american trucking association versus new york state thruway authority at though tolls that are collected on the freeway for purposes that are unrelated to the thruway unless congress has specifically set aside that commerce clause limitation my right i just want to make sure that i understand precisely what we're being asked to do that this appeal as it's developed is purely a matter of statutory construction to determine whether tend to all of the is sufficiently clear  not currently view should be for us that is if we were to decide for you that this statute does not exempt this from a commerce clause we presumably would send it back and say to the district court in view of this statute being here and all the other feelings over dormant recent one of this court which was supreme court just yesterday were v day before denied service or is vis a violation we know the district court originally a very long time ago said it was  violation but that isn't the force of it and in any event it said that we've out the benefit of whatever gravitational pull on dormant commerce clause which is a messy issue of the statute would have so that the constitutional issue is not before it's the issue is does this statute take you out of it so if we don't ever get to the other things is that right that that is absolutely right and now it as as you note the district court did some time ago issue upon our summary judgment for the plaintiffs in this case and if the case goes back down to the district court when the dismissal came with the parties were actually engaged in a class action certification issues the secretary of transportation would allow tolling to continue the continuance of tolls what would you have congress say in every case or what would you have us require congress to say in every case because you're making from this clause the notwithstanding  argument that congress needs to save more needs to refer to notwithstanding any other provision of any law and yet in the second sentence it specifically refers to this tolling system well up and be your argument is an argument of context not of text i'm not saying context may not be relevant but in terms of what the statute that text the text is mighty clear it's speak specifically to visit now you're asking us to say but the context of the statute when it was passed and what it was doing about polling is such  get as being that and that may be on or given it's very hard for me given that we have cases that statutes exempting private commerce clause don't need to mention the commerce clause if that weren't so you could say the need to mention well if we have cases we say we don't need to mention i don't know what the statute could have said more you can argue context but i don't see how you can argue tax well i guess i would disagree with that enactment and so continuance of tolls doesn't have independent meaning it has to take its meaning from the situation in which it was after so for the continuance of tolls without repayment of federal funds so that that's that's correct and so the tolls that were involving in excess tolls and the uses that can be made of those tolls there are two ways of looking at that statute that language when it refers to excess toll collections the way we look at it at that at the standard that applied the commerce clause to her that applies is not a precise standard it requires only a rough correlation between in the amount of tolls collected and the uses that are made by the top pair and therefore necessarily there will inevitably be excess toke  lections even when one is complying with normal commerce clause standard and we think congress is saying in those situations these excess tolls most be used in a particular way the state's position the jewish position is no no when congress said excess tolls it was specifically  authorizing the the state to intentionally collect excess tolls in unlimited amounts we think if that's what congress had in mind it would have used very different language it waiving the commerce clause limitation is an extraordinary thing that supreme court has found perhaps only half a dozen times in the last century that that congressman to do that you would think of congress meant to do that it would have been off the affirmative what would you let's go back to a low you has said what would you as a matter it please the court andrew amun for the through a authority defendants the district court rightly dismissed the plaintiff's dormant commerce claims because the dormant commerce principles operate only where congress has not acted and here it has state here could have imposed its whole instead of nine to fourteen percent of one hundred percent they would have been required under the terms of the statute to provide for roadway maintenance and operations first so the amount that they were permitted to spend on the canals was the amount that they were collecting that exceeded that and under the exact same tolls which the through authority was collecting before this statute and continue to collect after the statute until two thousand  approximately fourteen percent of what the thruway authority was collecting when the statute was enacted was going to debt service and congress knew that the debt would eventually be retired and that when that happened  tolls were two percent margin exactly would generate excess revenue that congress and if the debt service had been fifty percent had been going to debt service with this language that we have before us have minted the through with already to use the entirety of the fifty percent after its debt was paid off to use that for the can now yes ok so any is necessary to maintain the canals that doesn't mean that you're exempt from the dom or commerce clause for