We heard at the beginning of Obama's term that our tax policies had to be REFORMED. Just as with regulations that were 'killing business' now it is taxes killing business. As I have pointed out ----with International Economic Zone free-trade/no tax policies keeping global corporations from being taxed-----we already know pols are lying when they say this REFORM is about protecting small businesses.
I showed how they framed the 'net neutrality' issue making it seem the FCC was protecting all internet access while selling off our public airwaves just to allow global online media take all control of internet access. That is what we see below with this internet tax issue. Think this is about main street having to pay taxes on what they buy over the internet?
NO, IT'S ABOUT TAKING THE RIGHT OF CITIES AND STATES FROM TAXING GLOBAL CORPORATIONS IN THESE INTERNATIONAL ECONOMIC ZONES.
Again, Republicans are leading this----and again, it will be the Republican base of small business owner that are killed with local taxation because global monopolies will pay none.
Will Congress Keep The Internet Tax Free? - Forbes
- www.forbes.com/.../will-congress-keep-the-internet-tax-free Chances are, you might be paying Verizon to read this. Or Comcast. Or some other internet provider. But you're not paying Uncle Sam. And you're probably ...
Congress OKs banning local Internet taxes
Alan Fram, Associated Press 5:05 p.m. CST February 11, 2016(Photo: J. Scott Applewhite, AP)
Congress voted Thursday to permanently bar state and local governments from taxing access to the Internet, as lawmakers leapt at an election-year chance to demonstrate their opposition to imposing levies on online service.
On a vote of 75-20, the Senate gave final congressional approval to the wide-ranging bill, which would also revamp trade laws. The White House said President Barack Obama will sign it.
"The Internet is a resource used daily by Americans of all ages," said Senate Majority Leader Mitch McConnell, R-Ky., who brokered an agreement with a Democratic leader earlier this week that helped clear the way for passage. "It's important that they be able to do all of this without the worry of their Internet access being taxed."
The ban on local Internet access taxes had broad support. Even so, some lawmakers remained unhappy over its trade provisions and because the measure omitted a separate, more controversial proposal to let states force online retailers to collect sales taxes for their transactions.
Senate Minority Leader Harry Reid, D-Nev., said the bill was full of "missed opportunities and half-measures."
Since 1998 in the Internet's early days, Congress has passed a series of bills temporarily prohibiting state and local governments from imposing the types of monthly levies for online access that are common for telephone service. Such legislation has been inspired by a popular sentiment that the Internet should be free, along with Republican opposition to most tax proposals.
Until now, states that imposed Internet access taxes have been allowed to continue. Under the approved bill, those states would have to phase out their taxes by the summer of 2020.
Seven states — Hawaii, New Mexico, North Dakota, Ohio, South Dakota, Texas and Wisconsin — have been collecting a combined $563 million yearly from Internet access taxes, according to information gathered by the nonpartisan Congressional Research Service.
Forty-nine Republican and 26 Democratic senators backed the legislation Thursday while 17 Democrats and three Republicans voted "no."
The House approved the compromise in December with the backing of nearly all Republicans but just 24 Democrats.
Although Obama planned to sign the bill, the White House took issue with a provision opposing the "boycott, divestment and sanctions" movement against Israel that uses the phrase "Israeli-controlled territories." White House spokesman Josh Earnest said the provision contradicts U.S. policy toward Israeli settlements. U.S. policy considers Israeli settlements in the disputed West Bank to be illegitimate.
"As with any bipartisan compromise legislation, there are provisions in this bill that we do not support," Earnest said.
The legislation, especially its trade provisions, has pitted the U.S. Chamber of Commerce and other business groups supporting the bill against opponents including the AFL-CIO and other labor organizations.
Supporters say the measure would strengthen U.S. trading by improving protections for American intellectual property like copyrights and trademarks and upgrading trade law enforcement at the country's borders.
They also cite provisions reinforcing the government's ability to head off China and other countries from manipulating their currency to make their exports more affordable, cracking down on imported products made with child labor and accelerating investigations into companies accused of evading the payment of duties.
Democratic critics complained that its trade protections were insufficient and said negotiators who wrote the compromise weakened it significantly, including the currency manipulation language.
Democrats also disliked provisions barring trade agreements that would curb some efforts to restrict greenhouse gas emissions, a major contributor to climate change, or would force the U.S. to revamp its immigration laws.
