On July 13, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of the consolidated lawsuits brought by Rockland and Orange Counties against the MTA and the Triborough Bridge and Tunnel Authority (TBTA), ending one of the last remaining broadside constitutional attacks on Manhattan’s Central Business District Tolling Program.
The result surprised no one who attended the March oral argument, where Judge Calabresi remarked from the bench that he could not find a single case suggesting that tolls violate the right to travel. But the 19-page opinion did more than dispose of two counties’ grievances. It consolidates the doctrinal framework that will govern every future challenge to road pricing in the Second Circuit (covering Connecticut, New York, and Vermont), and it leaves one door conspicuously ajar.
The Backdrop
Here is a quick refresher for anyone who spent the last 18 months blissfully outside the toll zone. The 2019 Traffic Mobility Act directed the TBTA to establish the CBD Tolling Program (congestion pricing), charging a daily toll on vehicles entering Manhattan south of 60th Street. The stated statutory purposes are twofold: reducing congestion in the CBD and funding capital projects for mass transit, with proceeds allocated 80% to subways and buses, and 10% each to the LIRR and Metro-North.
Rockland and Orange Counties sued in 2024, before the program even launched, describing themselves as “transit deserts” whose residents have no realistic alternative to driving. Rockland’s mass-transit trip to Manhattan can run two hours or more; Orange County is served by a single train line requiring a transfer in New Jersey. Judge Cathy Seibel dismissed both complaints in July 2025, memorably observing that the toll was one of the “cons” of suburban living but not a constitutional deprivation. The counties appealed.
The Tax Question the Court Refused to Answer
The most interesting move in the opinion is the one the panel didn’t make. The counties’ lead theory was that the toll is actually a tax and under the New York Constitution, only the Legislature can impose taxes, not a public authority like the TBTA. The panel never decided whether the toll is a tax. Instead, it invoked the Tax Injunction Act, which strips federal courts of jurisdiction to enjoin the assessment or collection of any state tax where an adequate state-court remedy exists. The logic is elegant and a little brutal: if the counties are right that the toll is a tax, the federal courts can’t touch it, because the TIA sends them to state court. Exercising “hypothetical jurisdiction,” the panel assumed the toll is not a tax and proceeded to dismiss everything else on the merits.
Right to Travel: The Framework, Cemented
The heart of the opinion is Orange County’s right-to-travel claim, and this is where the panel did the transportation bar a genuine service by tidying up the doctrine.
The Second Circuit has long recognized a constitutional right to intrastate as well as interstate travel. The analysis now works like a two-step gate. First: does the toll policy draw “invidious distinctions” among travelers or impose more than a “minor restriction” on travel? If yes, strict scrutiny. If no, the court applies the three-part reasonableness test: the fee must (1) be based on some fair approximation of use of the facilities, (2) not be excessive in relation to the benefits conferred, and (3) not discriminate against interstate commerce.
Orange County’s pitch for strict scrutiny rested on the practical indispensability of driving. It involves the argument that when a toll sits on the only viable route, it burdens travel in a way a discretionary toll does not. The panel’s answer was blunt: Orange cited no authority, and the court found none, holding that a toll becomes more than a minor restriction because of the alleged importance of the route. The importance-of-the-route theory is now, in the Second Circuit, a dead letter.
From there, the analysis was almost a formality. Orange conceded there was no discrimination against interstate commerce. On “fair approximation of use,” the county argued that toll proceeds aren’t earmarked for the streets its residents actually drive on. There is no CBD roadway improvements, no dedicated funding for Orange’s “one sporadic rail line.” The panel held that the law imposes no such earmarking requirement. The benefit that justifies the fee can be as diffuse as reduced congestion in the tolled zone itself. This is a benefit Orange effectively conceded by alleging the program would deter driving into the CBD. The circularity is doing a lot of work here, and defense counsel in future user-fee litigation should take note: the plaintiff’s own allegations about a program’s efficacy can supply the “benefit” that defeats the claim.
Rational Basis Does What Rational Basis Does
The due process and equal protection claims received the treatment such claims
almost always receive when no suspect class or fundamental right is in play. The counties’ most colorful argument was that the program irrationally exempts vehicles that stay entirely within the CBD, even though those vehicles also cause congestion, which ran into the familiar wall: the legislature need not choose the most precise classification available. A point-of-entry toll is administratively workable; a system tracking how long each vehicle lingers in the zone is not. Administrative efficiency alone sustains a classification under rational-basis review.
Rockland’s Excessive Fines Clause theory fared worse. A fine is a payment to a sovereign as punishment for an offense. Driving into Midtown may feel like a punishable act, but it isn’t one, so the toll isn’t a fine, and the analysis ends before it begins.
The Takeaways
For the FHV industry, three points stand out:
- First, the federal courthouse doors are now effectively closed to constitutional challenges to congestion pricing.
Between this decision, the collapse of the USDOT’s attempted rescission last year, and the string of prior dismissals, the program’s legal foundation is about as settled as these things get.
- Second, the toll-versus-tax question remains formally open but only in state court, and only for a plaintiff willing to fight uphill against a program with demonstrated results and a nine-figure revenue stream dedicated to transit capital projects.
- Third, and most practically: preserve your amendment rights. The panel affirmed the denial of leave to amend largely because the counties never asked for it, never proffered what new allegations might cure the defects, and passed on the district court’s own scheduling opportunity to replead. It is a recurring, unforced error and in a case with claims this difficult, it was probably the only issue on appeal the plaintiffs could have controlled.
The $9 toll, meanwhile, keeps getting collected. Faster commutes, quieter streets, and, for the counties on the wrong side of the Hudson, one fewer forum in which to complain about it.
Steven J. Shanker, Esq. is General Counsel to the Livery Roundtable, Inc. and the New York
Independent Livery Driver Benefit Fund.
