runs.

To refresh your memory, back in 2016 the good folks in the Rhode Island legislature thought it would be a good idea to impose tolls on vehicles traveling on their roadways.

That, in and of itself, would be fine. However, the state legislature decided to take it a step further and make the tolls just apply to trucks! And that, my friends, is where the problems began.

In 2016, then-Gov. Gina Raimondo (now U.S. Commerce Secretary) decided that money needed to be raised to rehabilitate the state of Rhode Island’s highways and bridges.

Moreover, the state alleged that 70% of the damage to the roadways was caused by big trucks (the methodology for determining this percentage was hotly disputed). In its infinite wisdom, the state decided that only trucks should be made to pay the tolls. This decision would result in only 3% of the vehicles traveling the state’s roadways paying 100% of the tolls.

This did not pass muster with the court. At the time, it was argued by many that such a toll was unconstitutional.

Well, we were right. In its decision granting a permanent injunction earlier this fall, the courts said:

“Because RhodeWorks fails to fairly apportion its tolls among bridge users based on a fair approximation of their use of the bridges, [it] was enacted with a discriminatory purpose and is discriminatory in effect, the statute’s tolling regime is unconstitutional under the dormant Commerce Clause of the United States Constitution.”

As background, the Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution which gives Congress the ability to “regulate commerce with foreign nations, and amongst the several states, and with the Indian tribes.”

In other words, Congress can use the Commerce Clause to exercise legislative power over the activities of the states. In the very simplest of terms, the Commerce Clause allows Congress to pass laws and regulate commerce between the states.

The Dormant Commerce Clause, implicit in the Commerce Clause, prohibits states from passing legislation that discriminates or excessively burdens interstate commerce. This means states can’t enact protectionist policies that favor state citizens or businesses at the expense of others conducting business in the state.

Therein lies the issue with the truck-only tolling regime.

Now, this may seem like a pretty straightforward case — and to most, it appeared to violate the Dormant Commerce Clause at its inception. However, it is of major importance to our industry. Quite simply, if truck-only tolling had been found constitutional in Rhode Island it is not a stretch to think that it would quickly be adopted by other states.

I believe American Trucking Associations President Chris Spear said it best in response to the court ruling: “We told Rhode Island’s leaders from the start that their crazy scheme was not only discriminatory, but illegal.” Spears also added: “We’re pleased that the court agreed. To any state looking to target our industry, you better bring your A-game … because we’re not rolling over.”

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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Supreme Court , US Constitution


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