Earlier this week, the Supreme Court struck down Maryland’s personal income tax scheme as unconstitutional because it discriminated against interstate commerce “without regard to the tax policies of other States.”
A great deal of the opinion hinged on the notion of the dormant Commerce Clause, which, as spelled out in the opinion, prohibits “certain state taxation even when Congress has failed to legislate on the subject.” While the majority embraced this opinion, some Justices took issue with whether the dormant Commerce Clause really existed or was instead, as Justice Scalia claimed, a “judicial fraud.”
For now, the dormant Commerce Clause has heft. But it brings us to today’s Fix The Tax Code question:
Should the Supreme Court be allowed to rein in state taxation when Congress has not specifically acted on the subject? Or in the absence of specific direction, should states (and individuals) be allowed to make their own policy without regard for how it affects interstate commerce – and thus, other states?