For years, the drive in Congress to permanently bar taxes on Internet service has languished alongside another effort to empower states to require online retailers to collect state and local sales taxes for online purchases. Supporters of enhancing the collection of online sales taxes say without that, brick-and-mortar stores face a competitive disadvantage.
In hopes of gaining leverage, senators backing the collection of online state sales taxes have long linked the two efforts.
A breakthrough came this week when McConnell agreed to hold a vote this year on the online state sales tax proposal. He reached that deal with No. 2 Senate Democratic leader Dick Durbin of Illinois, a strong advocate of the separate Internet sales tax measure.
Even so, some lawmakers were upset that the sales tax measure would be considered later, with no guarantee of success.
The idea corporate pols were selling is that this was about the consumer being taxed when purchasing something on the internet. If a warehouse is in your city or state-----that warehouse should be paying taxes----unless you are Baltimore and the designation of International Economic Zone has all those global corporations tax-free. This issue with taxing global corporations is this-----it is impossible to provide oversight and accountability and more impossible to contend corporate tax evasion even if you have laws to tax global corporations. That is the point for not allowing global corporations to take control of our local economies-----they will then be that global corporation that sucks all taxpayer revenue for profit and keep coming back for more.
I will be talking about the VAT tax which is what will follow all these laws posing progressive as protecting the consumers against tax.
The VAT tax is where WE THE PEOPLE ARE TAXED FOR PURCHASES WHILE THAT GLOBAL CORPORATION PAYS NO TAX.
If you notice, Congress is given the right to tax----it is not given the right to tell states and localities it CANNOT TAX. Yet again, Congressional pols are ignoring US Constitutional law and making up their own laws. We saw that when Supreme Court ruled MANDATED HEALTH INSURANCE Constitutional. They did that under the Commerce Clause which classifies our health insurance premiums as TAXATION----and it is not.
THAT RULING WAS NOT LEGAL AND OUR CONGRESSIONAL POLS WOULD HAVE CALLED FOR IMPEACHMENT IF THEY WERE NOT ALL GLOBAL CLINTON/OBAMA NEO-LIBERALS.
So, now our monthly health premiums are taxation and Congress thinks it can forbid states and localities from taxing global online businesses.
Think how all these policies are STARVING OUR LOCAL GOVERNMENT COFFERS OF ANY WAY TO SECURE REVENUE.
Taxing and Spending Clause
From Wikipedia, the free encyclopedia
This article is part of a series on the
Constitution of the
United States of America
The Taxing and Spending Clause (which contains provisions known as the General Welfare Clause and the Uniformity Clause), Article I, Section 8, Clause 1 of the United States Constitution, grants the federal government of the United States its power of taxation. While authorizing Congress to levy taxes, this clause permits the levying of taxes for two purposes only: to pay the debts of the United States, and to provide for the common defense and general welfare of the United States. Taken together, these purposes have traditionally been held to imply and to constitute the federal government's taxing and spending power.
Constitutional textThe Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence[note 1] and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
For those not knowing what VAT is------value-added tax has been used overseas in many nations including Europe. When a US corporation pretends they pay more taxes than corporations overseas-----income taxes-----they do not tell you that overseas corporations pay not only income taxes---but VAT as well. A REAL Democrat would be educating about all of this---but Clinton Wall Street global corporate neo-liberals working with global corporations keep Democratic voters from knowing this. They work with Republicans to sell the idea that American corporations are at competitive disadvantage because we TAX CORPORATIONS.
Europeans pay a high rate of taxes in exchange for general public services paid for and free. Corporations in Europe are made to pay their VAT because much of Europe has not been taken by global corporations as the US has. So, the comparisons are NOT EQUAL and the VAT will not work with these global corporate pols as it does in Europe-----VAT will be used to collect taxes only on consumers at the lower product scale----ie, the regional business that distributes oil/gas----then the gas station that sells it. Then of course the people buying the product getting taxed higher and higher.
These global corporate changes in tax law are moving all control of taxation to Federal level at the same time Congress is trying to make official they work for the global corporate tribunal under Trans Pacific Trade Pact. Remember, they see no state sovereignty so this is the step to taking away a state and local government's ability to tax.
