sr and i appeared today on behalf of the owner operator independent drivers association a large association of small business truckers and the national motors association ordinary drivers like you and me at me walker vehicles frequently on the pennsylvania turnpike i would like to reserve three minutes for a bottle to be granted johnson we would ask if you could have you know that you guys receive this later in the afternoon and you could help us answer some of the questions we put to you in our communication yesterday let me do that thank you i'm anxious to get that those questions  persons who agreed to pay for the use of those facilities like a toll the highway covered by a toll is a special facility constructed in a sense it has limited access and the people who are willing to pay the toll are entitled to taxes there and when they pay that poll they're paying for the privilege of using that limited access highway is that reporters repeatedly talked a user fee brings revenue into a government unit as do taxes but beyond that the similarities start to fade out i have no doubt that  difficult than otherwise to define poser on such an extreme end of the user fee definition that the american trucking association in the rhode island case which last night rhode island is the st case in eighty years under the tax injunction act that someone called a toll a ta and there's another really important present isn't that because it's come out almost all of the cases that are in this area have percolated to the supreme court from state supreme courts they haven't gone through the federal system and presumably they haven't gone through the federal system because of the tax injunction act issues i usually prefer the federal courts and such matters to look for declared her and then john to relief i bring my cases where possible to the federal court and get a more neutral form of justice but let's let me give you a definition of tax and this may help you with the use of a a tax is a mode of raising revenue duly authorized taxing authority and the revenue is varied from the general public for the needs of the public or for general public purposes that's a tax is that we legend your complain they're here they're engaged in revenue raising for purposes far beyond simply the use of the turnpike and that's that those those are terms that you use that it's a revenue raising function let me read you from i must wrangle over says buckley supreme court of pennsylvania decision that specifically says it gets to that point who can impose a tax on the part of taxation in all pennsylvania turnpike authority is not part of the legislature it has no authority to impose toll taxes rather it is responsible for establishing setting the brakes for and collecting tolls on the turnpike it has no authority under pennsylvania law to do anything with taxes it has no authority to impose a tax error go the tolls it imposes authority to do something which we contend violates the federal constitution that that that is the entity author wants to push taxes and it's giving a direction by the terms of those acts that includes things the very broad statewide projects the answer to that would be that the legislature has very limited powers under the constitution to delegate authority to impose taxes it may delegate authority to two counties how obese but in each case of such delegation the entity to whom the delegation is made are run by officials who are aleck by the people at the ballot as at the polls and so the legislature has no authority to delegate the  the pennsylvania poll commission which is not elected by the people not elected at the ballot box they're all appointed by the governor so the idea that in an ak four thousand and forty nine you can delegate authority to impose tolls runs counter to the entire structure of which the governs in a calm while in sydney if the commission has the authority to increase the tolls on the turnpike authority to increase tolls and to set the tolls and to collect them but that authority is constrained under the commerce clause and under the constitutional right to travel constrained have under the commerce clause the dorman is three hundred percent of the rate of the value of the cost of operating and maintaining the turnpike vastly in excess of the case of the controls as evansville might that be because they had n thousand and seven may be five times in our fifty years hardly at all they've increased tolls regularly in response to ak forty four dollars now the increase includes pennsylvania drivers know why should we read those as criteria for how you define easier for me and and why isn't that consent in other words looking at it from the perspective on that basis and here are that when we're talking about the increase in tolls the commonwealth is not arguing that that using increases were your designed or your nor are they putting forward as a defense that it is commensurate with nearly the budget for running the turnpike there there candidly saying these are all of this state wide projects that we are now raising revenue for and that's if that's the nature of your valley what they're efined a fee paid by a person who elects to use a special facility constructed for his potential benefit by the state and the evansville case says that you may not impose user fees that they will represent the at least a rough approximation of the cost of the facility that you're making available but isn't it true that it was like we relied on a case called auto club and in that case they were looking at the transportation system in a broader way and if that's the prison that our precedent says we should follow how can you get around it can't isn't it the precedent that tells us it's not just for the fee to use the specific turnpike but the system in which the turnpike operates because or benefit from a better means of getting around the state the commonwealth of on that view that you look at the see the benefit provided to the transportation system how do we do we not follow wallach's message for several reasons