everything else in the world but as far as canals are concerned we're telling you that you can use it now they may have known how much was being better so on but as far as views canals are concerned you are exempt from the yes that's exactly what congress said when it said you can continue to collect your tolls and you can use them for these specified purposes and that's not a crazy thing at all for congress to have done it was into it was creating a new massive transportation reform that wanted to encourage development of interconnected alternative modes of transportation opposing counsel not so much before us here but in view brief suggests that the context of this a language was was a context that said that it was in the direction of increasing the amount of allowing tolls to be done in an miria were previously tools who  not allowed at all and that this wasn't meant to exam for of a commerce clause but simply to allow you to collect calls now that's a context or given saying that's how you should read his language but what what is your answer to vent our answer is that the context actually far from helping my friend supports the through authorities position they cite in their reply brief senate report number one zero two seventy one page twenty six that senate report address is line only language that eventually became section ten twelve of ice tea but also section ten twelve a of ice tea which is the more general provision and congress there are said that after death is retired tolls may be continued this is a quote from the report tolls may be continued for use on any transportation project eligible under title twenty three unquote the house report that included language that accompanied the bill that eventually became ice t that's house report number one hundred two one seventy one says at page twenty five and page eighty that as to the new toll highways it was authorizing that toll revenues would be required to be used first to pay off debt from the project being funded and to operate and maintain the facility during the period of repayment and would provide a reasonable rate of return on capital invested by private parties after the period of repayment the state could use tolls both to operate and maintain the facility and to to fund other transportation projects within the state unquote so your say it to be extent that  to context then that opens fings up to legislative history and if you look at the legislative history rather than just the history the legislative history cuts your way and that you didn't so if you go to legislative history you can also start asking what senator moynihan said who is quite explicit about what he said you know that's legislative history and we worry about that but once you get out from ticks to doing other figs why not look at that as well as a yes our answer is that the text is clear it's quite clear as multiple of your honor's have points in our direction now can one when one is talking about explicitly exempting from the commerce clause look beyond text i believe there are some cases w england power new england power white versus massachusetts council of construction employers so all of the the very question yes i should these part of my question is one why should it be the rule given how extraordinarily rare it is that congress will legislate in this way to ask the congress the more express that is that in addition to a reference to the statutory limitations it either more broadly says notwithstanding any provision of federal law or even morse expressly says notwithstanding any commerce clause issues  a couple of reasons one your honor as judge calibration has noted there is case law including supreme court case law that says that congress does not have to say in terms whether in the text or the legislative history we are commerce clause limitations what has to be clear is that congress authorized the activity that would otherwise be governed by the dormant commerce clause and that makes sense because i agree with that that right but here we have  a clause that your friend has pointed us to that just refers to the statutory limitations in the first sentence yes but the second sentence speaks directly to the dorman commerce issue that is presented here which is how you use the tolls that you collect and here congress spoke directly to that issue and it didn't say you can use those tolls for anything it said you can use the tolls for specified purposes which include specifically the canals in addition we didn't this isn't self executing language new york after this language was passed duly went to the federal annual audit compliance provision on page one hundred sixty five of the joint appendix that you know pursuant to which the through authority has made available audit information every year to the federal highway administration it's never complained it's never said you gave us our money back let me ask you it may sound a bit of a few radical questions but that's me the look violations of a dormant commerce clause are never not not anything that is very easy i mean you know it's easy if you're putting into the tariff or something of that sort but there are any number of things which states do that may or may not violate the commerce clause and a question of tolls and how much and vet is one of those feelings i mean you can do something and you can't do something else why is a general matter would it not be better to say this statute becomes part of a question of whether the dormant commerce clause has been violated and that we should say not an exemption which after all leaves you completely free that this becomes part of what the district court should consider in deciding whether the particular system that new york has set up is discriminatory