Constitutional Law Prof Blog

Court Upholds California's Pig Protection Law

The Supreme Court ruled today that California's Prop 12, which prohibits the in-state sale of whole pork meat that comes from breeding pigs that are "confined in a cruel manner," did not violate the Dormant Commerce Clause. The ruling means that Prop 12 stays on the books. It also means that the familiar Dormant Commerce Clause test survives, even if the various opinions exposed fault lines on the Court.

The case, National Pork Producers Council v. Ross, tested how the Court would assess a neutral state law that impacted out-of-state pork producers. (Everyone agreed that Prop 12 was "neutral," in that it didn't facially discriminate against out-of-state producers.) Historically, the Court applied the balancing test from Pike v. Bruce Church, Inc. That test goes like this: When a neutral state law poses a substantial burden on interstate commerce, the law fails if its economic burdens are "clearly excessive in relation to the putative local benefits."

The Council, however, pitched a new approach. It argued that the Dormant Commerce Clause includes an "almost per se" rule that prohibits state laws that have the "practical effect of controlling commerce outside the state." The Court rejected this claim, saying that it lacked support in the Court's cases.

Alternatively, the Council claimed that Prop 12 failed the traditional Pike test. The Court rejected this claim, too, and for different reasons. Justice Gorsuch wrote for himself and Justices Thomas and Barrett that the Court was not equipped to balance the "incommensurable goods" under Pike, and that this is best left to the legislature. Justice Gorsuch wrote for himself and Justices Thomas, Sotomayor, and Kagan that the Council's complaint failed to allege a "substantial burden" on interstate commerce, so the Court shouldn't even get to the balancing. Chief Justice Roberts (concurring in part and dissenting in part) wrote for himself and Justices Alito, Kavanaugh, and Jackson that the Council alleged a "substantial burden" and that the Court should remand for balancing. (The Ninth Circuit dismissed the case based on lack of a substantial burden and therefore didn't balance.)

That's a little complicated, so let's try this:

-Five justices (Justices Thomas, Gorsuch, Sotomayor, Kagan, and Barrett) agreed that Prop 12 stays on the books.

-Six justices (Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, Kagan, and Kavanaugh) agreed that the core Pike test, including its balancing of economic burdens against putative benefits, remain the law for nondiscriminatory state actions.

-Four justices (Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson) said that Prop 12 created a substantial burden. They argued that the Court should consider not only "compliance costs," but also "market-wide consequences of compliance," in determining whether a state law creates a substantial burden.

-Justice Barrett separately agreed that Prop 12 created a substantial burden, but only if Pike balancing were workable in the first place. But she argued that it's not, at least in this case. (Justice Barrett didn't formally join any part of Chief Justice Roberts's opinion. She made this point (citing Chief Justice Roberts's opinion) in a separate concurrence.)

-Taken together, the last two bullets mean that five justices agree that the Court should consider both "compliance costs" and "consequential harms" in assessing whether a state law substantially burdens the interstate economy and thus triggers the balancing test.

-Four justices (Justices Gorsuch, Thomas, Sotomayor, and Kagan) said that Prop 12 didn't create a substantial burden on interstate commerce, and so there's no need to consider whether its economic burdens are excessive in relation to the putative local benefits.

-Three justices (Justices Gorsuch, Thomas, and Barrett) said that Pike's balancing test is unworkable. This approach would limit Pike to cases where a state law discriminates against interstate commerce or where a state law regulates the instrumentalities of interstate commerce (and not to cases where a state law doesn't discriminate). According to Justice Kavanaugh, this approach "would essentially overrule the Pike balancing test."

-Justice Kavanaugh wrote separately to argue that Prop 12 might violate the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.

State Price-Gouging Laws Don't Violate Dormant Commerce Clause for Products on Amazon

Steven D. Schwinn, University of Illinois Chicago School of Law

The Sixth Circuit ruled that enforcement of Kentucky's anti-price-gouging laws to Kentucky products sold on Amazon doesn't clearly violate the dormant commerce clause. The preliminary ruling allows the Kentucky AG to enforce the state's anti-price-gouging laws against Kentucky businesses who sell products on Amazon, even though Amazon rules mean that those businesses must sell their products for the same price to customers in different states.

The case, Online Merchants Guild v. Cameron, arose when Kentucky businesses started charging outsized prices for hand sanitizer, disinfecting wipes, masks, and other cleaning and COVID-protective products on Amazon. The state AG opened civil price-gouging investigations, and the businesses sued.

The businesses argued that application of the state's anti-price-gouging laws would require them to drop their prices for products sold in Kentucky and, under Amazon's rule that retailers sell their products for a single price to customers in different states, other states as well. They claimed that this meant that Kentucky's laws would apply extraterritorially and thus create a nationwide "price ceiling," in violation of the dormant commerce clause.

The district court agreed and granted a preliminary injunction. But the Sixth Circuit reversed.

The court held that any extraterritorial effect of the state's laws was due to Amazon, not the laws themselves, and that Amazon's rules broke any "direct or inevitable" link between the state laws and their effects:

It does not follow, however, that Kentucky's price-gouging laws are unconstitutional--a state law's effect on out-of-state commerce must be direct or inevitable to be invalid under the extraterritoriality doctrine. That is not the case here because the effect of Kentucky's price-gouging laws depends entirely upon Amazon's independent decisions in how it structures its online marketplace. If Amazon allowed for state-specific pricing or allowed third-party sellers to limit where their goods were sold--and no one contends that Amazon lacks the power to structure its marketplace in this fashion--then there would be no effect at all on interstate commerce (or at most the effect would be de minimis).

In other words, without Amazon's rule, the Kentucky AG could enforce state laws against these Kentucky businesses, reducing the prices they charge to Kentuckians, but still allowing them to charge outsized prices to customers in other states.

The court vacated the district court's preliminary injunction and remanded for further proceedings.

Court Strikes State Residency Requirement for Liquor Store Licenses

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Tennessee Wine and Spirits Retailers Ass'n v. Thomas that Tennessee's 2-year durational-residency requirement for retail liquor store license applicants violates the dormant Commerce Clause and is not saved by the Twenty-first Amendment.

The 7-2 ruling, authored by Justice Alito, is a strong endorsement of the Court's dormant Commerce Clause jurisprudence, which sets limits on states' economic protectionism and discrimination against interstate commerce.

Justice Alito, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh, wrote first that the residency requirement violated the dormant Commerce Clause. The Court said that while "[i]n recent years, some Members of the Court have authored vigorous and thoughtful critiques of" the dormant Commerce Clause,

the proposition that the Commerce Clause by its own force restricts state protectionism is deeply rooted in our case law. And without the dormant Commerce Clause, we would be left with a constitutional scheme that those who framed and ratified the Constitution would surely find surprising.

