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.
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.”