existence of a statute why wouldn't that be a better way of handling it the case law is clear your honor and that where congress authorizes an activity when it is exercising its commerce power and there is perhaps no more classic example of congress affirmatively authorizing its commerce power then in your rants or is that might be congress who are less clear but hear of it were clear enough here they were clear enough and congress does not need to say as an aside when it legislates under the commerce power and by the way we are removing the limits  that would otherwise apply under the dahmer dormant commerce clause if we weren't legislating when we are legislating and i would finally just say one last thought on that point this isn't like congress was acting under section five of the fourteenth amendment where there had to be a violation and they had to act in a way that was proportion to the violation that they found this is congress legislating to encourage the movement of tolls on and off different highway systems  whatever virtually whatever it wants to do in this area that is that is correct and what it did here was what the through a authority then proceeded to implement thank you just a couple of very quick points we've been discussing text and context and we think that both support us here i'll just i'll turn to the text first the spring court has said in cases like granholm worse is held that if the plausibly be read to preserve commerce clause imitations it must be read that way you know the tie goes to the taxpayer not to the state because if it can be read both ways necessarily it's not an ambiguous the congressional intent is not absolutely clear as it must be to displace there are two stat two sentences of the ice t legislation that we're talking about the first says we are lifting statutory limitations and as and structurally or as as you pointed out does not say anything at all about the constitution you would think you h completely as it supreme court said absolutely unambiguous that congress was contemplating that action for it otherwise it was affirmatively barred by the state has been intending to permit them just as an i think as a matter of ordinary statutory construction if congress could have lifted both explicitly it listed lifted one express lane didn't mention the other you would think it my question and that is unless you were say that they must mention the commerce then what what is it i mean what makes something clear you can always in every case then say oh but they could have said this or vet but unless they are required passed a law that said new york may discriminate against citizens of new jersey in the imposition of tax rate and didn't mention the commerce clause i think we would agree that that was authorizing discrimination otherwise would violate the commerce clause because it's expressly stating something is allowed to do it and it was not allowed to do it before the comma i mean you know they say discriminate you're talking discriminate in what way obviously under the commerce does that mean that in the rates of taxation for example i mean that that would be sufficient i would say but that's not what congress did here there are again two sentences here one says may continue to the content continuance of tolls that could be could be consistent with commerce clause standards or not and because previously it had had to comply with the commerce clause i think the logical reading of that is congress intended to continue that the second sentence of the ice t legislation says excess tolls shall be available for these purposes and as i say there are two ways in which congress could have had in mind  way which is applying the ordinary commerce clause standard inevitably there are excess tolls that are collected and i think congress was saying when you collect these excess tolls here's what you can use them for the state says no no when congress said excess tolls it was affirmatively authoriz to the state to collect excess tolls in any amount as i think my friend knowledge is any amount using the toll collection mechanism of the highway as a means of raising general state revenues that was a dramatic departure from what the federal polling policy had it would be in the range of one hundred million dollars something like that but we have not really gotten into that at this point and you think that's in your client's your client think that this is in their interest that the that the state not facility states may impose tolls user fees that's perp at perfectly fine what we are saying is that erie canal which is not really a transportation facility in the real santa fe not used to interstate commerce that it's what made america is is the point of a dormant commerce clause to say that states may not do feelings that individual industries and so on don't like is it a kind of locked in or ok or is it to keep terrorists or commerce from being injured because if it is the latter  we have to look at what congress is say and say this does not amount to a kind of tariff discrimination which blocks a national economy which is what the garment commerce  i would have thought was very to do not particularly to protect individual people the commerce clause is not there to protect individual people of course individual people if they're hurt by it can bring the suit but what's the object of it to make a national economy not to protect truckers or boxers or teachers or anybody else i agree with you on that your honor but i think that the nature of this kind of l is precisely what the commerce clause was designed for and as the supreme court has articulated because allowing this kind of fee to be imposed lets a state export its tax burden to the residents of other states