The Court went on to say that Tennessee's 2-year durational-residency requirement "plainly favors Tennesseans over nonresidents" in violation of the doctrine.

As to the Twenty-first Amendment, the Court said that despite "the ostensibly broad text of Section 2 . . . we have looked to history for guidance, and history has taught us that the thrust of Section 2 is to 'constitutionaliz[e]' the basic structure of federal-state alcohol regulatory authority that prevailed prior to the adoption of the Eighteenth Amendment." Under that reading, the Court said that "as recognized during that period, the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations."

In short, "Section 2 cannot be given an interpretation that overrides all previously adopted constitutional provisions," including the dormant Commerce Clause, and therefore Tennessee's residency requirement isn't saved by the Twenty-first Amendment.

Justice Gorsuch, joined by Justice Thomas, dissented. Justice Gorsuch argued that the plain text of the Twenty-first Amendment, the history, and early Court interpretations all point toward permitting state residency requirements:

But through it all, one thing has always held true: States may impose residency requirements on those who seek to sell alcohol within their borders to ensure that retailers comply with local laws and norms. In fact, States have enacted residency requirements for at least 150 years, and the Tennessee law at issue before us has stood since 1939. Today and for the first time, the Court claims to have discovered a duty and power to strike down laws like these as unconstitutional.

Fourth Circuit Upholds Federal Hate Crimes Statute Against As-Applied Commerce Clause Challenge

The Fourth Circuit this week rejected an as-applied Commerce Clause challenge to the Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act of 2009. The divided court (2-1) ruled that the Act, which criminalizes certain hate-crimes based on sexual orientation, fell within Congress's Commerce Clause authority.

Steven D. Schwinn, John Marshall Law School

As the court noted, this is the first federal appeals court ruling on "[w]hether the Hate Crimes Act may be constitutionally applied to an unarmed assault of a victim engaged in commercial activity at his place of work . . . ."

The case, United States v. Hill, turned on the Act's "jurisdictional element," which requires a commercial connection--but, importantly, by its plain terms not necessarily a "foreign" or "inter-state" commercial connection. It's that lack of a textual "foreign" or "inter-state" commercial connection that divided the majority and dissent. The majority held that the jurisdictional element, as applied to this case, fell within Congress's Commerce Clause authority, even without a specific textual required a "foreign" or "inter-state" commercial connection. The dissent said not.

The case arose when James Hill III physically and violently assaulted Curtis Tibbs, a co-worker at an Amazon fulfillment center, because Tibbs is gay. (Hill didn't deny this; indeed, he boasted about it.) Hill repeatedly punched Tibbs in the face, causing significant bruising, cuts, and a bloody nose. Tibbs left his shift to go to the hospital for treatment, and the facility shut down the area of the assault for 30 to 45 minutes to clean blood off the floor.

Because Tibbs worked as a "packer," preparing goods for interstate shipment, and because Virginia doesn't have a hate-crimes law that criminalizes assault because of sexual orientation, the federal government charged Hill under the Shepard & Byrd Act. The government relied on a "jurisdictional element" in the Act that requires that the defendant's behavior "interfere[d] with commercial or other economic activity in which the victim [was] engaged at the time of the conduct."

Hill was convicted, but the district court granted is motion for a judgment of acquittal, holding that the Act was unconstitutional as applied to Hill. The Fourth Circuit reversed.

The court ruled that the Hill's assault met the jurisdictional element (because Tibbs was packing goods for shipment in commerce), and that the jurisdictional element fell within Congress's Commerce Clause authority.

[W]hen Congress may regulate an economic or commercial activity, it also may regulate violent conduct that interferes with or affects that activity. Hence, if individuals are engaged in ongoing economic or commercial activity subject to congressional regulation--as Tibbs was at the time of the assault--then Congress also may prohibit violent crime that interferes with or affects such individuals' ongoing economic or commercial activity, including the type of bias-motivated assaults proscribed by the Hate Crimes Act.

The court rejected Hill's argument that the assault didn't have a substantial effect on commerce because the facility as a whole still met its shipments:

That Amazon was able to absorb the impact of Tibbs' absence without missing any key shipping deadlines and that the fulfillment center's performance during the shift impacted by Tibbs' assault was in-line with its performance during other shifts does not call into question this determination. On the contrary, the Supreme Court and this Court repeatedly have clarified that Congress may regulate interferences with commerce, even if the effect of the interference on interstate commerce in an individual case is "minimal." . . . .

Similarly, this Court has held that, in as-applied Commerce Clause challenges, "the relevant question . . . is not whether one particular offense has an impact on interstate commerce, but whether the class of acts proscribed has such an impact."

The court acknowledged the importance of the jurisdictional element in the case--and, by extension, to any congressional act--writing that the "Defendant has not identified any case--nor have we found any such case--in which a federal criminal statute including an interstate commerce jurisdictional element has been held to exceed Congress's authority under the Commerce Clause."

Judge Agee dissented, arguing that the jurisdictional element "does not limit the class of activities being regulated to acts that fall under Congress' Commerce Clause power" and that "the root activity . . . regulated in this case--a bias-motivated punch--is not an inherently economic activity." As to the jurisdictional element, Judge Agee argued that it is different than other jurisdictional elements in this statute and in other statutes, and that it sweeps beyond Congress's power to regulate inter-state or foreign commerce:

In contrast, [the jurisdictional element here] is a distinct outlier without an interstate or foreign commerce statutory nexus. Nor is the unrestricted phrase "commercial or other economic activity" one of the categories the Supreme Court has identified as an area Congress can regulate under its Commerce Clause power. By [the jurisdictional element's] plain terms, it contains no jurisdictional nexus to Congress' authority under the Commerce Clause that thus fails under Lopez to be a "jurisdictional element" that has "an explicit connection with or effect on interstate commerce." This textual difference is meaningful . . . .

Court Strikes the Entire Affordable Care Act

Judge Reed O'Connor (N.D. Tex.) today issued a sweeping and breathtaking ruling striking the entire Affordable Care Act. Judge O'Connor ruled that the individual mandate could no longer be supported by Congress's taxing power; that the individual mandate is not severable from the rest of the ACA; and that therefore the entire ACA must fail.

The case, Texas v. United States, arose after Congress passed the 2017 Tax Cuts and Jobs Act, which set the tax-penalty for noncompliance with the ACA's individual mandate at $0. Texas, a handful of other states, and a couple individuals sued, arguing that the individual mandate could no longer be supported by Congress's taxing power (as the Court held in NFIB), and, because it also couldn't be supported by Congress's Commerce Clause power (also as the Court held in NFIB), it was unconstitutional. Moreover, they argued that it was non-severable from the non-discrimination and community rating provisions of the ACA, and so therefore those provisions needed to fall, too.

