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Should Minnesota sue Wisconsin over high-speed rail? Probably not yet

Let’s pretend it’s 1956. Congress has just passed the Interstate Highway Act, a transformation that will bring superhighways to every corner of the nation. Wisconsin, however, is proud of its immaculate system of gravel roads. It gazes upon the new superhighways with suspicion. The governor says “no thanks” to the federal share of Interstate money, opting to stay with gravel. The effect is to isolate Minnesota by cutting off a valuable new commerce link between Minneapolis-St. Paul and Chicago.

Question: Does Minnesota have recourse? Has Wisconsin placed an undue burden on its neighbor’s right to interstate commerce? Has it unfairly used its geography to impede another state’s growth and prosperity?

Our imaginary tale may actually have come true 54 years later, although the details are a bit different. The issue is high-speed rail and whether there’s potential for Minnesota to seek legal redress for a decision by Wisconsin’s governor-elect not to pursue a new Twin Cities-Chicago passenger rail corridor.

For years, Wisconsin had been working diligently on planning for the project, but last month’s election of Republican Scott Walker changed everything. Hearing Walker’s rejection, the Obama administration took back $1.2 billion it had offered to Wisconsin (and Ohio, which also rejected a Chicago connection) and gave it to other states that wanted the money. Minnesota, needing Wisconsin as a geographical partner, was left high and dry.

So, does Minnesota have a case? Probably not.

Commerce Clause on the brain
I chatted with a half-dozen lawyers this week, both in public agencies and private firms. All were intrigued by the question, especially in light of controversy swirling around Obamacare’s roots in the Commerce Clause. The Constitution devotes just 16 words to the clause, which declares that Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and among the Indian tribes.”

That’s it. But those few words have generated millions of other words that have built a huge body of law concerning Congress’ authority to regulate commerce among the states. Scholars detect several eras of interpretation that shift with the political winds, the latest being a conservative tilt toward the rights of states and individuals.


Click to view a map of the Midwest Regional Rail System

Rulings in 1995 and 2000 (U.S. v. Lopez and U.S. v. Morrison), for example, limited Congress’ authority to activities that substantially affect interstate commerce. But inactivity, such as Wisconsin’s non-participation in high-speed rail, seems not to be in Congress’ purview, which may leave Minnesota out of luck. In other words, since Congress didn’t compel Wisconsin to take the money, its decision not to do something can’t have a damaging impact on Minnesota.

A hard case to make
There are other complicating points. One is the burden of proving harm to Minnesota. In the early days of the Interstate Highway System it wasn’t yet clear that the federal/state investment would leverage many billions of dollars in new wealth and change the face of modern commerce. At this early point, the economic impact of high-speed rail is unknown.

Then there’s the predicament over the “ownership” of the railroad property involved in high-speed rail. Unlike Interstate highways, which are owned by governments, rail lines are generally owned by private companies and leased by governments for passenger service. So, any high-speed rail project that extends beyond a state’s boundaries depends a great deal on interstate collaboration, which, in this case, has disintegrated.

“Off the top of my head, it doesn’t sound like a very promising legal argument,” said Brad Karkkainen, a law professor at the University of Minnesota. The Commerce Clause “generally prohibits state regulation that discriminates against interstate commerce,” he said. “I can’t think of a case where the courts have said that a state’s declining to participate in a capital investment project — especially one where, as here, states voluntarily submit competitive bids for federal funding — runs afoul of the Dormant Commerce Clause. I just think that’s a non-starter.”

“I’m not sure I’d use the Commerce Clause,” said a lawyer from prominent downtown Minneapolis firm told me. “Maybe it’s a nuisance issue,” she said, recalling that states commonly sued neighboring states over water rights. “My gut tells me that this would be an extremely hard case,” she said.

Dan Krom, who heads the passenger rail initiative at MnDOT, described Wisconsin’s stance as unfortunate, but said he wouldn’t consider deploying the Commerce Clause at this point. “I wouldn’t recommend it to MnDOT or to the Dayton administration,” he said. Indeed, he praised the staff collaboration with Wisconsin in seeking a final route to Madison, whether it’s through Winona, Rochester or Eau Claire. “We’re moving ahead as if [the Walker decision] hadn’t happened,” he said.

Wisconsin in reverse
Up until November’s election, Wisconsin was far ahead of Minnesota on the high-speed project. The state already participates in a Milwaukee-Chicago commuter service (seven 90-minute roundtrips per weekday, including a stop at the Milwaukee airport). The federal money, part of the stimulus package, would have extended the line to Madison, with construction starting next year. By the time it was finished, the route of the final segment to the Twin Cities would have been decided.

The overall national vision is for fast, frequent rail travel connecting major cities from a half-dozen regional hubs. As in Europe and in the northeastern United States, trains would compete with planes and autos for middle-distance travel. Chicago would be at the center of a Midwestern hub with spokes radiating to Detroit, Cleveland, Indianapolis-Cincinnati, St. Louis-Kansas City and Milwaukee-Twin Cities. Existing freight tracks would be upgraded to handle trains at 110 mph. That would trim 2½ hours off the current eight-hour Chicago-Twin Cities run. Departing at 7 a.m. and arriving for lunch might make trains a true option for business travel.