in the auto club cases they would dealing with transportation to and from the island of manhattan in new york tunnels bridges rapid transit and there was a single integrated transportation system that they demonstrated through expert testimony at the trials and if the lincoln tunnel goes down it's going to affect the holland tunnel it's going to affect the george washington bridge that were collected from the turnpike see i'm going to call the non turnpike projects funded by tolls your adversaries respond by saying there's congressional enactment that authorizes all budget and with respect to the two that aren't authorized they say that there's no allegation that toll funds were used for those projects when was the airport terminal another one ripped out with a train are you able to say that they are wrong and that the statutes that they bring arises the secretary to make to continue to make funds available if the states agree to conform their conduct of certain standards and if they conform their conduct it is not if you dealing with a toll but not be more specific if you look at the statute that they quote it allows toll was left over to be expended on a non poled facility items but it does sentence authorizing the secretary it talks about authorizing the public ferdi it's a public authority than the use the access to guns it doesn't use of the access to funds presuppose that they have been able to generate access to the standard has it been a must affirmatively contemplate this congress it must be specifically authorized a mistake to believe clear there is nothing in that one hundred and twenty three  statute stick to that that that is that previously if i understand correctly it has been the case that i've had a state raise excess revenue it would be for fitting federal funds as a condition of receiving federal funds it had to stay within that limited budget this act was what authorized just a change in that in other words states could now pre available if states conform their conduct to certain standards it authorizes expanded flexibility by the secretary of transportation it does not direct its attention to the authority of the state to do anything they must conform their conduct to standards but when you look at there's the public at very not the secretary the public authorities who want to get federal funds must conform their activities double in purple the total reads in order to generate that access because that is the really good which they have increased the polls is constitutionally inappropriate and there is nothing that in that statute that authorizes the authority running the told facility to do something in a constitutionally inappropriate way isn't that what they could do previously were in federal funding projects outside of the poll facility the congress was happy to have finding new means to get those dollars because he talks about substituting basically funds that the feds would have obligated for these projects now the state with its excess toll money can be used to maybe that's exactly what they were hoping to accomplish the expense of running a big turnpike can vary from year to year and there are always excess funds you have some years with a lot of snow removal police work for that and all that you know of years without that they accumulate under the under the evidence burke stand it when when they told her just a rough approximation of their actual cost they can accumulate revenue and that last section allows them to take that revenue which is accumulated in the normal course of things the nickels and dimes that i've spent every year and to use that there is nothing in this provision and again look at the spinoff books other than and try the new york it was another american trucking case where the right circuit concluded that the statute there did represent an authorization by congress to go to authorized revenues from the from the new york thruway to be used to support the new yawk canal system it's a big tourist attraction and a favorite of saturday morning and that was a rifle and  gift to the canal system and nothing more that's not there is a thing to use just like the authorization to use here you know it may be for different different purposes than what's listed out that federal funds can be used for but in terms of the the language wouldn't we be splitting from the nd circuit to say that ice t didn't cover this what wasn't an affirmative authorization the problem with it is that it was an authorization the new york toll case they found that the excess tolls being spent on the canal system violated the doma commerce clause then law everyone discovered this very special  i think for the purposes of this case you can say as a matter wall that tolls which accumulate three hundred percent of the act of revenue of three truck representing three hundred percent of the actual whether additional dredging provides sufficient benefit areas and is as opposed to a st level bridge as well is that really where that where the supreme court given some of the language it appears for example in united haulers is telling us we should go with the management of local authority under the evans berg standard you are required to look at whether or to show that that's excessive and reasonable except it isn't that the plaintiff would accept that burden in this case it's this is not a closed case i mean this is my mileage from being a close case to the benefits of of living in a civilized society provided by general taxes th cases where the supreme court itself has talked about tolls as being a species of tax a tax on the privilege of using the road it talks about but also the privilege of  and and then the concept of a user fee is something that is per se constitutional would be a lot of sense and be consistent but why should we why would it make any sense to treat differently for example a fuel tax based on miles versus a toll that is based on miles well a fuel tax that is excessive in relation to the taxable event could be challenged on that today that that particular tax it's a fuel