Whether state conduct constitutes proprietary 'market participation' exempt from the dormant Commerce Clause

QUESTIONS PRESENTED The dormant Commerce Clause authorizes judicial intervention to address state discrimination to and undue burdens upon interstate commerce. The “market participant” exception shields state proprietary marketplace activity from the dormant Commerce Clause. The Seventh Circuit here applied the market participant exception after considering only whether Respondents were buying or selling access to the Indiana Toll Road. This analysis splits with the Second, Third, and Ninth Circuits which also consider whether a state actor is exercising governmental powers and authority unavailable to private marketplace participants, which precludes the application of the market participant exception. The Seventh Circuit also decided that state conduct that does not expressly discriminate in favor of in-state interests does not implicate the Commerce Clause, splitting with the First, Second, Fourth, Sixth, Ninth, and Eleventh Circuits which recognize that the Commerce Clause also guards against states imposing unreasonable burdens on interstate commerce even where the implementing law is expressly neutral. Issue 1 To determine whether state conduct constitutes proprietary “market participation” exempt from the dormant Commerce Clause, may a court look only to whether the state is simply buying or selling, as the Seventh Circuit did here, or must courts examine ii QUESTIONS PRESENTED—Continued whether the state is also exercising exclusively governmental authority or power, as is done by the Second, Third, and Ninth Circuits? Issue 2 Does the operation and tolling of a publicly-controlled interstate highway constitute proprietary “market participation” shielded from scrutiny under the dormant Commerce Clause as held by the Seventh Circuit here, or does such control over a channel of interstate commerce constitute governmental activity subject to Commerce Clause scrutiny as held by the Second and Ninth Circuits? Issue 3 Does the dormant Commerce Clause limit only discriminatory state conduct, as held by the Seventh Circuit, or does it also apply to neutral state actions that result in burdens on interstate commerce, as held by the First, Second, Fourth, Sixth, Ninth, and Eleventh Circuits?