Below you see what is probably another Republican voter shouting this is all unconstitutional ----and it is-----but Democratic voters don't understand all this because the organizations that would be educating are captured by corporate non-profits.
Below you see what is probably another Republican voter shouting this is all unconstitutional ----and it is-----but Democratic voters don't understand all this because the organizations that would be educating are captured by corporate non-profits. This is why voters knowing only local issues allow corporate polls to pose progressive ----we are busy in a Mayoral Election talking about high water bills----and not these huge issues for our city. You can see why it was so important for Wall Street Development to fill our local elections with 20 candidates making these election events about allowing only 1 minute to talk about policy----of course that does not allow any discussion----and that keeps from talking broadly and only on local development issues.
A Federal SALES Tax,
OR VAT (value added tax),
(AND the Proposed “FAIR TAX”)
ARE PATENTLY UN-CONSTITUTIONAL
IN THE FIFTY STATES !
The interstate commerce clause of the U.S. Constitution has long been perceived (and recognized) as a complete bar to the taxation of retail sales in the fifty states by the federal government. The interstate commerce clause allows the taxation (by the federal government) of the first sale at the whole-sale level after interstate transport occurs, but effectively forbids the taxation of general retail sales by the federal government!
The Constitution, of course, gives the federal government lawful powers to lay and collect taxes in the United States of America, both directly and indirectly. However those powers ARE VERY CAREFULLY LIMITED IN SCOPE AND POWER so that they do not intrude upon or invade the jurisdiction and powers of the legislatures of the fifty States, or the fundamental, constitutionally enumerated and preserved, rights of the American People. To wit: all direct taxes are required under Article 1, Section 2, Clause 3 to be apportioned to the state legislatures for payment, and under Article 1, Section 9, Clause 4 are also required to be laid in proportion to the census, notwithstanding (irregardless of) the adoption of the 16th Amendment (see Brushaber v Union Pacific R. Co and Stanton V. Baltic Mining Co.).
Under Article 1, Section 8, Clause 1 the federal government is given the authority to tax indirectly, by impost, duty, and excise. The excise taxing authority includes the power to tax “income” derived from excise taxable activities (see Stanton V. Baltic Mining Co.).
Under Article 1, Section 8, Clauses 3 and 4, the federal government is given complete authority over all foreign affairs and foreign persons in America.
Imposts are taxes laid on foreign goods being imported into the United States of America, or on foreign activity conducted within the U.S. (America), and are in accord with these sections of the Constitution.
“Duties” are taxes laid on goods manufactured in the U.S. that are being exported for sale outside the country, in some other part of the world. The U.S. has basically foregone these types of taxes and has very few “duties” in existence that have been imposed on American articles to be exported outside the country. We properly do not punish our own manufacturers for selling “overseas”.
These sections of the Constitution grant all legal powers to the federal government over all foreign affairs, including international foreign agreements with other nations (treaties), and over foreign persons in the United States and their activities. Article I, Section 10, Clauses 1, 2 and 3 of the Constitution prohibit any and all of the States from enacting any individual agreements with foreign entities or nations, or taxing their imports. All foreign relations are regulated and legislated under federal law, not State law.
However, under the U.S. Constitution, each of the governments of the fifty states retains the sovereign power and lawful jurisdiction over its own people, lands, and activities, under their own Constitutions, and each State’s legislature alone enacts law for the People of that State regarding affairs and matters occurring exclusively within that State’s lands and territory.
Additionally, Article 1, Section 8, Clause 3 of the Constitution gives the federal government jurisdiction and authority over foreign commerce and over all interstate commerce between the states, but not occurring within a single State, thus establishing the complete jurisdictional authority of the federal government, which is an authority around the states and between the states, but not over the land of the fifty states. This is why the Supreme Court has rejected the federal government’s attempts to exercise police powers inside the fifty states that could not be reasonably related to interstate commerce, as recently as 1998 in the U.S. v Lopez decision.
Under the U.S. Constitution, the federal government does not possess the territorial jurisdiction necessary to tax retail sales in the fifty states. That authority, jurisdiction, and power belong exclusively to the legislatures (governments) of the States themselves. Under the Interstate Commerce clause of the U.S. Constitution, it has long been plainly recognized by all that the federal government may only tax the first sale at the wholesale level after interstate transport (commerce) has occurred.