use tax it's a tax on the consumption of fuel per mile driven and it is designed to recover wear and tear on the highways imposed by people who drive  is whether when this when the commonwealth of pennsylvania creates a facility which it did many years ago called the pennsylvania turnpike and it spends money in creating and maintaining that and it offers access to that to people who are willing to pay for that is a user fee and it's governed by the constitutional provisions directed at user fees evansville northwest airlines and the supreme court tell us that you may not impose charges that bear no relationship to the cost of operating in maintaining or that bear no relationship to the actual value given to the person who's who's using the turnpike has told us that you may not it's always said it the other way that is if you meet those criteria it is constitutional the supreme court has not said if you don't meet those criteria it's unconstitutional to the contrary it is proceeded to look under complete auto at other ways it could be constitutional right i disagree with that analysis if you don't meet those standards you look at the extent to which they exceed the standards and does that create an undue burden on interstate commerce in violation of the dorman commerce clause and there are dozens of cases that give this court and others the authority to look at the burdens created but shiner it still said notwithstanding our recent precedents in validating taxes where they are internally i inconsistent edison case specifically said we're examining general revenue fees or flat taxes and in trials case our coal or extraction taxes in montana do not apply what we say here to user fees they are entirely different and that and then this is so the supreme it many ways counsel but my concern is that that's essentially circular user fee if it meets these criteria i think meet these criteria it's constitutional so if something is held out as a user fee to analyze to see if it actually meets the criteria for user fee if it doesn't meet the criteria for user fee that doesn't mean it's necessarily unconstitutional you're still looking at the broader question of whether it imposes an undue burden on interstate commerce the conclusion of the corgan evansville is if you fail the three part test there two of which are relevant here if you fail any one of them you've created an undue burden on commerce which is actionable they set that standard and they said if you impose a user fee that is not and that exceeds significantly the cost of operating and painting the used facility or if the amount of the charge exceeds the value of that used to the driver in this case it is an un do burden on common not to what happens bills language is at least so long as the total was based on fear x mission and he concluded it was so of course he didn't need to go forward with further analysis but it's at least so long as it's not that that was for tolls tolls being identified as some unique category of tax and where where do we get the authority that that tolls if if that if the toll is based not on on compensation for the specific services that are being offered but the toll is very candidly being based on general revenue raising purposes why would that still have to meet the criteria for user fees what authority says that you have to convert it into a tax and hold that it's a tax to get over and a complete auto crandon it is promulgated by an agency pennsylvania toll commission which has no authority to impose taxes if we can absolutely no authority under pennsylvania law to impose a ta so so the sleight of hand trying to convert what is clearly meets the definition of a user fee converted into a tax the walking point there is the agency that does that has no by someone without authority is that a consequence of that holding i've not pursued those implications but the certainly would be looked at by a lot of people on the back of this room i'm i'm guessing so we don't we haven't seen that but  when you see in the new york throughway case before it was found that congress consented to helping out the canal system before that happened the tolls were seven or twelve percent of the revenue good going into the thruway all right and they found that to be constitutionally excessive here we're at three hundred percent you don't have a you don't have a difficult question here it is so far over the top that i don't think the rd circuit court of appeals wants to be the st one to say we're going to let you off the hook we don't care whether they're three hundred percent we don't care whether it's five hundred million dollars a year we're allowing the state to take all this money that should be paid by the local residents here and pass the cost of all of these local goodies that you get scattered around the whole state and passed out off to the interstate trucking industry i don't think you want to make that decision it is so far off the scent of coast to be reasonable that it is not a close question now if you get down to six or eight percent or two or four percent you've got an interesting question here of three hundred percent you don't have an interesting question that is  you've acquired be evans burke test and you look at how much they're they're breaking in with these fees and they are so far out of line with anything that could be reasonable  situations of people wring their hands over let me assure you that the interstate trucking industry does not want to run the pennsylvania turnpike out of business it's a very important facility that operates to the benefit of regular people and especially truckers going over the mountains here with heavy load you need a good well run highway we don't want to run them out of business but the governor here and the and the r v general have was returned there i see will sit at the table and work something out but you know you talk about taxes judge cross i think actually sion is the solution to this i think the pennsylvania legislature o there is any particular burden on interstate commerce as opposed