The Future of the Dormant Commerce Clause: Abolishing the Prohibition on Discriminatory Taxation

Authors

Edward A. Zelinsky, Benjamin N. Cardozo School of LawFollow
Brannon P. Denning, Cumberland School of Law

Publication Date

2006

Journal

University of Pennsylvania Law Review Online

Abstract

Professor Edward A. Zelinsky, of the Cardozo School of Law, argues that "[i] t is time to abolish the dormant Commence Clause prohibition on discriminatory taxation." This is so, he writes, because "the prohibition is today doctrinally incoherent and politically unnecessary." The incoherence, Zelinsky maintains, stems from the disparate treatment by the United States Supreme Court of economically identical activities: "discriminatory taxation favoring local industries," which the doctrine prohibits, and "direct expenditures subsidizing those same industries," which it permits. It is unnecessary, Zelinsky argues, because Congress is able, and better suited, to police any state abuses. In short, "[l]ike a once-great champion who refuses to leave the ring, the dormant Commerce Clause prohibition on discriminatory taxation stumbles along well past its prime." Professor Brannon P. Denning, of the Cumberland School of Law, finds in Zelinsky's proposal a slippery slope. As Denning argues, taking Zelinsky's argument on its own terms, "there is no reason to restrict his proposal to tax cases." And yet, writes Denning, "if the antidiscrimination principle is to be jettisoned in nontax cases as well, then we might as well do away with the [dormant Commerce Clause doctrine (DCCD)] altogether, since the antidiscrimination principle is the DCCD's most robust branch." Pretty quickly, writes Denning, it appears that "Professor Zelinsky is really proposing nothing less than the abandonment of the DCCD in toto."

Volume

155

First Page

196

Publisher

Penn Carey Law

Disciplines

Constitutional Law | Law | Taxation-State and Local | Taxation-Transnational | Tax Law

Recommended Citation

Edward A. Zelinsky & Brannon P. Denning, The Future of the Dormant Commerce Clause: Abolishing the Prohibition on Discriminatory Taxation, 155 U. Pa. L. Rev. Online 196 (2006).
https://larc.cardozo.yu.edu/faculty-articles/533