The Dormant Commerce Clause

Mike Greve and Mike Ramsey both have interesting posts on McCulloch v. Maryland and the Dormant Commerce Clause.  Here are my views:

1. In McCulloch, the Supreme Court held that federal institutions such as the Bank of the United States were immune from discriminatory state taxes. I have long been skeptical of this opinion. The federal government has the power to immunize federal institutions and so an argument for a constitutional immunity is extremely weak.  That said, there is a reasonably strong argument that the federal statute establishing the bank preempted the state tax.

2. I do not believe that the Constitution’s original meaning supports the Dormant Commerce Clause. It is possible that some of the work may be done by the Privileges and Immunities Clause of Article IV, but only some of it. While there are articles attempting to ground a Dormant Commerce Clause in the original meaning, I have not found them persuasive.

3.  I believe the Dormant Commerce Clause doctrine is beneficial and therefore I would be disappointed from a policy perspective if it were overturned. By contrast, I do not think desirable policy would be harmed if the immunity portion of McCulloch were overturned, because Congress would step in.

4. While Congress would surely, in the absence of the McCulloch immunity, preempt state laws that interfered with federal institutions, it is less clear that it would act to prohibit states from taking actions that interfered with interstate commerce. But I believe it is much more likely than Mike Greve does. It may be, as Mike says, that “No tax coordination rule has ever come from Congress (let alone the states themselves).”  But that does not mean, as Mike says, that “The argument against the dormant Commerce Clause is an argument for unchecked state aggression.”

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The Taxman Cometh, Twice

Abstract Businessman in Tax Ball and Chain

Among the cases teed up for the Supreme Court’s current Term is Comptroller v. Wynne, arising over the state taxation of personal income earned and taxed in other states (and therefore, in interstate commerce). The vast majority of state and local jurisdictions credit residents’ taxes paid to “foreign” jurisdictions, meaning other states. Maryland credits such taxes against state but not against local income taxes (which are collected by the state). Through an S-corporation, the Wynnes (Maryland residents) earned a ton of income in thirty-plus states and paid income taxes there—and then again paid the local tax on that income, without receiving a credit. The Maryland Court of Appeals deemed the arrangement unconstitutional. The Comptroller asked for and received cert. Briefs etc. can be found here.

Boring? Maybe (unless you live in Maryland and earn income elsewhere). But there are reasons to pay attention.

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