AMERICAN TRUCKING ASSOCIATIONS, INC., et al. v. MICHIGAN PUBLIC SERVICE COMMISSION et al.

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429 OCTOBER TERM, 2004
Syllabus
AMERICAN TRUCKING ASSOCIATIONS, INC., et al.
v. MICHIGAN PUBLIC SERVICE COMMISSION et al.
certiorari to the court of appeals of michigan
No. 03–1230. Argued April 26, 2005—Decided June 20, 2005
Petitioners, a trucking company engaged in both interstate and intrastate
hauling and a trucking association, asked Michigan courts to invalidate
the State’s flat $100 annual fee imposed on trucks engaged in intrastate
commercial hauling, see Mich. Comp. Laws Ann. § 478.2(1), claiming that
it discriminates against interstate carriers and imposes an unconstitu
tional burden on interstate trade because trucks carrying both inter
state and intrastate loads engage in less intrastate business than trucks
carrying only intrastate loads. The State Court of Claims rejected the
claim, holding that, because the fee is regulatory and intended for the
Michigan Motor Carrier Act’s administration, it is not amenable to ap
portionment; that it is an appropriate exercise of the State’s police
power; and that it does not implicate the Commerce Clause because it
falls only on intrastate commerce. The State Court of Appeals af
firmed, and the State Supreme Court declined review.
Held: Michigan’s fee does not violate the dormant Commerce Clause.
That Clause prevents a State from “jeopardizing the welfare of the Na
tion as a whole” by “plac[ing] burdens on the flow of commerce across
its borders that commerce wholly within those borders would not bear.”
Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U. S. 175, 180.
Applying this Court’s dormant Commerce Clause principles and prece
dents here, nothing in § 478.2(1) offends the Commerce Clause. The
flat fee is imposed only on intrastate transactions. It does not facially
discriminate against interstate or out-of-state activities or enterprises.
It applies evenhandedly to all carriers making domestic journeys and
does not reflect an effort to tax activity taking place outside of the State.
Nothing in this Court’s case law suggests that such a neutral, locally
focused fee or tax is inconsistent with the dormant Commerce Clause.
That is not surprising, since States impose numerous flat fees on local
business and service providers, e. g., insurers and auctioneers. The
Constitution neither displaces States’ authority to shelter their people
from health and safety menaces nor unduly curtails their power to lay
taxes to support state government. The record, moreover, shows no
special circumstances suggesting that Michigan’s fee operates as any
thing other than an unobjectionable exercise of the State’s police power.

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Syllabus
Neither does it show that the flat assessment unfairly discriminates
against interstate truckers. Because the costs the fee seeks to defray,
e. g., those of regulating vehicular size and weight, would seem more
likely to vary per truck or per carrier than per mile traveled, a per
truck, rather than a per-mile, assessment is likely fair. And petitioners
provide no details of their preferred alternative miles-traveled system
or point to evidence of its practicality. Nor is there any reason to infer
that the State’s lump-sum levy on purely local activity erects an imper
missible discriminatory roadblock. American Trucking Assns., Inc. v.
Scheiner, 483 U. S. 266, distinguished. As for petitioners’ “internal con
sistency” argument—that if every State did the same as Michigan, an
interstate trucker doing local business in multiple States would have to
pay a fee of several hundred or thousand dollars—any interstate firm
with local outlets normally expects to pay local fees uniformly assessed
on all those engaging in local business. Pp. 433–438.
255 Mich. App. 589, 662 N. W. 2d 784, affirmed.
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ.,
joined. Scalia, J., post, p. 439, and Thomas, J., post, p. 439, filed opinions
concurring in the judgment.
Robert Digges, Jr., argued the cause for petitioners. With
him on the briefs were Charles Rothfeld and Evan Tager.
Henry J. Boynton, Assistant Solicitor General of Michigan,
argued the cause for respondents. With him on the brief
were Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, and David A. Voges, Michael A. Nicker
son, Glenn R. White, and Emmanuel B. Odunlami, Assist
ant Attorneys General.
Malcolm L. Stewart argued the cause for the United
States as amicus curiae urging affirmance. With him on
the brief were Acting Solicitor General Clement, Assistant
Attorney General Keisler, Deputy Solicitor General Kneed
ler, Mark B. Stern, Sushma Soni, Jeffrey A. Rosen, Paul
M. Geier, and Dale C. Andrews.*
*Briefs of amici curiae urging reversal were filed for the Chamber of
Commerce of the United States of America by Christopher J. Wright and
Robin S. Conrad; for Deeco Services, Inc., dba Deeco Transportation, et al.

