Constitutional Law Prof Blog

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.

SCOTUS Grants Certiorari on New York City Gun Regulation

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court has granted certiorari in New York State Rifle & Pistol Association Inc. v. City of New York, New York regarding a New York City regulation that allows  a person having a premises license  for handguns to “transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately,”  but further defines an "authorized" range/shooting club as limited to facilities located in New York City. 

Recall that  the Second Circuit unanimously upheld the regulation. On the Second Amendment challenge, the opinion for the panel by Judge Gerald Lynch tracked the analytic structure articulated by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. Assuming that the Second Amendment applied, the court concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' "  Thus, this grant of certiorari has the potential to determine the level of scrutiny to be applied to gun regulations, a question left open by the Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).

In addition to the Second Amendment issue, the petition for certiorari also challenges the regulation on the basis of the dormant commerce clause and the "right to travel."  On these challenges, the Second Circuit noted that the plaintiffs did not convincingly allege there were problems implicating the crossing of state lines.

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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.

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.

Second Circuit Upholds NYC's Premises Handgun License Restriction

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in New York State Rifle & Pistol Ass'n v. City of New York, a unanimous panel of the Second Circuit, affirming the district judge, rejected a constitutional challenge to a New York City regulation regarding "premises license" for a handgun. Under 38 RCNY § 5-23, a person having a premises license “may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately.” The definition of "authorized" range/shooting club, however, includes a limit to facilities located in New York City and is the essence of the plaintiffs' challenge.  The New York State Rifle & Pistol Ass'n, as well as three individual plaintiffs, argued that this limitation is unconstitutional pursuant to the Second Amendment, the dormant commerce clause, the right to travel, and the First Amendment. Their specific arguments centered on the two instances: that one plaintiff was prohibited from taking his handgun to his second home in Hancock, New York; and that all plaintiffs wanted to take their handguns to firing ranges and competitions outside of New York City. 

On the Second Amendment challenge, the opinion for the panel by Judge Gerald Lynch tracked the analytic structure articulated by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. Assuming that the Second Amendment applied, the court concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' "  The court found that the prohibition of a plaintiff from taking the handgun to his second home was not a substantial burden: he could have a handgun at his second home if he applied to that county and noted that the plaintiff did not even estimate the money or time it would cost to obtain a second premises license and handgun. Likewise, the court found that limiting their training opportunities to New York City - - - given that there are at least 7 training facilities in New York and one in each borough - - - was not a substantial burden. Moreover, "nothing in the Rule precludes the Plaintiffs from utilizing gun ranges or attending competitions outside New York City, since guns can be rented or borrowed at most such venues for practice purposes."

In applying intermediate scrutiny, the court found that public safety was an important interest served by the regulation. The court referred to a detailed affidavit by the Commander of the License Division who

explained that premises license holders “are just as susceptible as anyone else to stressful situations,” including driving situations that can lead to road rage, “crowd situations, demonstrations, family disputes,” and other situations “where it would be better to not have the presence of a firearm.” Accordingly, he stated, the City has a legitimate need to control the presence of firearms in public, especially those held by individuals who have only a premises license, and not a carry license.

Additionally, the city had an interest in enforcing the premises license - - - which again is distinct from a carry license - - - and under a prior rule allowing transport to ranges outside the city the Commander's affidavit concluded this had made it “too easy for them to possess a licensed firearm while traveling in public, and then if discovered create an explanation about traveling for target practice or shooting competition.”

After finding the regulations survived the Second Amendment, the court's treatment of the dormant commerce clause, right to travel, and First Amendment issues was more succinct. For both the dormant commerce clause and right to travel arguments, one of the most obvious problems in the plaintiffs' arguments was their failure to convincingly allege issues regarding crossing state lines. Under the commerce clause analysis, there was no showing that the city or state was engaging in protectionist measures and, as in the Second Amendment analysis, the plaintiffs were "free to patronize firing ranges outside of New York City, and outside of New York State; they simply cannot do so with their premises-licensed firearm." Similarly, the plaintiffs could travel, they simply could not bring their handgun licensed for a specific premises with them.

On the First Amendment, the court rejected the argument that being "forced" to join a gun club in New York City or not being allowed to join a gun club outside of the city qualified as expressive association. But even if it did, the rule does not mandate or forbid joining a specific club, again, the New York City rule "only their ability to carry the handgun that is licensed for a specific premises outside of those premises."

Thus, the Second Circuit rejected constitutional challenges that essentially sought to broaden a premises-only license into a carry-license for handguns.

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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.

Ninth Circuit Says California's Prorator Registration Law Likely Violates Dormant Commerce Clause

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled yesterday that California's prorator license law likely violates the Dormant Commerce Clause. In the same ruling, the court held that California's mandatory disclosure requirements likely did not violate the First Amendment, and that the case did not warrant Younger abstention. The court sent the case back for further proceedings.