Of course these federal excise taxes, imposed and laid on interstate commerce, CAN ONLY BE IMPOSED AND LAID ON GOODS THAT HAVE ACTUALLY CROSSED STATE LINES, because that is the definition of both the requirement and the authority to tax “interstate” “commerce” that is alleged to be applicable. One should carefully note that these interstate commerce taxes, like the federal gasoline tax, are not separate items to be paid by the consumer, as a sales tax is itemized separately on your receipt, but rather the federal interstate commerce based tax is “built in” to the price of the gas at the pump because that tax is paid not by the consumer, but by the WHOLESALER or RETAILER transporting the product across state lines. The consumer does not actually “pay” that tax, it is paid by the seller (who usually passes it through to the consumer as part of the cost of the goods), but it is not a separate item on the consumer’s receipt.
That is because ONLY the State legislatures ALONE may tax the retail sales that occur within a particular State, NOT THE FEDERAL GOVERNMENT. Sales taxes have long been recognized under the U.S. Constitution and its system of limited powers, under a clearly delineated separation of powers, as being the exclusive prerogative of ONLY the territorial sovereign, i.e. the STATE legislatures and governments, NOT CONGRESS, except where Congress is the territorial sovereign. The power to lay and impose a Sales tax is the exclusive power of the territorial sovereign, and is not a power legitimately possessed by the federal government in any of the lands of the fifty states. The only places where a federal sales tax can be constitutionally imposed, is in Washington, D.C., i.e.: the District of Columbia, and the territories and possessions of the federal government, i.e.: Guam, Puerto Rico, U.S. Virgin Islands, etc. Nowhere else can it be made applicable.
A federal sales tax cannot be constitutionally imposed in any of the fifty states because the federal government does not possess the territorial jurisdiction necessary to tax retail sales inside the fifty states.
Finally, a federal VAT (value added tax) is nothing but a federal sales tax in a thinly veiled disguise, imposed in a “tiered” manner on all levels of sales operations, i.e.: wholesale, distribution, and retail. However, just as outlined above for the federal sales tax, a federal VAT is also UNconstitutional under the separation of limited, territorially based powers, as commanded by the Constitution of the United States of America.
Therefore, all these idiotic politicians talking about a national sales tax, or a flat tax, to replace or LAY ON TOP OF the federal income tax, only demonstrate that they are unfit for constitutional congressional (or State) office, because they are not aware of or don’t understand the constitutional limitations imposed on the authority of the federal government to tax the property or activities of We the People, OR to tax retail activity occurring inside the territory of the fifty states.
The federal government may, under the authority of the interstate commerce clause, ONLY tax the first sale at the wholesale level after interstate transport. Under the U.S. Constitution, they may NOT tax retail sales in the fifty states.
As a proposed federal retail sales tax of 22.5% on all sales activity within the fifty states of the United States, the proposed “FAIR TAX” (to replace the income, estate, and employment tax withholding and collection laws) IS ALSO PLAINLY AND CLEARY UNCONSTITUTIONAL !
IT IS ALL PATENTLY UNCONSTITUTIONAL !
It should be entirely unacceptable to the American People to exchange one (operationally) UNconstitutional system of taxation for another (legislatively) UNconstitutional system, rather than make a return to a truly Constitutional system that is honestly based on a true understanding of the limited powers of the federal government that are granted to tax indirectly, BUT NEVER DIRECTLY, even after the addition of the 16th Amendment to the Constitution.
What Congress has as a duty is protecting citizens in states from DISCRIMINATORY TAXATION BY STATES AND LOCALITIES. This is what Maryland has done in its tax policies these few decades where one community is taxed more than another----one citizen gets tax breaks and not others------one business gets tax breaks and not others.
THIS IS THE DISCRIMINATORY TAXATION LAW THAT IS BEING IGNORED BY OBAMA AS WAS TRUE WITH BUSH----WITH THE GOAL OF ENDING THIS COMPLETELY.
Global pols are setting the stage for the Federal government to levi taxes anyway it wants. It has already done that with this approach of selective corporate subsidy where all the Federal stimulus is going to global corporations that then come to our communities to tell us how to work.
THIS IS A BIG STEP TOWARDS THE FAR-RIGHT RICH USING TAXATION TO CONTROL CITIZENS AND BUSINESSES.
