Is the Dormant Commerce Clause Expendable? A Response to Edward Zelinsky
Brannon P. Denning
Samford University - Cumberland School of Law
February 20, 2007
Professor Edward Zelinsky has proposed that courts abandon the dormant Commerce Clause doctrine's (DCCD) bar against discriminatory state laws, at least in cases involving state taxes. He argues that the anti-discrimination principle is incoherent at its core because the case law treats subsidies, which have economically identical effects to taxes and tax credits, differently. More generally he argues that it makes no sense to describe one set of taxes as "discriminatory" and another set as "non-discriminatory" when all taxes differentiate between in-state and out-of-state taxpayers - between those subject to the taxing jurisdiction of the state and those that are not.
If Professor Zelinsky is correct, then it seems that the anti-discrimination principle should be discarded in non-tax cases as well. In fact, Professor Zelinsky seems to recognize where the logic of his critique leads: to the elimination of the DCCD altogether. But this radical change does not worry him; he assures us that the DCCD is no longer necessary. Political safeguards exist that render the DCCD obsolete, he argues.
In this essay, I take issue with both Professor Zelinsky's core argument - that the antidiscrimination principle is incoherent - and his assurances that political safeguards could substitute for judicial enforcement of the DCCD. Part I outlines Professor Zelinsky's main argument against the anti-discrimination principle. Part II explains why Professor Zelinsky's critique and his solution is not a modest one, but rather, taken seriously, means the end of the DCCD itself. Part III defends the anti-discrimination principle against charges of inconsistency and incoherence and argues that political safeguards are insufficient to warrant discarding the principle or the DCCD. A brief conclusion follows.
Number of Pages in PDF File: 21
Keywords: dormant Commerce Clause, political safeguards, Edward Zelinsky, Cuno, DaimlerChrysler
JEL Classification: K00
Date posted: February 21, 2007
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