to commerce generally why isn't this like the american trucking versus  buying and selling long dinner they're staying at hotels they're moving along a buying fuel the whole operation of the turnpike is described as a vital link between the east coast in the in the midwest and on to the on to the mountain state it is a vital interstate link and you get on that you are engaged in interstate commerce by grabbing at your engage in interstate commerce by operating it and making it and  the the problem is a burden on him to state commerce not the burden not interstate travel per se you don't have to cross you don't have to cross a state border in order to violate interstate  that is anything but neutral in terms of affecting those who are residents those who are from out of state we're does it affect interstate commerce our recall of the evansville test has three prongs only one of which is discrimination we have not alleged discrimination you don't have to allege discrimination everyone who's using that user fee who's traveling up and down the highway is engaged in one way or another in inter state commerce the people who are providing the road paving the road who are policing the road who are moving moving goods through commerce across that road the all engaged in interstate commerce all of that's true on the local roads to restaurants and people living their lives within the state that doesn't make or interstate commerce a burden on interstate commerce from the particular to purposes and effects and so where is the effect on interstate commerce here a truck coming across the delaware line into new jersey and then up the turnpike the fuels up wages if you want perhaps in pennsylvania perhaps in delaware but if you will is up and burning fuel that he purchased on the floor of interstate commerce when he runs out he buys more fuel in pennsylvania and moves it on it and uses that fuel in ohio or indiana that's all interstate commerce member dollar fee what was it before increase ten years ago it might have been seven or eight hundred dollars that's for the heaviest right but that's before the that's before the and it went from seven hundred  through to the shippers and receivers that he works for get that long term it likely would in the long run it would not necessarily that's an interesting economic exercise that i've been through before and  commerce clause analysis with the possible exception of getting into the issue of the tax injunction act the issue is one of federal law and i think it would be fair to analog federal for commerce clause purposes the turnpike toll in the manner in which the pennsylvania general assembly and the turn by commission has imposed and directed that it be used you could analogize this to attack certainly in the evansville case the opinion of the court uses interchangeably the term per capita tax with the term user fee there's no real magic to calling it one dollar of the other  purposes of the commerce clause analysis nifty even if we look at the elements of the test and recognizing that the supreme court has been moving in a direction in which it has been telling us let's get away from formalism let's get away from trying to put labels on things let's apply the form of commerce clause in a manner consistent with what it was really intended to do but if we look at the evansville vand gh airport authority test and compare that to the complete auto test the only things that are really different in complete auto is the requirement of a nexus and the requirement a proportion of which comes up in a question of interstate taxation for obvious reasons otherwise the question of whether the for purposes of evansville whether the fee is excessive in relation to the benefits conferred is very similar to the requirement in a complete auto as explained in subsequent cases including commonwealth edison the tax is fairly related to the benefit provided by the by the  same now evolved meaning to encompass benefits is as broad as state wide projects for that there's that there's absolutely no reason why that shouldn't be the case in the sense that the  come forward with any policy based reason based upon dormant commerce clause policy as recognized by the united states supreme court with respect to why the evansville test should be viewed in such a rigid fashion ever struck down a mileage based toll and here we get into some reasons that relate to the question of is there or an effect on interstate commerce versus an effect on commerce generally if you think there's a point at which can we just say it seriously affect interstate traffic well let's look at the complaint in this case and the question was what is there in the record and of course this was decided on a motion to dismiss the only thing in the complain trucks pay over fifty percent of the tolls but there's no showing with respect to how much of this is involved in inter state travel versus travel from point to point within pennsylvania and why is that significant well in the schneider case the court upheld the fuel consumption tax or pointed to that as a tax that would be upheld because it was based on a apportionment based on mileage travel within the state that's similar to the analysis that was used in the american trucking associations versus michigan public service commission case that was not cited in the  decision in the north pole southern case which my friend cited twice judge stapleton's opinion for the court in that case says very directly unless you can show that there is some differential in treatment between people who are traveling from one state to another as people who are just traveling within a state you have an effect on commerce but not an effect on interstate co situation nor has it has there been an assessment see of doing so now the question of whether this court calls this a tax or just say it's like a tax on the complete auto test or is it a user fee what the court does is a matter of federal law for purposes of the commerce clause and for purposes of the tax injunction act would not have a