TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, March 27, 2007

Zelinksy & Denning Debate Application of Dormant Commerce Clause to Discriminatory State Taxation

I previously have blogged (here, here, and here) the debate between Edward A. Zelinsky (Cardozo) and Brannon P. Denning (Cumberland) on the dormant commerce clause and disciminatory state taxation.  They take their debate to PENNumbra, the University of Pennsylvania's new online journal, in The Future of the Dormant Commerce Clause: Abolishing the Prohibition on Discriminatory Taxation:

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

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Tracked on Mar 27, 2007 1:13:03 PM