Richard Harnish
Richard Harnish

Two counter arguments have emerged. One is that the cost of upgrading is too high. That’s Walker’s objection. The other is that the technology isn’t up to world standards of 150 to 187 mph. Those bullet-train speeds would place MSP and Chicago three hours apart, but again expense is the problem because exclusive right-of-way would be needed.

“Minneapolis-St. Paul should just press ahead,” said Richard Harnish, director of the Midwest High Speed Rail Association. He characterized the setback as temporary. “Rather than lamenting Wisconsin’s unfortunate decision you should set higher goals for faster speeds.”

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Comments (14)

  1. Submitted by Paul Scott on 12/16/2010 - 09:33 am.

    The rail money Wisconsin turned its nose up against is going to help connect Minneapolis and Rochester with high speed rail, which arguably would be more meaningful in terms of linking a growth economy than connecting the Twin Cities to Chicago, anyway, especially by way of Red Wing.

  2. Submitted by Tim Walker on 12/16/2010 - 09:56 am.

    Obamacare? Really?

    Is there another, less slanted word (or words) that could be used instead?

    P.S. Nice article. I’ll be following this saga with interest.

  3. Submitted by Justin Bigelow on 12/16/2010 - 10:15 am.

    Harnish and Scott (Paul, not Walker) are both right. Just as the economic downturn allowed communities to step back and determine reasonable/sustainable growth plans, Minnesota should take Wisconsin’s temporary withdrawal to take the lead on planning for its benefit by determining the best and fastest route within Minnesota en route to Chicago. That likely should include Rochester.

  4. Submitted by Willie Green on 12/16/2010 - 10:55 am.

    Rather than waste time on Walker and Wisconsin, Minnesota should explore other opportunities.

    An examination of the passenger rail network reveals two potential routes that would provide faster service to southern destinations by bypassing the Chicago hub. For instance, one could largely follow the Mississippi all the way to St. Louis, perhaps deviating slightly to include cities such as Rochester and/or Iowa City. Or perhaps a route going due south along I-35 to Dubuque & Kansas City is an alterntive.

    Within the coming decade or so, global depletion of traditional fossil fuel resources will render inefficient short-hop commuter airline service much less affordable than what we currently enjoy. Minnesota doesn’t have to be isolated just because Wisconsin doesn’t have the foresight to prepare for the future.

  5. Submitted by Richard Pecar on 12/16/2010 - 12:06 pm.

    Richard Harnish is spot-on…this set-back should be temporary and Minnesota should forge ahead and set goals for higher speeds.

    I long for the days of Eisenhower and Kennedy, the first brought us the interstate system and the second saw to it humans stepped on the surface of the moon! Why has America allowed its national vision to be degrade into the narrow views of myopic penny-pinching wannabe bean counters who call themselves political leaders?

    Eisenhower and Kennedy were leaders. Not the Bush or Pawlenty types.

    When will people wake up and realize money is nothing more than paper printed with images of dead presidents? Of which partion are we short? The paper? Or the ink? The stuff is controlled by a private banking cartel that has failed repeatedly for the last century to achieve its statutory purposes.

    Gee whiz, my golly…remember, we can join suits over carp in the river! I don’t see a big deal figuring out how to sue over implementing high-speed surface transportation system.

  6. Submitted by Ray Schoch on 12/16/2010 - 12:43 pm.

    A railfan (and traveler) in earlier years, I don’t know enough about current rail operations in terms of their technology and the degree of investment on the part of their owners to enable me to suggest alternative routes. Personally, since I have relatives living in Madison, I’d love to see a couple hours knocked off the dull drive between the two metro areas by high-speed rail, but my personal desires do not constitute a state need.

    I would take slight issue with one statement in the piece: “…since Congress didn’t compel Wisconsin to take the money, its decision not to do something can’t have a damaging impact on Minnesota.”

    I’d argue two things – and I’m not a lawyer, so this is strictly the view of an amateur. First, to my knowledge, Wisconsin didn’t decide to forego the federal funding. There was no statewide referendum on that question, and the decision seems to have been exclusively one made by Wisconsin’s Governor, who may or may not represent the views of the majority of Wisconsin’s residents on this particular issue.

    More to the point, the Governor’s decision to forego the federal funding obviously CAN, and perhaps WILL have a damaging impact on Minnesota. The operative question, my second point, is whether or not Minnesota has legal recourse in that circumstance. Like some of the lawyers interviewed, I’m a little skeptical of the applicability of the “commerce clause,” and that’s why I raise the question of recourse in the first place. If the commerce clause doesn’t truly apply, the potential harm to Minnesota hasn’t somehow vanished, so the issue to be determined by constitutional scholars and lawyers far more thoroughly schooled than I in these kinds of legal matters would seem to be: What legal remedies ARE available to Minnesota if we want to participate in the proposed high-speed rail network, and the Governor of Wisconsin is not just content with, but proud of, his state’s network of gravel roads?