The case, Nationwide Biweekly v. Owen, arose when California prosecutors and regulators targeted Nationwide Biweekly Administration for fraud investigations involving one of its mortgage-payoff products. Here's how it works: a consumer would pay to Nationwide his or her monthly mortgage bill every two weeks, instead of paying to the lender directly every month. Nationwide would then pay the lender every month. This meant that a consumer would pay to his or her lender, through Nationwide, an extra monthly payment each year and thus pay off the loan sooner. Nationwide advertised the product as a "100% savings," but failed adequately to disclose the discount rate (based on the time-value of money) and fees for the product. So what appears to be a cost-free (and thus savings-only) product in fact is not cost-free.

The Monterey County District Attorney's Office sent Nationwide a letter about the practice and alleged that Nationwide was violating several California laws. In particular, the DA's office wrote that Nationwide was violating two provisions that required it to say that it's not affiliated with the lender in any solicitation to consumers for its product. The letter also said that Nationwide was violating California's "prorator" registration law, which required a "prorator" (a "person who, for compensation, engages in whole or in part in the business of receiving money or evidences thereof for the purpose of distributing the money or evidences thereof among creditors in payment or partial payment of the obligations of the debtor") to obtain a license. But under California law, such a license is only available to a corporation if the corporation is "organized under the laws of this State for that purpose." The Commissioner later sent Nationwide a letter notifying the corporation that it was investigating Nationwide's unlicensed business activity.

Nationwide filed suit in the Northern District, seeking to enjoin enforcement of the disclosure requirements by the DA. A Nationwide subsidiary later filed suit in the Northern District seeking to enjoin enforcement of the registration requirement against the Commissioner. The court rejected Nationwide's motion for a preliminary injunction in both cases, and Nationwide filed notices of appeal.

About a month after the opening appellate briefs were filed, the DA and the Commission filed a joint enforcement suit in California Superior Court. The district court dismissed both federal cases under Younger, and Nationwide appealed.

The Ninth Circuit ruled first that Younger abstention was not appropriate, because "before the date that the state case was filed, the district court had already conducted proceedings of substance on the merits." In particular, the court "spend a substantial amount of time evaluating the merits of the cases in considering and denying (in a detailed and reasoned order) Nationwide's motions for preliminary injunctions."

The court went on to hold that Nationwide was unlikely to succeed on its First Amendment claim. It ruled that under Zauderer, the "required disclaimers--short, accurate, and to the point--are reasonably related to California's interest in preventing . . . deception."

Finally, the court said that California's licensing requirement likely violated the Dormant Commerce Clause, because California's requirement makes in-state incorporation a prerequisite to getting a license to engage in interstate commerce.

Judge Montgomery argued in dissent that the federal proceedings were still at an embryonic stage and the court should have abstained under Younger.

Seventh Circuit Upholds Chicago's Puppy-Mill Ban

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit upheld Chicago's "puppy mill" ordinance, which limits the sources from which city-licensed pet stores may obtain certain pets for resale, against a challenge under the Illinois Constitution's home-rule provision and the federal dormant Commerce Clause. The ruling leaves the ordinance in place.

Chicago's ordinance says that pet retailers in the city "may offer for sale only those dogs, cats, or rabbits" obtained from an animal control or care center, pound, or kennel operated by local, state, or federal government or "a humane society or rescue organization." The ordinance means that pet stores can't get their animals from large, mill-style breeders. Chicago adopted the law in order to protect against the "economic and emotional burdens for pet owners and [the] financial costs on the City as owners abandon their physically or emotionally challenged pets or surrender them to the [city shelter]."

Two Chicago pet stores and a Missouri dog breeder sued, arguing that the ordinance exceeded Chicago's authority under the Illinois Constitution's home-rule provision and violated the federal dormant Commerce Clause.

The Seventh Circuit disagreed. As to the home-rule argument, the court said that the Illinois Constitution permits Chicago to regulate in an area, concurrently with the state, so long as the General Assembly doesn't "specifically limit" it or "specifically declare the State's exercise to be exclusive." Because state law doesn't restrict, but actually preserves, municipal power to regulate animal care and welfare, the court said that Chicago's ordinance doesn't exceed its home-rule authority.

As to the dormant Commerce Clause, the court said that it didn't even apply, because Chicago's ordinance doesn't discriminate against interstate commerce. The court ruled that circuit law said that a state or local law that doesn't discriminate on its face or in effect doesn't even implicate the dormant Commerce Clause. "No disparate treatment, no disparate impact, no problem under the dormant commerce clause." The court therefore declined to apply Pike balancing, and ruled that the ordinance easily satisfied the default rationality review.