bearing on what this  is or what this toward his under state law so this court would say it's a tax there's not going to be some response saying oh my goodness it's a tax and it was imposed by an entity that doesn't have taxing authority if this court w explain that it was doing so as a matter of federal law and present one of the tax injunction act the robinson face says that that is determined not by state law but as a matter of federal law under its state with let's assume that with the case that somehow an opinion was written that said it can be a tax for commerce clause purposes or at least analogize to a tax without necessarily being a tax for tax injunction act purposes under the tests that the courts applied for that purpose that's an government and acts forty four and eighty nine do not impose the turnpike tolls they are simply a direction from the general assembly to the turnpike commission of how much money the general assembly wants the turnpike commission to contribute for favor this not being a tax but the question of how it is being used yes this is being used for more general purposes not general revenue not general purposes of the state but transportation purposes purposes that are in effect will ladled to the turnpike because by making other roads in better condition in pennsylvania and there are other state wide roads and many means of getting across pennsylvania it eliminates some of the burden on the turnpike eliminates congestion makes the turnpike a better road for people who want to go across the state in addition by supporting mass transit is the is you crease restrict commerce which is why we have a tough time understanding how a federal court could say that a use of money for purposes that would benefit interstate commerce nevertheless could burden plaintiff of any effect on anybody but on interstate commerce as distinct from commerce in general they have conceded that there's no discrimination they don't allege discrimination and they haven't shown portion and the court pulled it but when it came to the flat tax one of the things that the court did in shiner was it seemed to resurrect the idea from judge frankfurters dissent in greyhound that if you have a privilege that is less likely to be used by those who are traveling through the state that the that privilege is less valuable and you're charging the boundaries as a neutral factor in economic decision making and that's a quote there is no problem for purposes of the commerce clause and again it was dealing with the discussion there of the fuel consumption tax but it was contrasting it with the flat tax is the flat tax is in those cases definitely involved a differential in treatment of interstate purchases in trust date commerce because it was a protectionist measure people who had their trucks registered pennsylvania got a discount versus the imposition of the actual tax and the other tax which the court's opinion takes great pains to shout resulted in the imposition of a greater that in effect was declaring war on vehicles from other states and that's the type of thing that the commerce clause in the dorm and commerce clause were intended to prevent none of that is implicit in this state law and state law permit that to be done in such a way i'm not sure that would be the case and council dania but the another limiting principle would be of course congress sometimes remedies in the commerce clause area have to be under article one and not under article three and i think that if things were getting carried away congress could speak that in fact the congress has spoken here i don't want to intrude on mr  under article one section eight of the constitution how we get into this implicit doctrine involving a negative effect of the commerce clause under those circumstances is hard to fathom but beyond that that is a limiting principle another limiting principle might be again if somebody could show if there are in fact it is some undue burden being imposed on interstate commerce that there is a differential in circumspection and where particularly where there's no discriminatory effect being shown let alone any actual discrimination and in the american trucking association case that your hon the court said expressively quote the statute applies even handedly to all carriers that make the mystic journeys it does not reflect an effort to tax activity that takes place in whole or in part outside the state nothing in our case law suggests that such a neutral locally focused fee or tax is inconsistent with the dormant commerce clause that is this case fee and tax interchangeably but what was left of evansville is what probably was always there in evansville it was a test of validity it was not a limitation on a state's power to exercise its full so functions on matters that were of tradition state concerned like the maintenance of highways and total roads are still with you if you could explain to when you say to test what does that mean as well as it relates to what there's nothing in that opinion that says or in any of the subsequent cases with the exception of perhaps some authority in the nd circuit bridgeport case that is frankly inconsistent with this  threshold it's a safety net if you meet these criteria there's no point in analyzing further but there's nothing that says that you have to satisfy all four of these criteria to have a valid state act do you if you satisfy the evansville criteria i will we do satisfy the evansville criteria because the benefit prong of that test which is the only thing that's been argued here the benefit prong of that test has to be read  benefits have to be decided in a broad fashion and wall like is reflective of that as well although you're probably just what evansville stands for you wouldn't it wouldn't be the case that that fair funds have to be so limited in their purpose and why that's a valid purpose under the dormant commerce clause to resist to so restrict the state in the use of its funds what is it about the dormant commerce clause that would prohibit a state from using turnpike