The winners today in this deregulation of our US and Maryland Constitutional requirement of UNIFORM TAXATION will be short-lived as the goal is simply to end all protections and all will be taxed heavily by corporate government any way they please.
Federal government CAN CONTROL TAXATION OF FOREIGN ENTITIES but WE THE PEOPLE must claim that if a global corporation is located in Baltimore City -----it is no longer a foreign corporation. That is what global pols are trying to do by creating these illegal designations of International Economic Zones.
The Future of the Dormant Commerce Clause: Abolishing the Prohibition on Discriminatory Taxation
Edward A. Zelinsky
Brannon P. Denning
Last updated: Mar. 25, 2007
Professor Edward A. Zelinsky, of the Cardozo School of Law, argues that “[i]t is time to abolish the dormant Commence Clause prohibition on discriminatory taxation.” This is so, he writes, because “the prohibition is today doctrinally incoherent and politically unnecessary.” Professor Brannon P. Denning, of the Cumberland School of Law, finds in Zelinsky’s proposal a slippery slope. As Denning argues, taking Zelinsky’s argument on its own terms, “there is no reason to restrict his proposal to tax cases.” And yet, writes Denning, “if the antidiscrimination principle is to be jettisoned in nontax cases as well, then we might as well do away with the [dormant Commerce Clause doctrine (DCCD)] altogether, since the antidiscrimination principle is the DCCD’s most robust branch.”
Opening Statement — Edward A. Zelinsky†
The Time Has Come to Abolish the Dormant Commerce Clause Prohibition on Discriminatory Taxation
†The Morris and Annie Trachman Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University; Visiting Professor of Law, Yale Law School
It is time to abolish the dormant Commerce Clause prohibition on discriminatory taxation. Indeed, such abolition is overdue. This prohibition has played a historically important role in implementing the Framers’ vision of the United States as an economically integrated free-trade zone, unimpeded by state barriers to national commerce. However, the prohibition is today doctrinally incoherent and politically unnecessary.
As it exists today, the dormant Commerce Clause case law proscribes discriminatory taxation favoring local industries but condones economically and procedurally comparable direct expenditures subsidizing those same industries. Within the universe of state taxation, the dormant Commerce Clause case law does not convincingly identify which state tax provisions discriminate and which do not. The resulting indeterminacy subjects equivalent government policies to diametrically opposed treatment under the dormant Commerce Clause.
Abolishing the dormant Commerce Clause prohibition on discriminatory taxation would leave intact the Clause’s other requirements for state taxes—i.e., that such taxes (1) be properly apportioned, (2) be levied against taxpayers with adequate nexus to the taxing state, and (3) bear a reasonable relationship to the services received by the taxpayer from the taxing state. Moreover, abolishing the dormant Commerce Clause prohibition on discriminatory taxation would not alter the case law relative to states’ nontax policies, nor would such abolition modify the constitutional constraints imposed on state taxation by other provisions of the Constitution, such as the Equal Protection Clause and the Privileges and Immunities Clause.
Abolishing the dormant Commerce Clause prohibition on discriminatory taxation would send many controversies which are now litigated in the courts, to the political branches of government—which is where they belong. In the final analysis, the Commerce Clause is Congress’s to enforce.
Typical of the contemporary dormant Commerce Clause cases prohibiting discriminatory taxation is New Energy Company of Indiana v. Limbach. In New Energy, Ohio granted a sales tax credit for Ohio-produced ethanol. New Energy, an Indiana-based producer of ethanol, complained that Ohio’s tax credit discriminated against out-of-state producers like itself. The U.S. Supreme Court agreed with New Energy that the Ohio tax credit, limited to ethanol produced in-state, constituted “economic protectionism” by Ohio and thus discriminated against out-of-state ethanol producers like Indiana-based New Energy. Ohio’s tax-based discrimination, the Court held, therefore violated the dormant Commerce Clause.
A fundamental problem with this conclusion is that Indiana comparably bolsters its domestic ethanol industry by means of cash subsidies with economic effects resembling those of the Ohio tax credit. However, this form of “economic protectionism,” the Court indicated, is permitted under the dormant Commerce Clause, despite its similar economic effect to the Ohio tax credit. Thus, it turns out, New Energy is not about “economic protectionism” after all. Rather, it is about the form such protectionism may take. As long as states subsidize their own industries through direct cash outlays, rather than tax breaks, there is no constitutional constraint.