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Opinion of the Court
Justice Breyer delivered the opinion of the Court.
In this case, we consider whether a flat $100 fee that Michi
gan charges trucks engaging in intrastate commercial haul
ing violates the dormant Commerce Clause. We hold that
it does not.
I
A subsection of Michigan’s Motor Carrier Act imposes
upon each motor carrier “for the administration of this act,
an annual fee of $100.00 for each self-propelled motor vehicle
operated by or on behalf of the motor carrier.” Mich. Comp.
Laws Ann. § 478.2(1) (West 2002). The provision assesses
the fee upon, and only upon, vehicles that engage in intra
state commercial operations—that is, on trucks that under
take point-to-point hauls between Michigan cities. See
Westlake Transp., Inc. v. Michigan Pub. Serv. Comm’n, 255
Mich. App. 589, 592–594, 662 N. W. 2d 784, 789 (2003). Peti
tioners, USF Holland, Inc., a trucking company with trucks
that engage in both interstate and intrastate hauling, and
the American Trucking Associations, Inc. (ATA), asked the
Michigan courts to invalidate the provision. Both petition
by Robert E. McFarland; and for the Eagle Forum Education & Legal
Defense Fund by Douglas G. Smith.
Briefs of amici curiae urging affirmance were filed for the State of
Illinois et al. by Lisa Madigan, Attorney General of Illinois, Gary Feiner
man, Solicitor General, Nadine J. Wichern, Assistant Attorney General,
and Dan Schweitzer, and by the Attorneys General for their respective
States as follows: Troy King of Alabama, M. Jane Brady of Delaware,
Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Thomas J.
Miller of Iowa, G. Steven Rowe of Maine, Thomas F. Reilly of Massachu
setts, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana,
Brian Sandoval of Nevada, Kelly A. Ayotte of New Hampshire, Eliot
Spitzer of New York, Wayne Stenehjem of North Dakota, Jim Petro of
Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon,
Thomas W. Corbett, Jr., of Pennsylvania, Lawrence E. Long of South Da
kota, Mark L. Shurtleff of Utah, and Darrell V. McGraw, Jr., of West
Virginia; and for the National Conference of State Legislatures et al. by
Richard Ruda and James I. Crowley.

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ers told those courts that trucks that carry both interstate
and intrastate loads engage in intrastate business less than
trucks that confine their operations to the Great Lakes State.
Hence, because Michigan’s fee is flat, it discriminates against
interstate carriers and imposes an unconstitutional burden
upon interstate trade.
The Michigan Court of Claims rejected the carriers’ claim
for three reasons. First, the $100 fee “is regulatory and in
tended” for the Motor Carrier Act’s administration, which
includes “regulation of vehicular size and weight, insurance
requirements and safety standards.” App. to Pet. for Cert.
44a. Such a fee “is not amenable to a fee structure based
on apportionment by usage rates.” Ibid. Second, the fee
reflects a “legitimate expression of the [S]tate’s concern that
the welfare of its citizens be protected,” and hence an ap
propriate exercise of the State’s police power. Ibid. Third,
the fee does not implicate the Commerce Clause because
it falls only on intrastate, not interstate, commerce. Id.,
at 45a.
The Michigan Court of Appeals affirmed. It did not agree
that the intrastate nature of § 478.2(1) sheltered the fee from
Commerce Clause scrutiny. 255 Mich. App., at 617–619, 662
N. W. 2d, at 802. Nonetheless, the court rejected the truck
ers’ claim because the statute “regulates evenhandedly,” id.,
at 621, 662 N. W. 2d, at 804, and because the record lacked
any “evidence that any trucking firm’s route choices [were]
affected by the imposition of the fee,” id., at 621, 662 N. W.
2d, at 803–804. Rather, the record indicated that any “effect
. . . on interstate commerce is incidental,” rendering the
truckers’ claim of discrimination “a matter of pure specula
tion.” Ibid.
The Michigan Supreme Court denied petitioners leave to
appeal. Westlake Transp., Inc. v. Michigan Pub. Serv.
Comm’n, 469 Mich. 976, 673 N. W. 2d 752 (2003). We
granted their petition for certiorari and consolidated the case
with Mid-Con Freight Systems, Inc. v. Michigan Pub. Serv.
Comm’n, post, p. 440, a case in which interstate truckers