tolls as a means of general revenue if they're applied across the board in a non discriminatory fashion i think that the appellant there's a reading too much into the evansville case when it argues that if fact and they cited mr rangel who versus buckley which is a pennsylvania case that the sting wishes between license fees and revenue for purposes of local taxation i mean here we're talking about what is it the pennsylvania general assembly has authorized now what the turnpike commission has done is authorized by the general assembly but let's look at mr angelo when in fact the appellants are doing in their use of the evansville criteria is to take pennsylvania's definition of a license fee and convert it into one of constitutional magnitude and i think again that is just heading right into the contrary winds from the but i think that even if this court were to hold that evansville has as narrow and frankly artificial a reading as there is the plaintiffs want to give it in this case you still have to get around the question of the differential in treatment between interstate and intrusted commerce in order to get to that part of the analysis the commerce clause the dorman commerce clause isn't even implicated by a mileage based tax that is applied to everybody based on their travel solely within the commonwealth or indeed it would their view if their view were the following everybody pays the same amount and from their point of view paid too much but the only ones who benefit from how those funds are used are people in pennsylvania is that and does it benefit those who are only a passing through is that enough to violate the dormant commerce clause it would be hard to say that the only ones who benefit are people in pennsylvania given that the money that the state provides and i think you to look at again the benefits from the state in general they provide that to serve a system wide look and how even those projects maybe hundreds of miles away benefit congestion better roads perhaps because not so many people are using them that's right the maintenance of the police force the enforcement of laws of various sorts the provision of other resources and money that the commonwealth of pennsylvania doesn't have to use from other sources because it's using it from the money generated from the turnpike and the out of staters that well there are benefit in different ways but there's a but there is a lot of overlap this time and what's being challenged is used for transportation projects the usual can they use it for other purposes is not really before the court but i guess the question would be what if it were before the court would there be any problem there and i think you have to look at the circumstances you have to look at how it's being applied and again is there any difference in treatment of interstate versus intrusted commerce that might be a different case it might require different allegations from the allegations that are made in this complaint but i think that that's not an issue that need concern the cord this time i thought before you were saying that the revenue from the turnpike is used to improve roads near interstate and law enforcement which is necessary for the turnpike but there they are being used for other road improvement projects that only many congestion on the turnpike in provide alternative means of traversing the state and that would include for people involved in interstate commerce as well as an counsel noted i will be addressing to the extent the court has questions the congressional authorization issue that you've already discussed somewhat with mr cohen and if he questions the right to travel issue starting with the congressional authorization the one thing i will agree with mr cohen on is that i would urge the court to look at its precedent in zero billy and try em group because i think those cases do make clear how different the statutes in those cases are from the statute here and i and i know the court is very familiar with the statute because in the question of mr cullen you were quoting that statute in those other cases that he invoked in that we also rely on in our breeze in those cases there was a very general authorization so in in the really you had very general authorization proceeds to manage coastal areas in trying group you had very general authorization for states to manage apprenticeship apprenticeship programs in both cases the states enact laws that were protectionist that discriminate in favor of in state entities in state companies and this court held not surprisingly that that general authorization to manage the coastal area to manage apprenticeship quite a ship programs did not was not authorization from statute specifically says not the federal funds may be used for x y and z but total revenues total revenues may be used for operation maintenance debt service and to the extent that those are all being addressed other transportation projects authorized by title twenty three council let's say that that we view that as sufficient authorization under the language of the statute is new conditional authorization conditional on annual certifications and you that the secretary has the authority to essentially require a state to stop collecting tolls if isaak complying so the secretary look at those if that was not being complied with if if the turnpike commission was not making those the  uthorisation right by the public are ready to use these and that's directed at the public authority but the if language that follows per conditional certifications is not qualifying that authorization it's only  comply with that the secretary may do this the secretary made order the state to stop collecting tolls until it starts complying with that technical requirement that requirement that you check off the box and tell him in before the court the the i see the the statute itself addresses exactly what the court is going talking about all morning the the name itself makes that clear as does the policy of the statutes in intermodal transportation statu it governs