TaxProf Blog

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

Wednesday, May 16, 2018

Hemel: Justice Alito, State Tax Hero?

Daniel Hemel (Chicago), Justice Alito, State Tax Hero?:

I had been waiting with bated breath for the Supreme Court’s decision in Murphy v. NCAA, formerly Christie v. NCAA. (Sorry, Chris Christie: You won’t have your name attached to the winning side of a landmark constitutional case — your successor will.) Anyhow, it came down yesterday — and it’s way more interesting than I anticipated. In a nutshell: Not only did the Supreme Court strike down the federal law at issue, which had stopped states, counties, and cities from legalizing sports gambling within their borders, but it also appears to have invalidated a broad swath of congressional limitations on state tax authority. (Oh, and it also saved sanctuary cities.) ...

Some of us predicted that Murphy v. NCAA would have important implications for the sanctuary cities controversy. What I, for one, didn’t expect is that it would have such significant implications for state tax law as well. Why might it? Well, a whole host of federal statutes limit the tax authority of states and their subdivisions. To borrow from Justice Alito, they violate “[t]he basic principle … that Congress cannot issue direct orders to state legislatures,” and these provisions cannot “be understood as a regulation of private actors.” To illustrate:

http://taxprof.typepad.com/taxprof_blog/2018/05/hemel-justice-alito-state-tax-hero.html

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Comments

Read the article! The possibilities are absolutely fascinating.

That said, the courts have long treated tax law as worthy of only second-class Constitutional protection. For instance, ex post facto increases in tax liability are routinely allowed. That's why I don't share Hemel's belief that this decision will cause a tax earthquake.

Posted by: AMTbuff | May 16, 2018 2:37:50 PM

“Oh, and it also saved sanctuary cities.”

Silly liberal wishful thinking.

Posted by: Anon | May 16, 2018 3:02:11 PM