  7. Submitted by Gerard Wenham on 12/16/2010 - 02:41 pm.

    Here’s a reasonable solution…

    Chicago to Rockford to Dubuque to Rochester to Minneapolis.

    And I am a Wisconsin native.

  8. Submitted by Hudson Leighton on 12/16/2010 - 07:19 pm.

    Minneapolis, Saint Paul, Rochester & Dubuque Electric Traction Company, Colonel Savage had that idea about 100 years ago.

    He made to to Northfield.

  9. Submitted by Paul Scott on 12/16/2010 - 10:00 pm.

    You know what’s funny? Dubuque to Rochester was the original stage coach line. Everything comes back to where it started.

  10. Submitted by TJ Jones on 12/17/2010 - 02:36 pm.

    One basic question – how much ridership are you really going to get with stops in Rockford and Dubuque? You simply will not get the business traveler with a route that is not direct. A boondoggle is what it will be

  11. Submitted by Glenn Mesaros on 12/19/2010 - 05:59 am.

    Republicans used to believe in economic development. Led by Civil War banker Jay Cooke, they build the Northern Pacific Railroad between Duluth and Seattle, with connections to Mpls/St. Paul over the Stone Arch bridge. In 1883, they celebrated its completion, as I wrote:

    The procession of the celebratory parade included 1500 teams of horses and 20,000 people, exceeding 20 miles in length.

    The NPRR had eschewed Chinese labor during its construction, unlike Harriman’s Union Pacific, and now the celebration featured a large Chinese and Japanese Arch entitled, “St. Paul greets China and Japan through the N.P.R.R.” Near the front of the parade procession, following Grand Marshall General Sanborn, a battalion of African-American infantry, the Twenty Fifth U.S., and well known for the proficiency and soldierly bearing.

    The Ancient Order of Hibernians, 200 strong, marched behind chief Marshall Col. M.J. O’Connor. A division representing France and American featured Washington and Lafayette, the Knights of St., Paul, Union Francaise, St. Jean Baptiste Socieity, Knights of Labor, St. Venzee, St. John, Bohemiam Turners, and St. Albert Societies.

    German Americans in the Fourth Parade division featured the St. Paul Temple commandery, No. 2 P.C., the German Society, Turner Society Druids, Sons of Hermann, Bucelbuergia, and featured 125 mounted butchers.

    The St. Paul Post Office marched with a large sign, “1846. Total Revenue, $3.43! Revenue 1883, $183,954.82.”

    The Pillsbury procession featured four horses pulling a huge sack of Pillsbury’s Best flour, entitled, “B Mill – Capacity 1,500 barrels a day”; a picture of primeval milling; a boy on a mule with a grist in a sack; a windmill entitled “Ye Ancient grist”; seven wagons labelled export for Ireland, Paris, Glasgow, Cork, Liverpool, Amsterdam, and “3,448 carloads exported in the last twelve months”. Following that an immense model of the Pillsbury A Mill, entitled “5,200 barrels a day, 500 barrels and hour, 2,000,000 barrels a year”. Model grain elevators proclaimed “70 houses in the city and on the Manitoba Ry, storage capacity 4,000,000 bushels”.

    In procession behind the Pillsbury delegation came all manner of bakers and their equipment, millstones, a bolting machine in operation, great loaves of bread, immense globes, a pyramid of stencil plates and dies, and finally 1000 mill workers, marching four abreast down the avenues. This entire division engendered the most hearty applause from the German dignitaries.

  12. Submitted by Rhonda Cham on 01/31/2011 - 08:30 am.

    The rest of America should not have to pay for a rail system that benefits a few states. States should foot the bill themselves.

    This is another bottomless pit of spending on the part of Democrats.
    It may create a few jobs and make Mr. Harnish and his buddies filty rich.
    But every penny you take from roads, planes, and the train systems we have now, will take a job from someone else.

    This is a NO WIN situation.

  13. Submitted by Terry Elliott on 02/26/2011 - 09:45 am.

    There is a very marginal economic case for high speed rail in the Northeast corridor of the US. And a far less compelling case for intra-Florida or intra-California routes, even under the most optimistic 50-year projections.

    But Chicago-Minneapolis? Come on. Not even close.

    Right solution, wrong route.

  14. Submitted by Gerard Wenham on 09/05/2011 - 10:52 am.

    Granted, a Chicago to Minneapolis route is perhaps not the highest national priority for high-speed rail, that would be probably the northeast corridor or a California corridor. But the interstate highway system seemed like a boondoggle to many in the 50’s. The fact is, unless we use them to GROW the pie, many investments would ultimately prove to be boondoggles.

    Those with foresight will notice that we are in an era where energy, especially for today’s forms of transportation, is likely to become increasingly scarce. Therefore, considering our long-term (next few centuries) needs, we need to gradually switch as much of our current transportation system as possible to a more efficient and fuel-flexible format. (High-speed) rail is one alternative that is very fuel-efficient, and can easily use flexible forms of energy (eg, electricity). We should be gradually positioning ourselves in this more efficient, more flexible direction if we hope to compete globally in coming centuries.

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