it encourages it provide support for many moons of transportation specifically mentions the things that we're talking about here public transit buses planes ports and so forth that's the purpose of the statute so congress in this statu for something other than the terms by congress is regulated so that there were commerce clause it really has no more force so if the turnpike commission is not complying with congress's regulations with congress a statute that regulates that commerce that's not a dormant commerce clause issue the statutory violation there can only be enforced by the secretary of transportation the analytical frame for a case like this if congress has spoken in an area go check it out st and it's congress  many of the congressional authorization cases the opposition is much more general is still as i said states can manage the coastal areas states can manage apprenticeships and so it's not clear the congress is actually regulating the actual interstate commerce that's an issue in those cases which all of the cases the bowl party we're talking about protectionist state measures discriminatory measures here you have sort of this confluence where perhaps it would have made more sense to start with a congressional authorization because you have authorization that addresses precisely you know almost what plaintiffs are alleging is the problem and nd you don't have any discrimination so basically what the state is is accused of doing is precisely what other two programs those other two programs the air poor and the train there are multilevel trust fund fees that are collected from other sources and there's no allegation that whole monies were used for these women in these other two programs  because it's not clear enough from the complaint that those are the only possible two there's no other ones that are listed in the complaint that possibly are not covered by title twenty three it's possible as well if we have more information but we accept for present purposes that the so that's number one and number two is it's also the fact that the source is the license fees driver license fees registration fees and there's no dispute about this and this is in the record in the trial court relied on the total amounts for those far exceed the amounts that the state is spent on those two items and so if you give the exact numbers but for one of them i think it's like they've collected seven hundred and eighty million in fees and those programs are funded with you know five hundred thousand and eight one million dollars so there's no way to say that the turnpike fees the t tolls that they're objecting to went to those two dollars programs you could show that could accord on a motion to dismiss on this motion to dismiss be able to use the congressional authorization avenue just on the pleader would it need more information to be able to conclude that they were authorized or or if not authorized now funded by the tolls could a judge make that decision on pleadings here i think with the addition again and there was no objection to this by plaintiffs in the trial court relied on and i think based on this court's precedents with the addition of the budgeting information that we included in our motion to dismiss and i think is consistent with this court's precedents as to what can be considered on a motion to dismiss so i think  addition i think that that information the information about the other fees providing the revenue for those two items that's not in the complaint but we put that information as part of our motion to dismiss the trial court the point is never objected to it authorized by congress or through what i gather you're telling me what part of the record because they are publicly available documents and therefore subject to route twenty six to determine whether they were budgeted in such a way that they didn't used all money and the district court can make that decision i think making the latter argument and i think i think it would be undisputed i don't think the decided the only conclusion can be that there's no way the punters can show that the money that they claim is excessive is more than out but how would we be able to do the part of the budget without saying but i will say it anyway is that you don't have to go there for all the reasons i think mr buyer made is to as to why there's not a dormant commerce clause problem so you can affirm without even getting to the congressional authorization if you're going to get  the congressional authorization issue out whether because you see that is a different vehicle for for the trial for or is an additional basis to from the trial court if you're going to do that again i don't think there's been any challenge that if you look at the pleadings in the trial court the motion to in fact a constitutional violation i don't know that you're required to do so i mean again you know from my perspective there is no constitutional violations or starting as the district court did with the dollar commerce clause analysis and concluded that out that the court does not need to ally in the constitution to straight down a state statute there's no constitutional avoidance issue but i will i readily acknowledge that if you you agree with us that and again i think the statute is clear that there is congressional authorization here that is a simpler way without getting into the nuances of a constitutional analysis in the normal commerce clause that the court can reach the same result that this report reached that we obviously believe is the correct result but there is no violation of the constitution here that would make it all the more important given what the district court describes as a concession from the defendants that there was not annual certifications whether that authorization here is conditional and if we look at and the st four are unconditional and five which is what you are relying on here starts with this preface if the public authority certifies annually that the top of cillit is being adequately maintained how is that not conditional authorization