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Opinion of the Court
sought review of a separate state motor carrier fee. We
now affirm the Michigan court’s judgment sustaining
§ 478.2(1).
II
Our Constitution “was framed upon the theory that the
peoples of the several states must sink or swim together.”
Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 523 (1935).
Thus, this Court has consistently held that the Constitution’s
express grant to Congress of the power to “regulate Com
merce . . . among the several States,” Art. I, § 8, cl. 3, con
tains “a further, negative command, known as the dormant
Commerce Clause,” Oklahoma Tax Comm’n v. Jefferson
Lines, Inc., 514 U. S. 175, 179 (1995), that “create[s] an area
of trade free from interference by the States,” Boston Stock
Exchange v. State Tax Comm’n, 429 U. S. 318, 328 (1977) (in
ternal quotation marks omitted). This negative command
prevents a State from “jeopardizing the welfare of the Na
tion as a whole” by “plac[ing] burdens on the flow of com
merce across its borders that commerce wholly within those
borders would not bear.” Jefferson Lines, supra, at 180.
Thus, we have found unconstitutional state regulations
that unjustifiably discriminate on their face against out-of
state entities, see Philadelphia v. New Jersey, 437 U. S. 617
(1978), or that impose burdens on interstate trade that are
“clearly excessive in relation to the putative local benefits,”
Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). We
have held that States may not impose taxes that facially dis
criminate against interstate business and offer commercial
advantage to local enterprises, see, e. g., Oregon Waste Sys
tems, Inc. v. Department of Environmental Quality of Ore.,
511 U. S. 93, 99–100 (1994), that improperly apportion state
assessments on transactions with out-of-state components,
Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653
(1948), or that have the “inevitable effect [of] threaten[ing]
the free movement of commerce by placing a financial bar
rier around the State,” American Trucking Assns., Inc. v.
Scheiner, 483 U. S. 266, 284 (1987).

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Applying these principles and precedents, we find nothing
in § 478.2(1) that offends the Commerce Clause. To begin
with, Michigan imposes the flat $100 fee only upon intrastate
transactions—that is, upon activities taking place exclusively
within the State’s borders. Section 478.2(1) does not facially
discriminate against interstate or out-of-state activities or
enterprises. The statute applies evenhandedly to all carri
ers that make domestic journeys. It does not reflect an ef
fort to tax activity that takes place, in whole or in part, out
side the State. Nothing in our case law suggests that such
a neutral, locally focused fee or tax is inconsistent with the
dormant Commerce Clause.
This legal vacuum is not surprising. States impose nu
merous flat fees upon local businesses and service providers,
including, for example, upon insurers, auctioneers, ambu
lance operators, and hosts of others. See, e. g., Wyo. Stat.
§ 33–36–104 (Lexis 2003); S. C. Code Ann. § 38–7–10 (West
2002). Although we have “long since rejected any sugges
tion that a state tax . . . affecting interstate commerce is
immune from Commerce Clause scrutiny because it attaches
only to a ‘local’ or intrastate activity,” Commonwealth Edi
son Co. v. Montana, 453 U. S. 609, 615 (1981), we have also
made clear that the Constitution neither displaces States’ au
thority “to shelter [their] people from menaces to their health
or safety,” D. H. Holmes Co. v. McNamara, 486 U. S. 24, 29
(1988) (internal quotation marks omitted), nor “unduly cur
tail[s]” States’ power “to lay taxes for the support of state
government,” McGoldrick v. Berwind-White Coal Mining
Co., 309 U. S. 33, 48 (1940).
The record, moreover, shows no special circumstance sug
gesting that Michigan’s fee operates in practice as anything
other than an unobjectionable exercise of the State’s police
power. To the contrary, as the Michigan Court of Appeals
pointed out, the record contains little, if any, evidence that
the $100 fee imposes any significant practical burden upon
interstate trade. See 255 Mich. App., at 620–622, 662 N. W.