The court agreed. Judge O'Connor ruled that the tax-penalty of the individual mandate could no longer be supported by Congress's taxing authority (in light of the $0 penalty in the 2017 tax act, which means that the penalty no longer raises money for the government, the touchstone for the taxing power). And because the mandate couldn't stand alone, without a tax penalty, because it can't be supported by the Commerce Clause, it is unconstitutional. But Judge O'Connor went a step farther and ruled that the individual mandate was non-severable from the entire ACA. The court looked to the statutory language (including congressional findings, which stated that the individual mandate was an essential part of the integrated ACA in order to ensure broad health insurance coverage and low costs), and the Court's ruling in NFIB to concluded that the entire Act was non-severable. As a result, the court struck the entire Act.

The ruling came as a declaratory judgment and summary judgment in favor of the plaintiffs, despite the fact that the plaintiffs originally sought only declaratory relief and a preliminary injunction. 

Unless stayed pending appeal (not in this ruling), the ruling gives cover to the government to start to dismantle the entire ACA (or at least those provisions that it hasn't already started to dismantle). 

District Court Rules Federal Criminal Ban on Female Genital Mutilation Unconstitutional

Steven D. Schwinn, John Marshall Law School

Judge Bernard A. Friedman (E.D. Mich.) ruled that the federal criminal statute banning female genital mutilation exceeded Congress's authority and was therefore invalid. The ruling dismisses those counts in an indictment against Michigan doctors accused of performing the procedure.

The federal criminal ban reads,

Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.

The government defended the statute under Congress's authority to enforce a treaty and its power to regulate interstate commerce. The court rejected both.

As to the treaty power, the court concluded that the statute wasn't rationally related to applicable provisions in the supporting treaty, the International Covenant on Civil and Political Rights. More, the court ruled that even if it were rationally related to the ICCPR, federalism principles restricted Congress from acting. That's because the U.S. entered the ICCPR with a reservation (valid under international law) that "this Convention shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by state and local governments . . . ." And because intrastate criminal law is a traditional area for the states (and not the federal government), the reservation itself restricts Congress from acting. (Judge Friedman suggested that under Bond Congress might have lacked authority even without the reservation--just because the federal statute intrudes on states' exclusive authority over "local criminal activity.")

As to the Commerce Clause, the court ruled that the statute failed: FGM is not commerce (the government produced no evidence that it's done for money); there's no jurisdictional element in the statute; congressional fact-finding on the commercial connection was sparse; and FGM is a local activity that, without more, has no actual connection to the interstate economy.

Congress could certainly go back and fix any of this (if Judge Friedman is upheld on appeal). For example, it could clarify that the ICCPR bans FGM, and remove its reservation. Or it could incentivize states to criminalize FGM. As to the Commerce Clause, it could add a jurisdictional element and fact-finding--exactly what it did after the Court struck the Gun Free School Zone Act in Lopez. (It's not clear why the jurisdictional element wasn't in the act--enacted after Lopez--in the first place.)

Seventh Circuit Upholds Wisconsin's Butter-Grading System

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit last week upheld Wisconsin's butter-grading system against Dormant Commerce Clause, due process, and equal protection challenges. The ruling means that Wisconsin's butter-grading system stays on the books.

The case, Minerva Dairy v. Harsdorf, took on Wisconsin's law for grading butter, which makes it unlawful "to sell . . . any butter at retail unless it has been graded." To satisfy this requirement, butter may be graded either by a Wisconsin-licensed grader, or by the USDA voluntary butter-grading program. The plaintiff, an Ohio butter producer, argued that the law violated the Dormant Commerce Clause, due process, and equal protection.

The Seventh Circuit disagreed. The court ruled that the law didn't discriminate against interstate commerce, and so didn't violate the Dormant Commerce Clause. (The court didn't even apply Pike v. Bruce Church balancing, because the law didn't discriminate on its face or in effect.) The court also said that Wisconsin's butter-grading-licensing standards, which require a person to come to Wisconsin to test to be a Wisconsin-certified butter-grader, didn't discriminate, either (even though a would-be butter-grader who lives in or close to Wisconsin can get there easier than a would-be grader who lives farther away).

The court rejected the due process and equal protection challenges, too, because the law satisfied rational basis review.

Court OKs State Internet Sales Tax, Overturns "Physical Presence" Requirement

Steven D. Schwinn, John Marshall Law School

The Supreme Court today, in South Dakota v. Wayfair, upheld South Dakota's sales tax on out-of-state sellers against a Commerce Clause (or, more precisely, Dormant Commerce Clause) challenge. The ruling opens the door for states to impose sales taxes on internet sellers who lack a physical presence in the state. The ruling also overturned a pair of cases requiring a seller's "physical presence" in a state before the state could tax it.

Justice Kennedy wrote for the Court, joined by Justices Thomas, Ginsburg, Alito, and Gorsuch.

The Court upheld South Dakota's sales tax on out-of-state sellers "as if the seller had a physical presence in the State." That qualifier was significant, because the Supreme Court had previously held in National Bellas Hess, Inc. v. Department of Revenue of Illinois and Quill Corp. v. North Dakota that a state can only impose a sales tax on a business that has a physical presence within the state. South Dakota's tax thus put the brick-and-mortar requirement in Bellas Hess and Quill squarely before the Court.

The Court struck it, and overturned those cases. The Court said that "Quill is flawed on its own terms." First, it wasn't a necessary interpretation of precedent; next, it creates market distortions by creating an incentive to avoid physical presence; and finally, it "imposes the sort of arbitrary, formalistic distinction that the Court's modern Commerce Clause precedents disavow . . . ." Moreover, internet commerce has changed things since the Court created the brick-and-mortar rule. And finally, the rule "is also an extraordinary imposition by the Judiciary on States' authority to collect taxes and perform critical public functions."

Justice Thomas concurred, arguing that "this Court's entire negative Commerce Clause jurisprudence" "can no longer be rationally justified."

Justice Gorsuch also concurred, similarly arguing "[w]hether and how much of [the Court's Dormant Commerce Clause jurisprudence] can be squared with the text of the Commerce Clause . . . are questions for another day."

Chief Justice Roberts dissented, joined by Justices Breyer, Sotomayor, and Kagan. He argued that this is a matter for Congress, given the stakes for the economy:

I agree that Bellas Hess was wrongly decided . . . . The Court argues in favor of overturning that decision because the "Internet's prevalence and power have changed the dynamics of the national economy." But that is the very reason I oppose discarding the physical-presence rule. E-commerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical presence rule. Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress.

Government Seeks to Strike Key Provisions of Obamacare

Steven D. Schwinn, John Marshall Law School

The federal government argued yesterday in the Texas Obamacare case that (1) Obamacare's individual mandate is now unconstitutional and (2) therefore the Obamacare pre-existing-conditions ("guaranteed issue") and "community rating" provisions must fall.

