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Restoring Politics to the Commerce Clause: The Case for Abandoning the Dormant Commerce Clause Prohibition on Discriminatory Taxation

89 Pages Posted: 7 Jan 2003  

Edward A. Zelinsky

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: October 1, 2002

Abstract

The time has come to scrap the dormant Commerce Clause prohibition on discrimintaory taxation. That judicially - created prohibition has served its historic purpose - to create a single common market of the United States - and can now safely be laid to rest. Jettisoning the concept of nondiscrimintation would not dimsnatle all dormant Commerce Clause restraints on state taxation. After the nondiscrimination principle is retired that Clause would continue to require that taxes be fairly apportioned among the states, that such taxes be levied only by states with nexus to the taxed activity, and that such taxes be reasonably related to the services the taxpater receivges from the taxing state. However, if taxpayers believed that they were subject to something called discriminatory taxation, they would generally take their complaints to Congress or to the legislature imposing those taxes. By shifting controversies from the courts to Congress and the state legislatures, abandoning the dormant Commerce Clause prohibition on discriminatory taxation would restore politics - and doctrinal coherence - to the Commerce Clause.

Keywords: Taxation; commerce clause; discriminatory taxation

Suggested Citation

Zelinsky, Edward A., Restoring Politics to the Commerce Clause: The Case for Abandoning the Dormant Commerce Clause Prohibition on Discriminatory Taxation (October 1, 2002). Cardozo Law School, Public Law Research Paper No. 56. Available at SSRN: https://ssrn.com/abstract=366921 or http://dx.doi.org/10.2139/ssrn.366921

Edward A. Zelinsky (Contact Author)

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

55 Fifth Ave.
New York, NY 10003
United States
212-790-0277 (Phone)

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