at least for the use of these funds for any other purpose for which federal funds may be obligated by a state under this title and i apologize  of course the whole section three is titled limitations on use of revenues well whatever you label it the mechanism for addressing a failure to comply with with the limitations whether it's the specific one your honour's mentioning subsection five whether it's using it for educational purposes or something else rather than title twenty three purposes the where many isn't subsection c and i think again you're already past the point where you won't rest on the briefs on the right to travel issue i'd like to make a comment or two and then move into the other issue but there's no question that if you read the wallach opinion they found a appeals to decide when one of our opinions has been overruled overridden by implication his what the supreme court said we affirm that if a precedent of this court has direct application in a case evansville yet appears to rest on reasons rejected in some of the line of decisions saying the court of appeal should follow the case which directly controls evansville leaving to this court the parag of overruling its own decisions that's what the supreme court has instructed us and us versus extreme associates this circuit says we steadfastly follow that principle so the the district court here the ohio district court without analysis from may follow had no authority  conclude that sainz imply a duly overruled evansville and that the controlling opinion in wallach on the right to travel is of no value here we should prevail slam dunk on the constitutional right to travel in the impairment of bath under the under the standard of evansville and we walk through if you look at our statement of facts and all of the facts there is no way that they can satisfy the evansville standard at three hundred percent of the cost of maintaining the turn in the benefits involved what what what they said is you apply the evans for bill test and while you have a right to travel differently and use different rou you have a constitutional right that is impaired ones evansville once the evansville standard rule against you that's what the supreme court said nevins how they applied it to the right to travel and as far as the long term vitality of the evansville stand it remember of course that it was it was reaffirmed in northwest airlines where the court said the parties have agreed to use evansville as a standard of fairness this gets to your question just because you satisfy evans doesn't mean that that or just if you don't satisfy evidence that that it's automatically unconstitutional if in northwest airlines they conclude that evansville is a standard defense and you don't pass evansville being what we call unfair that would be a burden a burden on interstate commerce which brings us to another issue if you are using an instrumentality of commerce you are engaged in interstate co i think the concern was how is it burdened and we've gone through your position i think the question was interstate intrastate and it doesn't make a difference to the case that calls to mind is is  disputed that any of the particular expenditures fall within title twenty three we have not disputed that i've looked at that some here and they do fall within that which brings us to the congressional authorization question of course if you look at twenty three dollars u s code one hundred and twenty nine dollars which we will all looked at there are two parts to our congressional authorization and the question you have to ask after looking at the standards you can offer southern and triangle is could congress has had contemplated what the pennsylvania legislature was go to the problem the st is could they have contemplated that the tolls would double and triple over ten years was that within the contemplation of congress and there is plenty of authority that when when congress and that did this particular provision they were entitled to sume to assume that tolls would be collected in a constitutionally appropriate manner collected and imposed some multiple of the ankle cost of providing the facility or some multiple of the benefits incurred that is not constitutionally appropriate but you're asking assume for what you think congress could or could not have expected despite the plain language of the statute i think i said this you earlier maybe you have a survey think it was you that you know congress was looking to have a substitute pay for various things it talked about funds that had it otherwise been obligated by the by the feds the feds are just as happy to have the state pay for it so we could we could say in fact we congress was blessing revenue raising efforts in whatever way they needed to do it so that the federal government would have to pay for those important projects you're insight into what congress ready contemplating his far more precise than anything i've ever seen well you're right there is the same we're not really well within the scene speculative area which is you want us to say congress could not have contemplated the toll increase the action doubling and tripling terror polls must be specifically contemplated what did congress do but they knew nothing about what was going to have been a number of years before the tolls are increased to go with that's right so they couldn't have contemplated that was not within the contemplation of congress so yes excess tolls at the end could be used for title twenty three dollars purposes but that's only one half of the equation congress for four hundred and fifty million dollars tell me where congress contemplated that out when they passed twenty three dollars us code they couldn't possibly have done that the standard for congressional authorization here is extremely nickels and dimes left over every year the could be used to title twenty three dollars projects that's the most that they could could have been contemplating but he specific programs to dublin purple the polls collect three hundred percent of the cost of