The Commerce Clause Doesn't Override Rules Governing the Taxing Power

Abstract

This article challenges the view that the commerce clause, including the foreign commerce part of that clause, provides authority for enacting taxes that don’t meet the explicit requirements for taxes set out in the Constitution—the uniformity rule for indirect taxes (duties, imposts, and excises), the apportionment rule for direct taxes that aren’t taxes on incomes, and the export clause that prohibits taxation of articles exported from any state. That reading of the commerce clause would gut constitutional provisions that were clearly intended to be limitations on the congressional taxing power. Even if a tax might be construed as a regulation of commerce, as would be the case with many, if not most, taxes—such as the mandatory repatriation tax, the constitutionality of which is at issue in Moore v. United States—the article argues that the tax must satisfy the rules applicable to the taxing power.

Keywords: commerce clause, foreign commerce clause, uniformity rule, direct-tax apportionment rule, export clause, Sixteenth Amendment, Moore v. United States, mandatory repatriation tax

JEL Classification: K34