The filing (by the federal government as defendant in the case) is an unusual instance of the Justice Department refusing to defend a federal law in court. (Some states, led by California, have moved to intervene to defend the law.)

The filing is also notable for its attempt to pick off just three provisions of Obamacare--the individual mandate, the ban on pre-existing-conditions discrimination, and the community rating provision--while keeping the rest of the Act intact. (This contrasts with the plaintiffs' approach, which seeks to strike all of Obamacare. In this way, the federal government's position--as sweeping as it is--is nevertheless more modest than the position of Texas and the other plaintiffs in the case.)

Here's a summary of the federal government's argument:

1. The individual mandate as it stands effective January 2019 is unconstitutional. That's because Congress, in the Tax Cuts and Jobs Act, enacted earlier this year, eliminated the tax-penalty for not having health insurance beginning in January 2019. Without the tax-penalty, the individual mandate no longer can raise revenue for the federal government. If it can't raise revenue, it can't fall within Congress's power to tax. And, as the Court ruled in NFIB, it also can't fall within Congress's power to regulate interstate commerce. Therefore, the individual mandate, as it will read in January 2019, is unsupported by congressional authority, and is unconstitutional.

2. The requirements that health insurers accept individuals with pre-existing conditions (or the prohibition on discrimination by pre-existing conditions, the "guaranteed issue" provision) and that insurers charge rates within a particular range for a particular community (the "community rating" provision) are inseverable from the individual mandate. (This is the position that the federal government also took in defending the individual mandate in NFIB.) Here's why: Congress has authority under the Commerce Clause to prohibit discrimination and regulate insurance rates. But if Congress only enacted those provisions, without an individual mandate, rates would go through the roof. The only way to keep rates affordable is to require everybody (including people who are healthy now) to get into the insurance pool. That's the individual mandate. Thus, the individual mandate and the other two requirements go hand-in-hand in achieving Congress's goal under the ACA of keeping rates affordable. (The federal government also had a standing argument for why it's only challenging these two provisions: the individual plaintiffs in the case only alleged harms related to these two provisions, and not to the rest of Obamacare.)

3. Because the guaranteed-issue and community-rating provisions are inseverable from the unconstitutional individual mandate, they, too, must fall. But other key portions of Obamacare--including provisions "concerning various insurance regulations, health insurance exchanges and associated subsidies, the employer mandate and Medicaid expansion, and reduced federal healthcare reimbursement rates for hospitals"--are severable, and therefore can remain in place.

It's not clear from the filing whether and how this argument might affect other portions of Obamacare not mentioned, most notably the requirement that insurers allow parents to keep their children on their insurance until age 26.

The government opposed the plaintiffs' request for a preliminary injunction and instead argued that the court should issue declaratory relief, at least until January 2019.

Ninth Circuit Says California Medical Waste Management Act Violates Dormant Commerce Clause (but Officials get Qualified Immunity)

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled in Daniels Sharpsmart, Inc. v. Smith that California's Medical Waste Management Act likely violates the Dormant Commerce Clause, but that officials who imposed a fine under the Act enjoy qualified immunity against a money-damages suit.

The case arose when Daniels, a sharps-container developer, shipped its medical waste out of California for disposal. Daniels originally shipped to another state and incinerated the waste, but later switched to states that permitted waste disposal using other methods.

This didn't sit well with California regulators, who sought to enforce the state Act's requirements that all medical waste be treated by incineration and that "[m]edical waste transported out of state shall be consigned to a permitted medical waste treatment facility in the receiving state." Regulators told Daniels that his waste had to be incinerated, even if the law of another state permitted an alternative method, and that Daniels would be penalized it if didn't incinerate all of its biohazardous waste that originated in California. Daniels continued to ship waste out of California and dispose of it in other ways, and the California regulators imposed a hefty penalty. Daniels sued.

The Ninth Circuit ruled that the Act likely violated the Dormant Commerce Clause. The court applied the "direct regulation emanation" of the Dormant Commerce Clause, which forbids a state from regulating transactions that take place across state lines or entirely outside of the state's borders. Referencing circuit precedent, the court wrote:

Rather, California has attempted to regulate waste treatment everywhere in the country, just as it tried to regulate art sales and Nevada tried to regulate rules violations procedures everywhere in the country. Of course, that could also have the effect of requiring Daniels to run afoul of other states' regulation of medical waste disposal within their jurisdictions, if California law directed something different from their requirements.

Therefore, Daniels will likely succeed on its claim that the Department officials' application of the [Act] constitutes a "per se violation of the Commerce Clause." Were it otherwise, California could purport to regulate the use or disposal of any item--product or refuse--everywhere in the country if it had its origin in California.

But the court went on to hold that state officials enjoyed qualified immunity against Daniels's suit for monetary damages. That's because "a reasonable official, who is not knowledgeable about the arcane considerations lurking within the dormant Commerce Clause doctrine, could reasonably, if erroneously, believe that the Department could control what was done with California waste in another state."

The court reversed the lower court on this point, noting that the lower court wrongly applied law "at a high level of generality" when it concluded that "[t]he extraterritoriality doctrine has been clearly established for decades."

Second Circuit Says NY Can Use Surplus Highway Toll Revenue for Canals

Steven D. Schwinn, John Marshall Law School

The Second Circuit ruled that New York's practice of using surplus revenue from highway tolls to fund its canal system did not violate the Dormant Commerce Clause. The ruling means that New York can continue this practice.

The court ruled that Congress specifically approved the practice in the Intermodal Surface Transportation Efficiency Act of 1991. That Act authorizes state authorities to collect highway tolls without repaying the federal government (for federal financial aid to construct and improve highways in the first place) so long as it first used those funds for specified purposes under the Act. If so, then a state could use all excess toll revenues "for any purpose for which Federal funds may be obligated by a State under [Title 23]." This includes "historic preservation, rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals)." A separate provision--a "Special Rule"--paralleled this rule and added specific conditions for the New York State Thruway.

The court said that the ISTEA "permitted the Thruway Authority to allocate excess toll revenues (1) to any transportation facilities under the Thruway Authority's jurisdiction or (2) for any project eligible to receive federal assistance under Title 23." According to the court, this "plain language of the ISTEA manifestly contains . . . 'unmistakably clear' evidence of an intent to authorize the Thruway Authority to use excess highway toll revenues for canal purposes."

Because Congress validly authorized this under its Commerce Clause authority, it can't violate the Dormant Commerce Clause.

Sixth Circuit Strikes Tennessee's Discriminatory Retail Alcohol License Law

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled in Byrd v. Tennessee Wine & Spirits Retailers Ass'n that a state law requiring two-year state residency--and ten-year residency for renewal--for a retailer-alcoholic-beverage license violated the Dormant Commerce Clause.

The ruling, with a partial concurrence and partial dissent, further exposes tensions between the Commerce Clause and the Twenty-First Amendment in the Court's treatment of discriminatory state alcohol regulations.