and that's exactly what new york is trying to do here it is is trying to pay for a local facility and the question is did congress say that to this extent it can do that is a question that's request under its commerce clause it could do it and you're saying it should have been clearer if it intended to do to allow this that's exactly right i mean that the tie goes to the taxpayer because if the and just one final point ron the reason the supreme court articulated this very strict standard is that because this kind of part his exporting the tax burden and is impeding interstate commerce it is absolutely essential that representatives of other states know that they are there that they are authorizing this kind of of commerce impeding activity and unless the legislation in its it either in its face weren't clearly in its context is sufficiently clear they will not know that and therefore the state gets to explore to that is if that is so that this is the done does it matter that senators like more on the other hand are saying hey this is what we're doing so that the the senators from other states know over to what is going on that is you know your argument now is one that he was a senior democrat on the committee at the time when the democrats control the senate had been chairman of the committee before he became chairman of finance and there is some if you're doing legislative history at all there's some weight to the views of the manager of legislation or the and was he actually the manager he may have been the manager this question referred to the portion of the ice tea that refers to the maryland component of this the fourth narrow tunnel and he indicated that new york in effect new york would would have the same benefit right and all and what he said there was that said that they include thought it would be a good thing if toll revenues could be moved on and off particular transportation systems so that the state could maximize its transportation policy i think that could be entirely con and that could be entirely consistent going to convert close to and so long as it's an integrated transportation network then users of one road are going to benefit from event from improvements are made to other roads so it's not at all clear from that statement that someone who is thinking about departures from the norm and commerce revenue there was made by the director through a hoost didn't say anything about excess tolls he was saying if you want to be able to continue tolling after the repayment of the debt as a matter of changing the federal statutory repayment policy thanks clarify that the state canal system does continue to be a commercial instrumentality of interstate and international freight shipping tens of thousands of tons of cargo a year plus its waters just purely for entertainment it is not purely for entertainment the history also given  my my adversaries discussion right sorry he is my friend as justice roberts has admonished us to address each other the legislative ends up being in section ten twelve he says any transportation facility that is under the jurisdiction of the maryland authority and the new york state thruway authority that is clear actually arguing i'm sorry i understood him to be saying that when senator moynihan spoke he was in visioning movement of toll money off of the highway that generated it in a way that would somehow comply with that would somehow still benefit the specific users of that that highway that generated the revenue and the language there's nothing in what he in senator moynihan language that suggests that the language that ultimately became ice t ten twelve refutes that in addition sen seems spoke after the conference committee had finally in which senator moynihan was again a major player finally hashed out ten twelve what became ten twelve and ten twelve easy senator simms speaking this is it one thirty seven congressional record three four nine three zero zero that there a congress is establishing quote a toll facilities program in which federal funding will be allowed for expansion of toll highways bridges or tunnels but the revenue generated might be considered for other transportation prove months in the years following the adoption of ice tea not only in new york but a number of states began using funds you know toll revenues for other specified purposes that were not connected directly to the system that generated them the pennsylvania turnpike commission for example supplies or pays approximately four hundred fifty million dollars a year for mass transit in pennsylvania to things that certain industries don't like on june twelfth one nine hundred ninety one along with senator moynihan lana batts a representative of the american trucking associations appeared on the macneil lehrer news hour and was asked point blank what from your perspective would be the downside of the morning hand bill becoming law that was the bill that senator moynihan had recently introduced that included at least at that point the language that eventually became ten twelve a of ice t and ms batts said in response quote or her response included these two statements quote there is far too much reliance paid on tolls and new toll facilities unquote and quote the highway user should not be viewed as a piggy bank for all of transportation unquote so american trucking associations was aware of what was going on it complained about it congress passed this law anyway thank you very much it's a big bank we are permitted to use tolls in a way that we would not otherwise have been pretty metaphor ok thank you very much we reserve the solution and it would be helpful i think of counsel after to make arrangements for the preparation of a transcript of the argument which i think