Commerce Clause Restraints on State Taxation: Purposeful Economic Protectionism and Beyond

Few questions in recent years have spawned as much controversy and as little academic interest as the scope of commerce clause restraints on state tax power. The Supreme Court has handed down an extraordinary number of significant decisions addressed to the limitations the commerce clause imposes on state taxation. Yet these decisions have barely caught the eye of the nation’s leading law reviews or constitutional scholars. Even those observers who have recognized the Court’s renaissance of interest in the dormant commerce clause have largely confined their attention to state regulation, as distinguished from state taxation, of interstate commerce. If there is an explanation for this puzzling neglect of state taxation, it may lie in the remark of Gerald Gunther – who unceremoniously dropped the subject from his casebook – that “pursuit of the intricacies of state taxation . . . would require more time and space than the undertaking warrants.”

Given the current turn in academic fashion, Donald Regan’s characteristically thoughtful examination of the Court’s commerce clause jurisprudence in The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause assumes an added dimension because it discusses matters involving state taxation of interstate commerce. Although state taxation is not the principal focus of Regan’s analysis, his thoughts concerning the Court’s state tax decisions raise questions that merit further comment for two reasons: first, they shed additional light on Regan’s central thesis; second, they are worthy of consideration in their own right.