Tennessee's law says that alcohol retailers have to have a license. In order to get one, they have to show that an individual retailer was a state resident for two years, or that a corporate retailer was completely owned by two-year residents. The residency requirement shoots up to ten years for license renewals.

The Sixth Circuit struck the requirements. The court said that the requirements were facially discriminatory against out-of-state economic interests, and that the state failed to show that nondiscriminatory alternative regulations could achieve the state's goals of protecting the health, safety, and welfare of state residents and using a higher level of oversight and control over liquor retailers.

The court noted a split in the circuits as to the interplay between the Commerce Clause and the Twenty-First Amendment under Bacchus Imports v. Dias and Granholm v. Heald. The ruling deepens that split.

Judge Sutton argued in partial dissent that "these modest requirements" were supported by "the text of the Twenty-first Amendment, the original understanding of that provision's relationship to the Commerce Clause, modern U.S. Supreme Court precedent, and a recent Eighth Circuit decision." Judge Sutton agreed with the majority, however, as to the application of the two-year residency requirement to 100% of a retailer's stockholders and as to the ten-year residency requirement for a renewal.

Tenth Circuit Upholds Prairie-Dog Protection Under Endangered Species Act Against Commerce Clause Challenge

Steven D. Schwinn, John Marshall Law School

The Tenth Circuit today rebuffed a challenge to the Endangered Species Act and ruled that Congress had authority to enact the Act under the Commerce Clause. The ruling in PETPO v. FWS upholds the Fish and Wildlife Service's regulation protecting Utah prairie dogs.

The ruling deals a(nother) blow to challengers of ESA regs that protect purely intra-state species and reaffirms federal authority to protect those species under the Commerce Clause. (Because the court held that the prairie-dog reg was authorized under the Commerce Clause, it did not separately address whether it's authorized under the Necessary and Proper Clause.)

We might keep an eye on this case and any others like it. If Judge Gorsuch is confirmed, he could tilt the balance on the Court against ESA regs--and in favor of yet more restrictions on congressional authority under the Commerce Clause. (Remember that Justice Scalia concurred in Gonzales v. Raich, the basis for the Tenth Circuit's ruling. Judge Gorsuch might not agree, or might see this case through the Lopez- and Morrison-lenses of the plaintiffs. Judge Gorsuch was not on the Tenth Circuit panel in this case.)

The court applied the test from Gonzales v. Raich, which upheld the federal prohibition on home-grown marijuana for medical use because it was part of a larger regulatory scheme (the federal Controlled Substances Act), which itself was authorized under the Commerce Clause. At the same time, the court specifically rejected PETPO's argument that it should consider the prairie-dog regulation only in isolation (like the Gun-Free School Zones Act in U.S. v. Lopez or the individual cause of action in United States v. Morrison)--not as part of the larger ESA scheme. By analyzing the reg under Raich (and not under the provision-specific approach in Lopez and Morrison), the court aligned with other circuits that have ruled on the question.

The court summarized its test:

In short, the Commerce Clause authorizes regulation of noncommercial, purely intrastate activity that is an essential part of a broader regulatory scheme that, as a whole, substantially affects interstate commerce (i.e., has a substantial relation to interstate commerce). Therefore, to uphold the challenged regulation here, we need only conclude that Congress had a rational basis to believe that such a regulation constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce.

The court rejected PETPO's contention that it shouldn't apply Raich, because PETPO lodged a facial challenge to the specific prairie-dog provision under Lopez and Morrison, and not "an application to a particular subset of activity, as in Raich." The court said,

the real crux of PETPO's challenge is not a challenge to any particular FWS regulation but to Congress's power to authorize regulation of the Utah prairie dog. Although PETPO is, in a sense, correct that the prohibition on take of the Utah prarie dog is "a particular challenged provision," this prohibition finds its place within the broader regulatory scheme of the ESA's protections of endangered and threatened species. More specifically, the prohibition at issue is an instance of Congress's broad authorization to use regulations to extend the take protections that endangered species enjoy to those listed as threatened.

The court said that "the Court in both Lopez and Raich looked past the larger enactment and characterized the Gun-Free School Zones Act as an independent statute."

The court also rejected PETPO's argument that the ESA "is a comprehensive scheme to provide for environmental conservation, not [to] regulate a market." The court said that this was based on too cramped a reading of Raich, which, the court said, doesn't require a "comprehensive economic scheme." Instead, Raich only required a "comprehensive regulatory scheme" that has a "substantial relation to commerce." The court said that the ESA prohibitions easily meet this standard, based on their plain economic effects (some of which PETPO itself raised as the harms that formed the basis of its suit).

The court went on to hold that Congress had a rational basis for thinking that the prairie-dog-protection reg constituted an essential part of the ESA, a comprehensive regulatory scheme, that, "in the aggregate, substantially affects interstate commerce."

 

Tenth Circuit: State is Immune From Federal Slavery Claim

Steven D. Schwinn, John Marshall Law School

The Tenth Circuit ruled in Mojsilovic v. State of Oklahoma that the state's sovereign immunity barred the plaintiffs' forced-labor claim under the federal Trafficking Victims Protection Reauthorization Act. The ruling ends this case.

The plaintiffs, Danijela and Aleksandar Mojsilovic, were hired by the University of Oklahoma on H-1B visas to conduct DNA sequencing and issue typing and to make transfectants and tissue cultures. Their supervisor, Dr. William Hildebrand, forced them to work longer hours than permitted by their visas, without pay, for his private corporation, Pure Protein, on threat of having their visas revoked. The Mojsilovic's sued under the TVPRA, seeking monetary damages under the Act; the University asserted sovereign immunity; and the district court dismissed the case.

The Tenth Circuit affirmed. The court ruled that Congress enacted the TVPRA under its Commerce Clause authority (and not its Thirteenth Amendment authority), and so could not abrogate state sovereign immunity under the Eleventh Amendment. In any event, the court said that any abrogation wasn't sufficiently clear in the language of the TVPRA. (The TVPRA applies to "whoever," without specifically naming "states.")

The ruling, while not surprising under the Court's abrogation doctrine, illustrates the impact of the rule that Congress cannot abrogate state sovereign immunity using its Commerce Clause authority. It means that states and state agencies can get away with trafficking, slavery, involuntary servitude, forced-labor, and the like without incurring TVPRA liability.

Congress could, of course, change this by making clear that the TVPRA is enacted under the Thirteenth Amendment and clearly abrogating state sovereign immunity.

Court Clears Path to Internet Tax Reporting Challenge

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Direct Marketing Ass'n v. Brohl that out-of-state retailers can move forward with their challenge to Colorado's requirement that the retailers notify Colorado customers of their Colorado sales and use tax burden and report tax-related information to those customers and to the Colorado Department of Revenue.