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2d, at 803–804. The record does show, for example, that
some interstate trucks “top off ” some interstate hauls with
intrastate pickups and deliveries. See Brief for Intervening
Plaintiffs-Appellants in Nos. 226052, 226122 (Ct. App. Mich.),
Exh. 3, Affidavit of James C. Crozier ¶ 7 (licensing and fuel
manager of TNT Holland Motor Express, Inc., describing
this practice). But it does not tell us the answers to such
questions as: How often does “topping off ” occur across the
industry? Does the $100 charge make a difference by sig
nificantly discouraging interstate carriers from engaging in
“topping off ”? Does the possibility of obtaining a 72-hour
intrastate permit for $10 alleviate the alleged problem? See
§ 478.2(3); see also Brief for Respondents 2, n. 3 (4,928 tempo
rary permits were issued in 2004). If the fees ($100 and $10)
discourage “topping off,” does that local commercial effect
make a significant interstate difference? Would a variable
fee (of the kind the truckers advocate) eliminate such differ
ence? The minimal facts in the record tell us little about
these matters. Compare App. 60–61, Supplemental Affida
vit of Thomas R. Lonergan ¶ 10(e) (official of the Michigan
Public Service Commission stating that topping off is rare
for most interstate carriers because it disrupts schedules
and shipping patterns), with Reply Brief for Intervening
Plaintiffs-Appellants in Nos. 226122, 226137 (Ct. App. Mich.),
Exh. A, Supplemental Affidavit of James C. Crozier ¶ 6 (TNT
Holland frequently tops off interstate loads). And at oral
argument, ATA conceded the absence of record facts that
empirically could show that the $100 fee significantly deters
interstate trade. Tr. of Oral Arg. 5.
Neither does the record show that the flat assessment un
fairly discriminates against interstate truckers. The fee
seeks to defray costs such as those of regulating “vehicular
size and weight,” of administering “insurance requirements,”
and of applying “safety standards.” App. to Pet. for Cert.
44a. The bulk of such costs would seem more likely to vary
per truck or per carrier than to vary per mile traveled. See

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255 Mich. App., at 612–617, 662 N. W. 2d, at 799–801. And
that fact means that a per-truck, rather than a per-mile, as
sessment is likely fair. Cf. Jefferson Lines, 514 U. S., at 199
(rejecting taxpayer’s discrimination claim in part because
“miles traveled within the State simply are not a relevant
proxy for the benefit conferred upon the parties to a sales
transaction”). Nothing in the record suggests the contrary.
Nor would an effort to switch the manner of fee assess
ment—from lump sum to, for example, miles traveled—be
burden free. The record contains an affidavit, sworn by a
Michigan Public Service Commission official, that states that
to obtain the same revenue (about $3.5 million) through a
per-mile fee would require the State to create a “data accu
mulation system” capable of separating out intrastate hauls
and determining their length, and to develop related liability,
billing, and auditing mechanisms. App. 64, Second Supple
mental Affidavit of Thomas R. Lonergan ¶ 2. This affidavit,
on its face, suggests that the game is unlikely to be worth
the candle. While petitioners argue the contrary, they do
not provide the details of their preferred alternative ad
ministrative system nor point to record evidence showing
its practicality. See Jefferson Lines, supra, at 195 (State is
not required to use a particular apportionment formula just
because it may be “possible” to do so).
Petitioners insist that they do not need empirically to dem
onstrate the existence of a burdensome or discriminatory
impact upon interstate trucking, or (presumably) the un
fairness of the assessment in relation to defrayed costs, or
(presumably) the administrative practicality of the alterna
tives. They say that our earlier case, American Trucking
Assns., Inc. v. Scheiner, 483 U. S. 266 (1987), requires invali
dation of the $100 flat fee, even in the absence of such proof.
We disagree.
In Scheiner, this Court invalidated a flat $25 “marker fee”
and a flat “axle tax” that Pennsylvania levied upon all trucks
(interstate and intrastate) that used its roads, including

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trucks that merely crossed Pennsylvania’s borders to trans
port, say, Ohio goods to New Jersey customers. See id., at
273–275. Data showed that the fees imposed a cost per mile
on interstate trucks that was approximately “five times as
heavy as the cost per mile borne by local trucks.” Id., at
286. The assessments largely helped to raise revenue “to
improve and maintain [the State’s] highways and bridges,”
id., at 270, thereby helping to cover costs likely to vary sig
nificantly with truck-miles traveled, see ibid. And the as
sessments did “not even purport to approximate fairly the
cost or value of the use of Pennsylvania’s roads.” Id., at 290.
In light of these considerations, Pennsylvania’s lump-sum
taxes “threaten[ed] the free movement of commerce by plac
ing a financial barrier around the State of Pennsylvania.”
Id., at 284. We concluded that “[i]f each State imposed flat
taxes for the privilege of making commercial entrances into
its territory, there [was] no conceivable doubt that commerce
among the States would be deterred.” Ibid.
The present fee, as we have said, taxes purely local activ
ity; it does not tax an interstate truck’s entry into the State
nor does it tax transactions spanning multiple States. See
255 Mich. App., at 592–594, 662 N. W. 2d, at 789. We lack
convincing evidence showing that the tax deters, or for that
matter discriminates against, interstate activities. See
supra, at 434–435. Nor is the tax one that, on its face,
would seem to call for an assessment measured per mile
rather than per truck. See supra, at 435–436. Conse
quently, we lack any reason to infer that Michigan’s lump
sum levy erects, as in Scheiner, an impermissible discrimina
tory roadblock.
Petitioners add that Michigan’s fee fails the “internal
consistency” test—a test that we have typically used where
taxation of interstate transactions is at issue. Generally
speaking, that test asks, “What would happen if all States
did the same?” See, e. g., Goldberg v. Sweet, 488 U. S. 252,
261 (1989); Jefferson Lines, supra, at 185 (test looks to the

