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
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?

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