The case tests a state's best efforts at collecting sales and use taxes for out-of-state and internet purchases by its residents, given the long-standing rule that a state cannot tax out-of-state and internet retailers directly.

The underlying issue goes back to 1967, when the Court ruled in National Bellas Hess, Inc. v. Department of Revenue of Illinois that states cannot require a business to collect use taxes (the equivalent of sales taxes for out-of-state purchases) if the business does not have a physical presence in the state. That rule was based on the Dormant Commerce Clause. The Court reaffirmed that rule in 1992 in Quill Corp. v. North Dakota.

But that rule has created a significant loss of revenue for states, now that so many (and dramatically increasing) sales go through the internet, to out-of-state online retailers. The rule means that states cannot collect use taxes from those retailers.

So some states, like Colorado, implemented information and reporting requirements. For example, Colorado's law requires out-of-state retailers to inform its in-state customers of their use tax burden and to report tax-related information to Colorado tax authorities.

Out-of-state retailers sued, arguing that Colorado's requirements violated the Dormant Commerce Clause. The district court ruled in their favor, but the Tenth Circuit reversed, holding that the suit was barred by the Tax Injunction Act. In a relatively short and simple opinion today, the unanimous Court reversed, holding that the Tax Injunction Act did not bar the suit (because the Act only bars suits against a tax "assessment, levy or collection," and not information and reporting requirements).

The Court's ruling opens the door to the out-of-state retailers' challenge to Colorado's information and reporting requirements. If the district court is right, even these modest efforts violate the Dormant Commerce Clause--and create an even bigger headache for states trying to collect use taxes on their citizens' out-of-state and internet purchases.

On the other hand, Justice Kennedy signaled today in concurrence that the Court may be willing to reassess its Bellas Hess and Quill Corp. rule (or at least that the Court should reassess the rule) in light of the technological changes we've seen in the last 25 years (and the proliferation of online retailers) and the fact that the Dormant Commerce Clause changed enough between the two cases to render the Quill ruling questionable. (Justice Kennedy reminds us that three Justices upheld Bellas Hess in Quill on stare decisis grounds alone, and that the majority recognized that Bellas Hess stood on weak ground.)

Bellas Hess and Quill Corp. go to state use taxes, not information and reporting requirements like Colorado's. Still, the retailers' challenge to Colorado's information and reporting requirements could put Quill on the chopping block. (At least the district court decision striking the requirements relied on Quill.)

If so, this case (in its next round) could give the Supreme Court a chance to reassess the Quill rule and give states more latitude in collecting use taxes from out-of-state and internet retailers.

No Federal Cause of Action Against State Officer under FLSA

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled today in Michigan Corrections Organization v. Michigan Dep't of Corrections that the federal courts lacked subject matter jurisdiction over a claim by Michigan correctional officers against the Corrections Department Director under the federal Fair Labor Standards Act. The court dismissed the federal case.

While the case marks a defeat for the workers (and others who seek to enforce the FLSA against a state), the plaintiffs may be able to re-file in state court. (They brought a state claim in federal court, along with their FLSA claim, and, if there are no other bars, they may be able to revive it in a new state proceeding.)

Correction officers filed the suit, claiming that they wre denied pay for pre- and post-shift activities (like punching the clock, waiting in line for security, and the like) in violation of the FLSA. They sued the Department Director in his official capacity for denied overtime pay and declaratory relief.

The Sixth Circuit rejected the federal claims. The court ruled that the Director enjoyed Eleventh Amendment immunity against monetary damages, and that Congress did not validly abrogate Eleventh Amendment immunity through the FLSA (because Congress enacted the FLSA under its Commerce Clause authority). The court rejected the plaintiffs' contention that Congress enacted the FLSA under its Fourteenth Amendment, Section 5 authority to enforce privileges or immunities against the states (which, if so, would have allowed Congress to abrogate Eleventh Amendment immunity). The court said that the Privileges or Immunities Clause (after The Slaughter-House Cases) simply can't carry that weight--that wages are not a privilege or immunity of national citizenship.

The court went on to reject the plaintiffs' claim for declaratory relief under the FLSA, Section 1983, and Ex Parte Young. The court said that the FLSA "does not provide a basis for this declaratory judgment action." That means that the plaintiffs can't get declaratory relief from the statute itself, and, because the FLSA doesn't provide for private enforcement by way of declaratory relief, the plaintiffs can't get Section 1983 or Ex Parte Young relief, either.

Ninth Circuit Upholds Arizona Bar Reciprocity Rule

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit yesterday upheld Arizona's reciprocal bar licensing rule against a host of federal constitutional claims. The ruling means that Arizona's rule stays in place.

At issue was Arizona's Rule 34(f), which permits admission to the state bar on motion for attorneys who are admitted to practice in states that permit Arizona attorneys to be admitted on a basis equivalent to Arizona's, but requires attorneys admitted to practice law in states that don't have such reciprocal admission rules to take the bar exam.

According to the National Conference of Bar Examiners and the ABA, just less than half the states and jurisdictions offer reciprocal admissions under this kind of rule.

Plaintiffs challenged the rule under the Equal Protection Clause, the Fourteenth Amendment Privileges or Immunities Clause, Article IV Privileges and Immunities, the Dormant Commerce Clause, and the First Amendment. The court rejected all of these claims.

As to equal protection, the court applied rational basis review and said that the state had legitimate interests in regulating its bar and in ensuring that its attorneys are treated equally in other states.

As to Article IV Privileges and Immunities and the Dormant Commerce Clause, the court said that the rule didn't discriminate against out-of-state attorneys--that it was a neutral rule that treated all attorneys alike--and that it advanced substantial state interests (the same as those above). The rule's neutrality also drove the result in the plaintiffs' Fourteenth Amendment privileges or immunities claim, because the right to travel isn't implicated (it can't be, if everybody is treated alike).

As to the First Amendment, the court applied the time-place-manner test and upheld the rule. The court flatly rejected the plaintiffs' right of association and right to petition claims.

Supremes to Consider State Tax Credits for Out-of-State Income

Steven D. Schwinn, John Marshall Law School

The Supreme Court will hear oral arguments tomorrow in Comptroller v. Wynne, the case testing the scope of a state's authority to tax the out-of-state income of its residents. In particular, the case asks whether a state can provide a credit for income tax paid to other states against a resident's state income tax without also providing a credit against that resident's county income tax. Here's an exerpt from my preview of the case for the ABA's Preview of United States Supreme Court Cases:

FACTS

Maryland imposes a “state income tax” and a “county income tax” on all of the income earned by a Maryland resident, even income earned out of state. (For those subject to the state income tax but not the county income tax, because they live out of state but earn income in Maryland, the state imposes a “Special Non-Resident Tax,” or “SNRT.”) That means that a Maryland resident who earns income out of state pays the Maryland “state income tax,” the Maryland “county income tax,” and the state income tax of the other state on that income. Maryland allows an off-setting credit for income tax on out-of-state income tax paid in another state, but only as to the Maryland state income tax, not as to the Maryland county income tax. (Maryland used to allow the off-setting credit as to the state income tax and the county income tax. But in 1975, the legislature amended the state tax code to eliminate the credit as to the county income tax.)