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structure of the tax to see whether its identical application
by every State “would place interstate commerce at a disad
vantage as compared with commerce intrastate”). We must
concede that here, as petitioners argue, if all States did the
same, an interstate truck would have to pay fees totaling
several hundred dollars, or even several thousand dollars,
were it to “top off ” its business by carrying local loads in
many (or even all) other States. But it would have to do so
only because it engages in local business in all those States.
An interstate firm with local outlets normally expects to pay
local fees that are uniformly assessed upon all those who
engage in local business, interstate and domestic firms alike.
See, e. g., Commonwealth Edison, 453 U. S., at 623–624 (dor
mant Commerce Clause does not seek “to relieve those en
gaged in interstate commerce from their just share of state
tax burden even though it increases the cost of doing busi
ness” (internal quotation marks omitted)); cf. Jefferson
Lines, supra, at 187–188 (in context of sales tax, “the Com
merce Clause does not forbid the actual assessment of a suc
cession of taxes by different States on distinct events as the
same tangible object flows along”). A motor carrier is not
special in this respect.
In sum, petitioners have failed to show that Michigan’s fee,
which does not seek to tax a share of interstate transactions,
which focuses upon local activity, and which is assessed even
handedly, either burdens or discriminates against interstate
commerce, or violates the Commerce Clause in any other rel
evant way. See Complete Auto Transit, Inc. v. Brady, 430
U. S. 274, 279 (1977) (noting that a tax will be sustained
where it is applied to an activity with a “substantial nexus”
to the taxing State; where, if applied to interstate activity,
it is “fairly apportioned”; where it does not discriminate; and
where it is “fairly related to the services provided”).
For these reasons, the judgment of the Michigan Court of
Appeals is affirmed.
It is so ordered.

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Thomas, J., concurring in judgment
Justice Scalia, concurring in the judgment.
Michigan imposes a flat fee on trucks that engage in purely
intrastate commercial operations. I agree with the Court
that this fee does not violate the negative Commerce Clause.
Unlike the Court, ante, at 433, 437–438, I reach that determi
nation without adverting to various tests from our wardrobe
of ever-changing negative Commerce Clause fashions: the
balancing approach from Pike v. Bruce Church, Inc., 397
U. S. 137 (1970), the four-factor test from Complete Auto
Transit, Inc. v. Brady, 430 U. S. 274 (1977), and the internal
consistency test from cases such as American Trucking
Assns., Inc. v. Scheiner, 483 U. S. 266 (1987). Instead, I ask
whether the fee “facially discriminates against interstate
commerce” and whether it is “indistinguishable from a type
of law previously held unconstitutional by this Court.”
West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 210 (1994)
(Scalia, J., concurring in judgment). As the Court cor
rectly concludes, Michigan’s fee meets neither of those condi
tions. It does not facially discriminate against interstate
commerce, ante, at 434, and it is distinguishable from peti
tioners’ best analogue, the fees invalidated in Scheiner,
which applied to interstate trucks even when they engaged
in no intrastate business, ante, at 436–437.
Justice Thomas, concurring in the judgment.
I would affirm the judgment of the Michigan Court of
Appeals because “ ‘[t]he negative Commerce Clause has no
basis in the text of the Constitution, makes little sense,
and has proved virtually unworkable in application,’ Camps
Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S.
564, 610 (1997) (Thomas, J., dissenting), and, consequently,
cannot serve as a basis for striking down a state statute.”
Hillside Dairy Inc. v. Lyons, 539 U. S. 59, 68 (2003)
(Thomas, J., concurring in part and dissenting in part).