It is well understood that many charter and tour buses make
the nation's capital one of their common destinations. In 2003, the United
States Department of Transportation issued a District of Columbia Tour Bus
Management Initiative, which recognized the economic importance of such
vehicles, but noted associated problems as well, including air pollution, noise,
traffic congestion, traffic safety risks, parking shortages, and wear and tear
on roadways. The Initiative concluded that the District should adopt a permit
requirement for tour buses to address these problems.
The D.C. Code was then amended to include D.C. Code §
50-1501.02 (j) addressing charter buses specifically. The statute provided
three options for charter buses that would be operating on the District's
streets: (1) obtain District of Columbia registration, (2) register on an
apportioned basis, reflecting mileage driven in the District of Columbia, or
(3) obtain a trip permit, costing $50 and valid for a six-day period.
The Associations contend that such a set of choices
violates the U.S. Constitution, specifically the so-called "dormant Commerce
Clause" by discriminating against and unduly burdening interstate commerce.
The Court began by noting that the Supreme Court has
long held that the Commerce Clause, which gives Congress the power to
"regulate Commerce . . . among the several States," U.S. Const. art. I, § 8,
cl. 3, also contains a "further, negative command . . . [which] . . .
prevents a State from jeopardizing the welfare of the Nation as a whole by
placing burdens on the flow of commerce across its borders . . ." Am.
Trucking Ass'ns v. Mich. Pub. Serv. Comm'n, 545 U.S. 429, 433 (2005). The
Court also noted that the Supreme Court's jurisprudence in the area of the
dormant Commerce Clause can be difficult to harmonize.
Am. Bus Ass'n v. District of Columbia, at
*17.
The easiest case is one in which there is clearly
instate protectionism. "A state tax that favors in-state business over
out-of-state business for no other reason than the location of its business
is prohibited by the Commerce Clause." Am. Trucking
Ass'ns v. Scheiner, 483 U.S. 266, 269, 280 (1987). The Court
determined that there is no evidence of any protectionist or discriminatory
purpose, and in fact, the history behind the legislation recognized the
economic boon that tour buses represent.
The Associations also contend that the Supreme Court
has held any flat tax to secure entrance into a jurisdiction would deter
Commerce between the states. Scheiner, 483 U.S. at 284. The Court of Appeals
determined, however, that the three options available ensure that this is
not simply a tax on entry into the District of Columbia, and the two
registration options bear no relation to the number of times a charter bus
enters the District.
The Court also noted that each of the three options is
not to be considered in isolation from the others. While the Court noted
that a law requiring every charter bus to obtain District of Columbia
registration would likely not be permissible, the fact is that the statute
does provide options. Most notably the Court stated, "The fact that the
Associations' charter-operator members have fee-payment options, including
most significantly the (j)(2) option of apportioned registration (which the
Associations acknowledge passes muster under the dormant Commerce Clause),
completely undercuts their argument that section 50- 1501.02 (j)
discriminates against interstate operators or subjects them to fees that are
not fully apportioned." Am. Bus Ass'n v. District of
Columbia, at *25-26.
The Associations also contended that the statutory
structure conflicted with the International Registration Plan ("IRP"), an
interstate compact to which the District of Columbia is a signatory. The
Court found that the provisions also did not violate the IRP. Space
limitations prevent a detailed recounting, but the Court stated, "The IRP
contains no language that plainly prohibits a member jurisdiction from
offering charter buses the option of apportioned registration as one way of
satisfying the jurisdiction's mandatory program of vehicle registration or
fees." Am. Bus Ass'n v. District of Columbia,
at *32.
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