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The False Modesty of Department of Revenue v. Davis: Disrupting the Dormant Commerce Clause Through the Traditional Public Function Doctrine

70 Pages Posted: 6 Mar 2009 Last revised: 27 Nov 2009

Edward A. Zelinsky

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: March 3, 2009

Abstract

In Department of Revenue v. Davis, the United States Supreme Court held that the Kentucky income tax statute and, by extension, other states' similar laws do not discriminate for purposes of the dormant Commerce Clause. By explicitly deferring to established practices and expectations, Davis is, at first blush, the kind of modest, pragmatic decision advocated today by many, including, most prominently, Chief Justice Roberts.

However, on a second look, Davis has broad implications. Indeed, Davis disrupts the Court's preexisting dormant Commerce Clause doctrine by confirming the Roberts Court's use of the "traditional public function" category to immunize government activity from dormant Commerce Clause scrutiny. Over two decades ago, in Garcia v. San Antonio Metropolitan Transit Authority, the Supreme Court rejected for Commerce Clause purposes the "traditional public function" doctrine as unworkable. The Garcia Court's criticism remains persuasive today: There is no principled basis for determining when a government function is old enough to be "traditional" or "public" enough to be public. Every government activity is traditional or becomes so. Given the breadth (indeed, the indeterminacy) of the "traditional public function" category, that category, as affirmed in Davis, encompasses and gives dormant Commerce Clause protection to all governmental activities including tax-based subsidies the Court has previously stricken as impermissibly discriminating under the dormant Commerce Clause. As these previously stricken activities constitute "traditional public functions," Davis logically protects them from dormant Commerce Clause scrutiny.

Keywords: dormant Commerce Clause, state income taxes, discrimination, Davis, traditional public function, Garcia

Suggested Citation

Zelinsky, Edward A., The False Modesty of Department of Revenue v. Davis: Disrupting the Dormant Commerce Clause Through the Traditional Public Function Doctrine (March 3, 2009). Cardozo Legal Studies Research Paper No. 255. Available at SSRN: https://ssrn.com/abstract=1352687 or http://dx.doi.org/10.2139/ssrn.1352687

Edward A. Zelinsky (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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New York, NY 10003
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212-790-0277 (Phone)

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