An example may help. (This comes from the Maryland Court of Appeals ruling in this case.) Suppose that Maryland imposes a state income tax of 4.75 percent on all income earned by its residents, a county income tax of 3.2 percent on all income earned by its residents, and an SNRT of 1.25 percent on the income earned by non-residents in Maryland. Suppose that Pennsylvania imposes the exact same taxes at the exact same rates.

Suppose that John lives in Maryland and earns $100,000 per year. Suppose he earns half of his income from activities in Maryland and half of his income from activities in Pennsylvania. If so, John owes $4,750 (or .0475 x $100,000) in Maryland state income tax and $3,200 (or .032 x $100,000) in Maryland county income tax, for a total of $7,950 for all Maryland taxes.

At the same time, John also owes $2,375 (or .0475 x $50,000) in Pennsylvania state income tax and $625 (or .0125 x $50,000) in Pennsylvania SNRT tax for a total of $3,000 for all Pennsylvania taxes.

Based on John’s tax owed to Pennsylvania, John qualifies for a Maryland state tax credit in the amount of $2,375 (the maximum allowable credit under the Maryland tax code, given the assumptions in this example). That means that John owes a total Maryland tax of $5,575, and John’s total state income tax burden is $8,575 (or $5,575 for all Maryland state taxes plus $3,000 for all Pennsylvania state taxes).

(Note that John’s total state tax burden is $625 more than the total state income tax burden for an individual, let’s call her Mary, who earned the same amount of income, but only in Maryland. Mary would only owe $7,950 in Maryland state taxes—the same as John’s Maryland state tax burden without the credit for taxes paid to Pennsylvania.)

In the 2006 tax year, Brian and Karen Wynne found themselves in a position like John’s—that is, paying state income taxes in other states, but not receiving a credit toward their Maryland county tax. Brian and Karen Wynne are a married couple living in Howard County, Maryland. Brian Wynne was one of seven owners of Maxim Healthcare Services, Inc., a company that does a national business providing healthcare services. Maxim is an S-corporation under the Internal Revenue Code, which means that Maxim’s income is imputed (or “passed through”) to its owners for federal income tax purposes. Maryland also accords pass-through treatment to the income of an S-corporation. In 2006, Maxim earned income in 39 states and, as an S-corporation, allocated to each owner a pro rata share of the taxes paid in each state.

The Wynnes reported Brian Wynne’s income from Maxim on their 2006 Maryland state tax return. The Wynnes claimed a credit based on Brian’s pro rata share of state and local income taxes paid to other states.

The Maryland Comptroller made a change in the computation of the local tax owed by the Wynnes and revised the credit for taxes paid to other states. This resulted in a deficiency in the Maryland taxes paid by the Wynnes, and they appealed. After exhausting their administrative appeals, the Wynnes appealed to the Maryland Tax Court, where they argued that the limitation on the credit to the Maryland state tax (which did not extend to the Maryland county tax) for tax payments made to other states discriminated against interstate commerce in violation of the Dormant Commerce Clause of the United States Constitution. The Tax Court rejected the argument, and the Wynnes appealed, until the Maryland Court of Appeals, the state high court, agreed. This appeal followed.

CASE ANALYSIS

While the Commerce Clause gives Congress authority to regulate interstate commerce, the so-called Dormant Commerce Clause restricts the states from discriminating against interstate commerce. (The Dormant Commerce Clause is not in the Constitution as such. Instead, the Court infers it from the Commerce Clause and federalism principles.) One way that a state might discriminate against interstate commerce is through its tax scheme. When this happens, the Court uses a four-part test first articulated in Complete Auto Transit, Inc. v. Brady. 430 U.S. 274 (1977). Under that test, a state tax does not violate the Commerce Clause if

1. [the tax] is applied to an activity with a substantial nexus to the taxing state;
2. it is fairly apportioned so as to tax only the activities connected to the taxing state;
3. it does not discriminate against out-of-staters; and
4. it is fairly related to services provided by the state.

The Maryland Court of Appeals held that the Maryland tax scheme violates the second and third prongs of this test. The court ruled that the tax scheme was not fairly apportioned, because it amounted to double-taxation of income. The court ruled that the scheme discriminated against out-of-staters, because it favors individuals who do business only in Maryland over individuals who do business across state lines.

The parties disagree over whether and how the Complete Auto test applies to the Maryland tax scheme for individual income taxes passed through an S-corporation. (That last part is important, because, as described below, different rules may apply to a state tax scheme for corporate income taxes owed by a C-corporation.) They also disagree over the application of the time-honored principle that states can tax all the income of their residents, even income earned in other states.

Maryland argues first that states have authority to tax all income of their residents, including income earned outside the state’s borders. The state says that this authority is based on the taxpayer’s domicile, not the source of his or her income, and it claims that the state’s authority to tax its residents is justified based on the substantial benefits that residents receive from the state. The state contends that it has designed its income tax system to ensure that all Maryland residents contribute to the benefits that the state offers those residents. In particular, the state says that the tax credit for out-of-state income tax is designed to reduce Maryland tax payments for residents earning income outside the state while at the same time requiring those residents to pay some income tax to support state and local government programs.

The state argues that the Maryland Court of Appeals ruling—compelling Maryland to give a credit for tax payments to other states against both the state income tax and the county income tax—would mean that certain Maryland taxpayers could take advantage of state and local benefits “without contributing any income taxes in return.” The state claims that this is particularly unjustified, because Maryland taxpayers can exercise their political power within Maryland to change the state tax system. (In contrast, the state argues, other tax schemes invalidated by the Supreme Court involved disproportionate income taxes on nonresidents, who did not have political power within the taxing state.) The state says that “Maryland’s system simply asks something more of the State’s own citizens,” and that those citizens can work through the political process to change it, if they like.

The state argues next that the Maryland Court of Appeals ruling would undermine the principle that a state can tax all the income of its residents, wherever earned. It says that the ruling effectively means that a state is barred from taxing its residents’ out-of-state income to the extent that another state has already taxed that income. This, in turn, means that a state’s authority to tax its residents’ income is subordinate to another state’s authority to tax that income. The state contends that this does not square with the general rule that a state can tax all its residents’ income. It also says that this is not supported by the Constitution, which treats all states equally for this purpose and does not provide a priority of states’ authority to tax.

The state claims further that no principle of double taxation bars Maryland from denying a credit toward the Maryland county tax. It says that there is no problem with double taxation so long as both sovereigns have valid authority to impose the taxes that result in double taxation. It claims that this rule is consistent with the principle that a state can impose taxes to pay for a fair share of services, and the reality that “states do significantly more for their residents than they do for taxpayers who simply earn income within their territory.”

