The latest road-repair plan from Governor Gina Raimondo is a characteristically Rhode Island-style Rube Goldberg plan, with rebates for gasoline taxes, property taxes and registration fees being implemented, alongside a network of tolls positioned at RI bridges, to be applied to large- and medium-size commercial trucks.

According to Ted Nesi of wpri.com, Governor Raimondo and her staff are aware that the US Constitution’s Interstate Commerce Clause sets limits on the types of toll-structures that can be utilized by state governments…

Kevin Gallagher, a deputy chief of staff to Raimondo, told WPRI.com it would be unconstitutional for the state to simply allow Rhode Island trucks to pay a lower toll than out-of-state trucks, but the administration expects no legal problem from offering them tax credits and rebates separately to accomplish the same purpose.

However, Mr. Gallagher may be a bit too cavalier in his analysis.  When deciding upon the constitutionality of transportation-financing schemes, the Supreme court has looked beyond individual fees and taxes in isolation, and has taken into consideration the overall impact of multiple charges.  One-half of the test in American Trucking Associations vs. Scheiner, where a combined “marker fee and axle tax” system for Pennsylvania was rejected in 1987, was based on the overall impact that different fees/taxes had on in-state versus out-of-state vehicle driving-costs per mile…

[Pennsylvania’s flat taxes] discriminate against out-of-state vehicles by subjecting them to a much higher charge per mile traveled in the State, and they do not even purport to approximate fairly the cost or value of the use of Pennsylvania’s roads.

In that opinion, the court was clear that a difference between in-state and out-of-state rates didn’t have to be formal to matter, it was “the practical effect” that was important…

In practical effect, since they impose a cost per mile on appellants’ trucks that is approximately five times as heavy as the cost per mile borne by local trucks, the taxes are plainly discriminatory.

Based on the precedent in ATA vs. Scheiner, the property-tax part of the “rebate” package being proposed this week would almost certainly be ruled unconstitutional, should it lead to any significant difference in driving costs-per-mile not made available to vehicles registered out-of-state.

It is not as certain that the other two “rebates”, for gas taxes and apportioned registration fees, would be rejected by the courts, since they would be available, at least formally,  to both in-state and out-of-state truckers.  A decision here would depend on the analyses of costs-per-mile presented to accepted by the courts — analyses which would include, in all probability, the impact that daily maximums will have on costs-per mile for in-state versus out-of-state drivers.

(Also, as a matter of legal strategy, given the Supreme Court jurisprudence’s in this area, it’s probably a bad idea for Governor Raimondo’s staffers to come out and say the purpose of the toll-plan is to give local vehicles a lower rate; such statements are likely to end up in a anti-toll legal brief sometime in the near future).

If getting bond investors their interest payments construction underway as quickly as possible is of the utmost importance, Rhode Island’s political leaders will need to consider how much of a risk of a lawsuit they are willing to take in order to get the local carve-out; a case like this would take years to work it’s way through the Federal courts and the whole tolling-plan might possibly be enjoined during the litigation process. Of course, an injunction against the toll-plan would mean no money for bond payments road-repairs right away.

On this issue, Rhode Island’s legislators would be wise to keep in mind the lesson of Gordon Fox: Because Rhode Island’s Democratic leadership can play fast-and-loose with interpretations of rules and laws while inside the statehouse (e.g. nullification, revolving door judgeships) does not mean they can extend that power very far outside and forgetting about this can lead to unfortunate consequences.