Judge Hamilton dissented in part, arguing that the court should have applied Pike balancing, because Dep't of Revenue of Kentucky v. Davis and United Haulers Ass'n v. Oneida-Herkimer Solid Waste clarified that "even nondiscriminatory burdens on commerce" are subject to Pike balancing and "may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice." Judge Hamilton also argued that the majority applied an overly rigid pleading standard by not crediting the plaintiffs' allegations in the complaint that Chicago's ordinance would disparately impact out-of-staters.

States Lack Standing to Sue Over California's Egg Law

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled in Missouri ex rel. Koster v. Harris that six states lacked standing to sue California over its laws protecting hens that lay eggs. The ruling dismisses the case in favor of California (and its egg laws), unless and until the plaintiffs amend their complaint.

The plaintiffs, six egg-producing states, sued California after that state enacted a law setting certain standards for egg-laying hens. (The law bans the sale of eggs in the state by hens that are kept in cages where they can't lay down, stand up, extend their limbs, and turn around.) The plaintiffs alleged parens patriae standing on behalf of egg farmers in their states.

The Ninth Circuit ruled against them. The court said that the states couldn't show "an interest apart from the interests of particular private parties," the first of two additional elements of parens patriae standing (over and above the normal elements of standing). (The second additional element, not at issue here, is "[t]he State must express a quasi-sovereign interest.") The court held that the states didn't allege that California's law harmed their entire population, and that those affected (the egg farmers) could bring their own suit against California. The court rejected the plaintiffs' claim that the California law would cause a fluctuation in the price of eggs and thereby harm all consumers. It also rejected the claim that the plaintiffs had standing because California's law was discriminatory. (It wasn't; it applies to all hens, wherever they live. The lack of discrimination in the law also goes to the merits (although not at issue yet): under the Dormant Commerce Clause, a nondiscriminatory law is upheld only if its burdens on interstate commerce outweigh its benefits--a relatively low standard.)

The court instructed the district court to dismiss the case without prejudice, however, allowing the states to amend their complaint.

Third Circuit Says City is Regulatory, not Market Participant, When Awarding Tax Subsidies

Steven D. Schwinn, John Marshall Law School

The Third Circuit ruled in Associated Builders v. City of Jersey City that the City's efforts to enforce labor standards through its tax subsidies is subject to challenge under the National Labor Relations Act, ERISA, and the dormant Commerce Clause. In particular, the court said that Jersey City acted as a regulator, not a market participant, when in awarded tax subsidies to developers on the condition that they enter into certain agreements with labor unions that bind the developers to negotiate with a union and cover employees in union negotiations, even if employees aren't a members.

The ruling only says Jersey City's practice is subject to NLRA, ERISA, and dormant Commerce Clause challenge--not that the practices violates them. That's now the question on remand.

The case arose when a developer challenged Jersey City's practice of offering tax subsidies on the condition that a developer execute a project labor agreement ("PLAs"), an agreement that requires developers to abide by a pre-hire collective bargaining agreement that covers all employees during the term of the project. As such, a PLA is an agreement between the developer and a labor union, and, because it's entered into with a labor union, it requires a developer to negotiate with the union and requires that all employees be represented by that union in negotiations--even if the developer doesn't ordinarily employ unionized labor, and even if the employees are not union members.

Jersey City argued that it fell under the "market participant" exception to the NLRA, ERISA, and the dormant Commerce Clause, and that therefore those provisions didn't apply.

But the Third Circuit disagreed. The court ruled that Jersey City wasn't a market participant, because, under the circuit test, "the City lacks a proprietary interest in Tax Abated Projects." The court ruled that Camps Newfound/Owatonna, Inc. v. Town of Harrison dictated the result. In that case, the Supreme Court held that Maine wasn't acting as a market participant when it provided "general exemption from real estate and personal property taxes for 'benevolent and charitable institutions incorporated' in the state, but provided more limited or no tax benefits to charities benefiting residents of other states. The court also distinguished Dep't of Revenue v. Davis, saying that in that case Kentucky sold the bonds, whereas Jersey City isn't selling anything.

The ruling sends this case back to the district court for a ruling on the merits.

 

First Circuit Says Puerto Rico's AMT Violates the Dormant Commerce Clause

Steven D. Schwinn, John Marshall Law School

The First Circuit ruled today in Wal-Mart Puerto Rico, Inc. v. Zaragoza-Gomez that Puerto Rico's amendment to its Alternative Minimum Tax discriminates against interstate commerce in violation of the Dormant Commerce Clause.

The ruling means that Puerto Rico can't apply its amended AMT against Wal-Mart, the largest private employer in Puerto Rico. The ruling also strikes a blow at Puerto Rico's effort to deal with its fiscal crisis and to prevent multi-state corporations doing business in Puerto Rico from shifting profits off-island by purchasing goods and services from related mainland entities at artificially inflated prices.