Finally, the state argues that the Maryland Court of Appeals wrongly applied the standard under Complete Auto Transit, Inc. v. Brady. It says that the court wrongly looked at the taxes that the Wynnes paid to all states, and not the taxes they paid only to Maryland. The state contends that the Maryland scheme, taken on its own, is completely neutral with respect to interstate commerce, and that a higher overall tax burden (as illustrated in the example above) is only due to the accident of two taxing sovereigns simultaneously exercising their valid taxing authorities. Moreover, the state claims that the Maryland Court of Appeals was wrong to conclude that the Maryland tax is not fairly apportioned. It says that the Maryland tax is based on Maryland residency, and that there is no need for it to be apportioned—indeed, that residency cannot be apportioned.

The federal government, weighing in as amicus curiae in support of Maryland, adds that Wynne is wrong to focus on whether the Commerce Clause requires states to offer credits for out-of-state income taxes paid by corporations. (Wynne’s argument on this point is summarized below.) The government says that C-corporations have a different relationship to, and receive different benefits from, the state than individuals (taxed as an S-corporation)—and that corporate income tax is different than personal income tax. The government contends that this means that the Commerce Clause analysis for these different types of taxes might be different. Moreover, the government says that it is an open question whether states must apportion income of resident corporations by providing credits for out-of-state income tax.

Wynne argues first that the Maryland tax scheme violates the Commerce Clause. He says that the scheme results in double taxation of out-of-state income as a result of engaging in interstate commerce. He says that the Court has long invalidated that kind of tax.

Wynne argues next that the state applies the wrong test. Wynne says that the state never applies the Complete Auto test and instead “tries to float above the Commerce Clause jurisprudence” to find an exception to the rule that a state may not double tax interstate commerce. He claims that the state’s reliance on its sovereign authority to tax its residents is misplaced, because the Court has struck state taxes—even taxes on residents—that violate the Commerce Clause. He contends moreover that this reliance is misplaced, because the Court’s jurisprudence has never turned on labels (like “residency”); instead it turns on whether a tax substantially affects interstate commerce. And Wynne says that Maryland’s scheme has a substantial effect on interstate commerce, because, as here, “it discourages interstate activity by a corporation that operates in dozens of States.”

Wynne argues that the state is wrong to say that it can double-tax income in order to ensure that residents pay for state services. He claims that he would still pay substantial state income taxes even with a credit against his county tax, and that he pays all manner of other state taxes that go to support state services. And Wynne contends that Maryland and other states provide extensive services to resident corporations, but that, under Supreme Court precedent, they cannot double-tax them. He says that this shows that Maryland’s argument about paying for services “proves too much.”

Finally, Wynne argues that the state’s position would have a “bizarre result.” He says that the state’s position means that states could not double-tax resident C-corporations, but could double-tax resident S-corporations. He claims that this makes no sense, given that each kind of corporation engages in interstate commerce.

SIGNIFICANCE

This case could have immediate and important fiscal significance for Maryland and states and municipalities around the country. For Maryland, a ruling affirming the Maryland Court of Appeals could cost the state between $45 and $50 million per year in tax revenue, and as much as $120 million in retroactive tax-refund claims. Around the country, such a ruling could affect more than 2,000 municipal income taxes nationwide that might not provide credits for out-of-state income taxes. States could seek to make up losses by increasing income tax rates (or imposing or increasing other taxes), but that option could be politically difficult.

More generally, the case potentially tests the long-standing principle that a state may tax all the income of its residents, even if earned out of state. But this principle is well established and universally relied upon. The Court is unlikely to rule in a way that threatens it.

Finally, the ruling of the Maryland Court of Appeals is in tension with other state-court rulings on similar (but not exactly the same) issues. This case will settle the matter, and tell us whether a state must provide a credit against all aspects of the state income tax.

CAC Examines Roberts at 10

The Constitutional Accountability Center is examining Chief Justice John Roberts's first decade in office in a series of posts and articles called Roberts at 10. Here's the intro.

Brianne Gorod, the CAC's appellate counsel, posted most recently on Chief Justice Roberts and federal power, in particular, NFIB. Here's her conclusion:

[I]t is nonetheless clear that the Chief Justice is concerned about the scope of federal power and, in particular, the breadth of the federal regulatory state . . . . And while Chief Justice Roberts may not have the same appetite to change the law in these areas as Chief Justice Rehnquist had, it also seems clear that Chief Justice John Roberts's views on the Commerce Clause and the Spending Clause aren't exactly what Judge Roberts presented them to be at his confirmation hearing in 2005. Just how different they are . . . remains to be seen. But supporters of the Affordable Care Act shouldn't give Chief Justice Roberts too much credit for his decision in NFIB. It's complicated.

Ninth Circuit Upholds Local Drug Disposal Requirement

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled in PRMA v. County of Alameda that the County's drug disposal ordinance--which requires any prescription drug producer who sells, offers for sale, or distributes drugs in Alameda County to collect and dispose of the County's unwanted drugs--did not violate the Dormant Commerce Clause. The ruling ends the plaintiffs' challenge to the ordinance, with little chance of a rehearing en banc or Supreme Court review.

The case involves Alameda County's Safe Drug Disposal Ordinance, which requires any prescription drug producer who sells, offers for sale, or distributes drugs in the County to operate and finance a Product Stewardship Program. That means that the producer has to provide for the collection, transportation, and disposal of any unwanted prescription drug in the County, no matter which manufacturer made the drug. The plaintiffs, industry organizations, including a non-profit trade organization representing manufacturers and distributors of pharmaceutical products, challenged the Ordinance under the Dormant Commerce Clause.

The Ninth Circuit affirmed a lower court's grant of summary judgment in favor of the County. The court said that the Ordinance did not discriminate on its face or in application against out-of-state manufacturers--that it applied equally to all manufacturers, both in and out of the County. The court noted that three of PRMA's members had their headquarters or principal place of business, and two others had facilities, in Alameda County and so were effected equally by the Ordinance. This means that all the costs of the Ordinance weren't shifted outside the County (as the plaintiffs argued) and that at least some of those affected had a political remedy (and thus were not "restrained politically," as in United Haulers.)

The court then applied the balancing test in Pike v. Bruce Church, Inc., and concluded that the Ordinance's benefits (environmental, health, and safety benefits that were not contested on the cross-motions for summary judgment) outweighed any burden on interstate commerce (the plaintiffs provided no evidence of a burden on the interstate flow of goods).

This is almost certainly the end of the plaintiffs' challenge: the ruling is unlikely to get the attention of the en banc Ninth Circuit or the Supreme Court, if the plaintiffs seek rehearing or cert.