New Energy is not an isolated or unusual case; rather, it is typical of the Court’s contemporary dormant Commerce Clause jurisprudence, which prohibits certain state tax policies while condoning economically and procedurally comparable direct expenditure programs. For example, this doctrinal inconsistency also emerges in Bacchus Imports, Ltd. v. Dias. In Bacchus, Hawaii exempted from its wholesale liquor sales tax certain locally produced beverages. The Court struck this exemption as violating the dormant Commerce Clause prohibition on discriminatory taxation, since beverages produced out-of-state did not receive Hawaii’s tax exemption.
Like the Court’s holding in New Energy, the Court’s holding in Bacchus is plausible at first blush. A second look, however, is more troubling. Just as Indiana is free to provide cash subsidies to its local ethanol industry, Hawaii is free to subvent its in-state beverage producers via cash grants and other nontax subsidies—even though these permitted subsidies can have the same economic effects as the tax-based programs the Court forbids under the dormant Commerce Clause.
What, I respectfully ask, is the point of all of this? Why are state subsidies constitutionally acceptable in the form of direct cash grants, but become discriminatory protectionism when undertaken by means of economically equivalent tax breaks?
The problem, moreover, is not just that the dormant Commerce Clause is today understood as outlawing tax benefits for in-state industries while condoning comparable cash subsidies for those industries. The case law, which purports to strike tax benefits which are discriminatory, does not reliably or persuasively tell us which state taxes are (and are not) discriminatory. It is, consequently, impossible to know in advance which state tax provisions run afoul of the dormant Commerce Clause prohibition on discriminatory taxation and which do not.
Consider, for example, the Sixth Circuit’s decision in Cuno v. DaimlerChrysler. In Cuno, Ohio law gave DaimlerChrysler state income tax credits and local property tax exemptions for replacing Daimler-Chrysler’s existing auto manufacturing plant in Ohio with a new facility in Ohio. The appeals court held that Ohio’s income tax credit granted to DaimlerChrysler discriminated under the dormant Commerce Clause but that the property tax exemption to DaimlerChrysler did not. Moreover, the court indicated that, had DaimlerChrysler not already owned a plant in Ohio, the Ohio income tax credit would not have discriminated for Commerce Clause purposes if that credit had lured DaimlerChrysler into Ohio de novo.
The confusion in Cuno is not the Sixth Circuit’s fault, but rather reflects the current unfortunate status of the dormant Commerce Clause prohibition on discriminatory taxation. The dormant Commerce Clause is today understood as proscribing some state taxes but not others without reliably or persuasively indicating which state taxes unconstitutionally discriminate and which do not. The dormant Commerce Clause also is understood today as forbidding discriminatory tax policies (however defined) while permitting economically and procedurally comparable nontax programs. Like a once-great champion who refuses to leave the ring, the dormant Commerce Clause prohibition on discriminatory taxation stumbles along well past its prime.
What will happen if the U.S. Supreme Court, confronting the doctrinal incoherence of the dormant Commerce Clause prohibition on discriminatory taxation, abolishes that prohibition? The controversies giving rise to cases like New Energy, Bacchus, and Cuno will not go away. Rather, these controversies will be channeled toward political resolution. Consider, for example, the Ohio taxpayers who brought the Cuno litigation to protest the tax-based subsidization of DaimlerChrysler. If these taxpayers can no longer attack tax provisions as discriminatory under the Commerce Clause, they will still be free to take their opposition to such tax breaks to the localities which granted the property tax exemptions to DaimlerChrysler; to the Ohio legislature that authorized the corporate income tax credits DaimlerChrysler received for building its new Ohio plant; and, ultimately, to the Congress that, using its affirmative legislative powers under the Commerce Clause, can regulate states’ ability to subsidize interstate actors. In sum, closing the courthouse to the Cuno taxpayers will not leave them without potential remedies. Rather, it will require them to pursue political, rather than judicial, remedies to repeal the state tax policies they oppose.
Bacchus is particularly instructive in this regard, for the Hawaii state tax subsidies declared unconstitutional in Bacchus had already been allowed to expire by the Hawaii legislature. Tax policies adopted by the states can be undone by the states.
