Supreme Court asked to review decision narrowing Commerce Clause and expanding Market Participant exception.

Lower court decision leaves no constitutional limit on the highway tolls a state could impose on vehicles moving in interstate commerce.   

Petition for certiorari can be found here, Seventh Circuit decision here.

Amicus briefs in support of this petition are due by October 12, 2021.

The Cullen Law Firm, PLLC, has asked the Supreme Court to review an opinion of the U.S. Court of Appeals for the Seventh Circuit that adopted an unprecedented expansion of the Market Participant exception to the Constitution and an unprecedented narrow view of the type of claims that may be brought under the dormant Commerce Clause.

Several individual truck drivers and the Owner-Operator Independent Drivers Association, Inc, brought a dormant Commerce Clause action challenging the Indiana Toll Road’s 35% increase of tolls only imposed on trucks to raise revenue for state projects that are unrelated to the Toll Road.  When announcing the increased tolls on trucks, Governor Holcomb declared, “The majority of traffic is from out-of-state. We’re capturing other people’s money.”

The Seventh Circuit affirmed the District Court’s dismissal of this action finding that the selling of access to the Toll Road was marketplace activity and, therefore, not subject to constitutional limitations; and that even if it were not marketplace activity, the undue burden claim could not be brought under the Commerce Clause because plaintiffs did not allege express discrimination.

The Seventh Circuit stated: “We may suppose, as plaintiffs allege, that the $1 billion received for the 2018 toll increase was used for state purposes unrelated to the maintenance of the Toll Road. Why should that matter? A state, like any private proprietor, can turn a profit from its activities.”

The cert petition argues that the Seventh Circuit’s Market Participant analysis, looking only so far as the state’s selling of toll road services, splits with the proper analysis followed by the Second, Third, and Ninth Circuits (which looks more comprehensively at all of the circumstances of the challenged state activity).  This decision also splits with the First, Second, Fourth, Sixth, Ninth, and Eleventh Circuit, which all recognize constitutional undue burden claims, including challenges to user fees such as tolls, without the need for a plaintiff to allege express discrimination.  The Seventh Circuit’s decision creates a much larger universe of state activity that is now immune from constitutional scrutiny than previously recognized by the circuit courts or the Supreme Court.

In the context of this case, the Seventh Circuit’s decision opens the door for state officials to increase highway tolls by any amount, including upon persons from other states to whom they are not politically accountable, to address their state’s budgetary needs.

Amicus briefs in support of this petition are due on October 12, 2021. Supreme Court case number 21-392, Owner-Operator Independent Drivers Association, Inc., et al., Petitioners v. Eric Holcomb, Governor of Indiana, et al., For more information, please email

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