good morning ladies and gentlemen this is judge easterbrook you will hear me but not see me today and we are ready to hear oral argument in the st case owner operator drivers association against  dollars word of warning well actually two words warning since we are all appearing remotely in one way or another there are always the risk that something will go wrong with a communications link and we may have trouble hearing each voter that happens i will ask you to paused and we will get back in contact so that everybody can be heard the order is that we will take a ten minute break after the to appear on behalf of the owner operating independent drivers suited one hundred and sixty thousand members of the small business truckers as well as on behalf of several of their individual members the district court's decision permits a public private partnership to defeat at the pleading stage a dormant commerce clause challenge despite serious flaws undercutting the rule twenty six rul system is in any way discriminatory based on whether a truck comes from or goes to out of state work were contending that the whole system  has a much greater impact on interstate truckers who pass through those you not you could you answer my question are you contending that these tolls are discriminatory yes in what way the the whole raise thirty five percent on interstate trucks has a much higher burden on them than it does on on  why would the drivers continue key use the toll route when they have other options isn't that isn't this a self correcting problem in other words if the tolls get was not a factor there and shouldn't be a factor here either and there are any number of reasons why drivers elect to go on a turnpike there are often here so let me ask a related question are you arguing that there is something unique about the illinois sorry the indiana toll road such that there are no substitutes for it because there's us twenty there's us thirty and the reason i think that may be relevant is because you're you seem to be saying that only the state of indiana can operate toll s and that's of course historically inaccurate there have been many private toll roads over the history of the united states but i wonder why you think this is now a state monopoly well i don't think  we probably is but the liquid allege that it is a state monopoly you can go down a parallel road if you want to but when the state builds a very fine limited access road fewer red anyone who doesn't actually agree to use it and pay the feat it's called the user fee and whether it's a monopoly and not the user fees or the evansville were and northwest airlines have set a rough approximation is about all you can do and i'm not sure on what evidence you think the old toll was better this thirty five percent higher toll courses more money but maybe that's a more accurate measure allege in the complaint of her grandson believe it so one of the three to one of six or ninety three to one of the six in that area then the tolls prior to the thirty five percent increase were adequate to cover the the expense of allowing the trucks to travel up and down the turnpike perfectly at which was no under tolling at that point and they increased it  increase was not justified by any increased costs imposed by the trucks or anything and the claim that trucks are more provide more wear and tear on the  highway is specifically dealt with in the complaint and creation factually if it was adequate before the thirty five percent increase it was excessive and the toll was excessive because the cost of taking care of the truck even though they may cause more wear and tear was adequately taken care of prior to that so many we should talk about market participants because of roots in the market if somebody wants to raise the price for their product they're entirely able to do so and they'll see  consumers will continue to buy it at the new higher price whether it's a car whether it's a food processor whether it's anything else so in this instance the state tried to see and so i'd like you to talk about that and actually i would also like a quick comment and what pertinence you think there is if any of the two thousand and nineteen amendment that the indiana legislature enacted limiting use of the funds a convenience road or a bridge just for the purpose of generating revenues through tolls the same way that a well located private property owner might do when you say there are no conditions under which that could happen i don't think we're going to have a farm but under these conditions when they're in when they're imposing a polling precinct thirty five percent when the prior told covered all the costs of providing the facility to the drivers and was reasonably related to the value created from the drive was when they exceed that under these circumstances that does not that should not be covered  that is that would you're saying now that that violates one of the one of the if this is all i think you could i just get a yes or no because i got a yes before and i think i'm getting a no now that it would have reached the same conclusion without the concession and i don't know that i'd call that dicta i'm just i'm not sure well it never did say that it would have reached that conclusion it never decided any that as you assert there are substitutes so let me postulate suppose interstates thirty and twenty over the many years that the indiana toll roads existed have been allowed to deteriorate to the point where they can't take heavy truck traffic you see signs like that from time to time you know trucks over so many tons or axles or the like and so so what if there isn't a good substitute and secondly of what importance if any is it that the indiana toll road is part of the interstate highway system which is obviously a federally subsidized system that connects the entire united states making it look less private and more to have particular segments that offer faster facilities for a the not regulatory if there would be but market activity with respect to the importance of other choices against the city of los angeles for instance well to be sure but because one of the core principles of the dormant commerce clause which some people have said is one of the parts of the  cease to be market activity even though on the surface of saying it is a it is a toll road you really have to look at the mix of powers that the nd year the government just exercising if the would intervene if somebody were shoplifting so if somebody doesn't pay to hold there is no reason why the state would not come to the aid of the of the toll road or in that case as well that is just market  just flatly and consistent or is our position for that matter in the th circuit flatly inconsistent with the sale of and against new york transit authority decision there's lots of language there that makes it seem as though  these these roads are in fact performing a government function i will say that they disagreed with you  i'm not going to color that anymore rose than it is because they didn't sell it and won with respect to whether this is this is a disagreement over labor interest you know the supreme court tend to doubt it because it's a it failed because the nd circuit took a view of evidence there directly contrary to the view that when that are in here they said that the funds didn't have to be so closely tied to the actual highway and any number of other things that are contr weren't this is not a case in which case could go forward because there is not a good armor clause case did it in any event their view of that would preclude dismissal without some discovery no because i think their conception of evansville is mistaken i think evansville fail at that stage because there is no dispute or will fact that you can get out of the complaint but you know my larger point is that it isn't your honor i mean my larger point is that this is governed by polls and taxes and in describes told aspects of this from one paragraph to the next and so the notion that there is a special category of illegal passed for when polls that is dedicated are only in absolutely no limitations imposed by them if every state in the union were to do that every state could ignore the commerce clause and charge whatever the market will bear to into state truckers to generate revenue to fund infrastructure projects projects throughout the state as they they do here without any functional relationship with the turnpike for which the