In the context of the overriding controversy about the dormant Commerce Clause, the call to abolish the prohibition on discriminatory taxation is actually quite modest—prominent voices call for repudiating the dormant Commerce Clause altogether. In contrast, I propose only that the once-useful prohibition on discriminatory taxation now be laid to rest. This would leave intact the Court’s dormant Commerce Clause case law relative to nontax state policies and would leave in place, as to state taxes, the requirements that such taxes be properly apportioned, be assessed only as to taxpayers with sufficient nexus to the taxing state to justify taxation, and be levied in reasonable relationship to the services received by the taxpayer from the taxing state.
I call for such abolition as one who, on the merits, shares the skepticism of the state subsidies which prompt much of the contemporary dormant Commerce Clause litigation. As a matter of policy, the tax breaks challenged in New Energy, Bacchus, and Cuno strike me as problematic. There is, however, a difference between state tax policy being unwise and being unconstitutional.
Supporters of the status quo mount a variety of defenses for the dormant Commerce Clause prohibition on discriminatory taxation, despite the prohibition’s doctrinal incoherence. The most common one is this: if the Court abandons this prohibition, some states will (literally or figuratively) erect tariff booths at their borders, requiring nonresidents to pay for entry. I doubt that any states would institute such tariffs if the Court abandoned the dormant Commerce Clause prohibition on discriminatory taxation. Even if they did, it is doubtful that Congress would permit this. And even if I am wrong about the states and about Congress, the Privileges and Immunities Clause of the Constitution would preclude states from imposing entry fees on nonresidents alone.
The proverbial bottom line is that, to address this and similar hypotheticals, we need not retain the incoherent body of law which is today the dormant Commerce Clause prohibition on discriminatory taxation.
Another theme of those defending the doctrinal status quo is that taxes are different procedurally from direct expenditures. The seemingly untenable distinction between discriminatory state tax policies (prohibited under the dormant Commerce Clause) and economically equivalent direct subsidies (permitted under the Clause) is viable, they claim, because tax breaks are less well understood and less carefully scrutinized than are cash grants and other forms of nontax subsidization. Hence, it is appropriate for the judiciary, under the aegis of the dormant Commerce Clause, to provide additional oversight of states’ tax policies.
Like the prohibition itself, this argument was once more compelling than it is today. Today, most states produce tax expenditure budgets which highlight and quantify tax subsidies. We also have fewer illusions today than we once did about the level of political scrutiny actually given to direct budgetary outlays. Budgetary oversight, whether of tax expenditures or of direct outlays, is typically incremental, focusing on the margins of tax and expenditure programs. In 2007, it is not as credible as it once was to suggest that direct expenditures are reviewed with considerably greater efficacy than are comparable tax subsidies. It is thus unpersuasive for the dormant Commerce Clause to prohibit certain (hard to identify) state tax breaks while permitting equivalent direct expenditures.
Finally, defenders of the dormant Commerce Clause prohibition on discriminatory taxation can point to the weaknesses and limitations of legislative and executive decision making as reasons to retain the status quo, i.e., judicial supervision of state tax breaks under the aegis of the nondiscrimination principle. However, legislators and administrators have superior resources and opportunities for tax policy decision making. Unlike generalist judges, legislatures have specialized committees with professional staffs, and tax administrators similarly have greater specialized expertise. Legislators and executive branch tax policymakers can draw upon outside expertise from many sources, something difficult for judges to do. Legislators and executive branch officials also can give continuous attention to the tax law, unlike judges, whose intervention in the tax law is episodic at best. And judicial decision making has its own weaknesses. If those who love laws and sausages should see neither being made, the same is often true of judicial opinions.
At the end of the day, the dormant Commerce Clause prohibition on discriminatory taxation is an anachronism which was useful in an earlier age but does not work today. It makes no sense to proscribe on constitutional grounds certain tax breaks while simultaneously condoning economically and procedurally comparable direct expenditures. It is particularly troubling that today we cannot even identify which state tax breaks will be deemed discriminatory (and thus forbidden by the dormant Commerce Clause) and which will not. The dormant Commerce Clause prohibition on discriminatory taxation has performed an honorable service to the nation, but it is now time to put this prohibition to rest.