The amended AMT provided for a graduated corporate tax on goods sold or transferred to the corporate taxpayer by a related party or home office outside of Puerto Rico (for example, Wal-Mart's offices in the mainland US selling to Wall-Mart Puerto Rico). The top rate, 6.5%, applied to corporate taxpayers with $2.75 billion or more in gross sales. Wal-Mart was the only company big enough to be subject to this rate. Moreover, "[f]or a retailer like Wal-Mart PR that engages in a high volume of transactions with low profit margins on each item sold, this feature of the AMT can result in a particularly high tax liability relative to income."

Wal-Mart sued, and the First Circuit struck the tax. The court said that the tax plainly discriminated against interstate commerce, because it taxed only interstate transactions. Moreover, the court said that the amended AMT wasn't the only way (and therefore wasn't necessary) to meet Puerto Rico's interest in stopping profit shifting:

The amended AMT is a blunt and unnecessary overinclusive approach to combating profit-shifting abuse. It essentially establishes an irrebuttable presumption that all intercorporate transfers to a Puerto Rico branch from related mainland activities are fraudulently priced to evade taxes. In fact, the Secretary all but admits that there are narrower alternatives that target profit-shifting. . . . Having identified numerous less restrictive alternatives to advance Puerto Rico's legitimate local purpose, we hold that the AMT is a facially discriminatory law that does not survive heightened scrutiny under the dormant Commerce Clause.

Ninth Circuit Rejects Franchisers' Constitutional Challenges to Seattle's $15 Minimum Wage

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage.  Recall that the complaint challenged  the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.

Photo by Steve Rhodes via

The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine.  The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce."  Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:

 We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.

 The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause.  The Ninth Circuit panel concluded:

[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.

The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously.  The Ninth Circuit applied the lowest form of rational basis scrutiny  - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.

The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech"  was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."

Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.

The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors.  But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.

Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility.  Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.

Maryland Tax Case Displays Court's Dormant Commerce Clause Fault Lines

Steven D. Schwinn, John Marshall Law School

The Supreme Court this week upheld Maryland's income tax system against a Dormant Commerce Clause challenge. The sharply divided ruling put on full display the Court's fault lines in this area, even as the five-Justice majority set out a bright line test for tax challenges under the Dormant Commerce Clause.

Our preview of the case, Comptroller v. Wynne, is here, with the full factual background. In brief: Maryland income tax consists of a state tax and a county tax. Residents who pay income tax to another jurisdiction (because they earn income there) are allowed a credit against the state tax, but not the county tax. This means that residents who earn out-of-state income are taxed on that income by the other jurisdiction, and by Maryland (under the county tax). (For out-of-staters earning income in Maryland, Maryland imposes a state income tax and a "special resident tax" (in lieu of the county tax).) Maryland residents who earned pass-through income from an S-corporation that earned income in several states sued, arguing that the "double taxation" violated the Dormant Commerce Clause.

The Court disagreed. Justice Alito wrote for the majority, joined by Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor. Justice Alito wrote that the case was an easy application of precedent and the "internal consistency test." That test asks whether, if every state adopted the challenged tax structure, taxes would "inherently discriminate against interstate commerce without regard to the tax policies of other States." If so, the category of taxes "is typically unconstitutional." Justice Alito said that Maryland's tax system violated the rule, because a Marylander earning out-of-state income would be taxed on that income twice (once by the out-of-state jurisdiction, and once by the Maryland county), whereas a Maryland earning in-state income would be taxed only once.

Justice Ginsburg dissented, joined by Justice Scalia and Kagan. She argued that there's a long history "of States imposing and this Court upholding income taxes that carried a similar risk of double taxation," and that the majority's internal consistency test is deeply flawed. She also argued that "[f]or at least a century, 'domicile' has been recognized as a secure ground for taxation of residents' worldwide income," and based on the domicile principle Maryland's tax system (of its own residents) is valid. Justice Ginsburg gave several reasons for this principle, including the benefits that residents receive and the political influence that residents wield--both hotly disputed by Justice Alito. Justice Ginsburg also argued that the cases relied on by the majority involved gross receipts taxes, not income taxes. She said that the difference matters: "For decades--including the years when the majority's 'trilogy' was decided--the Court has routinely maintained that 'the difference between taxes on net income and taxes on gross receipts from interstate commerce warrants different results' under the Commerce Clause."

Finally, Justices Scalia and Thomas dissented separately, maintaining their positions that there is no Dormant Commerce Clause.

The upshot of this fractured ruling is that the internal consistency test is the rule for Dormant Commerce Clause challenges to state tax practices, and that the Court will strike tax practices that result in this kind of "double taxation" of out-of-state income.

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.

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.

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.