Daimlerchrysler V. Cuno, State Investment Incentives, and the Future of the Dormant Commerce Clause Doctrine
22 Pages Posted: 3 Oct 2006
One of the Term's most anticipated decision, Cuno turned out to be a bit of an anticlimax, since the Court declined to reach the merits of the plaintiffs' suit against the State of Ohio for certain of its investment tax credits, concluding that the state taxpayer-plaintiffs lacked standing. In this essay, written for the CATO Supreme Court Review, I describe the Court's decision, reexamine the arguments for and against the constitutionality of the investment tax credits, and offer some thoughts on why the constitutional question - still a live one after Cuno - is so difficult. I conclude that the Court's own imprecision in its dormant Commerce Clause doctrine jurisprudence as to the meaning of discrimination contributes in no small part and offer some preliminary suggestions for clarifying that concept.
Keywords: DaimlerChrysler, Cuno, dormant commerce clause, tax, subsidy, investment tax credit, Ohio
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