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Posted by Katie on May 21, 2008, 3:36 pm
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On May 21, 10:59 am, se...@panix.com (Seth) wrote:
>
> >I didn't find it surprising at all. When a state exempts its own bond
> >interest from taxation, it benefits financially by encouraging more
> >people to buy bonds at lower interest. If they were to exempt bond
> >interest from other states, they would be losing financially. It's not
> >considered discrimination if it's related to an actual cost/benefit to
> >the state.
>
> But if a state taxed corn imported from other states, and not corn
> grown in itself, that would be unconstitutional discrimination, even
> though it provides an actual cost/benefit to farmers in that state
> (and thereby to the state itself by increasing collections of state
> income tax).
>
Yes, fine lines are drawn here. The Court disapproves of "economic
protectionism" affecting the private markets, but when the state
itself is a party to the transaction, it allows more leeway. The most
interesting part of the decision, actually, is the many partial and
total dissents. The Court is certainly not all in agreement on these
issues. Seven of them came to the same conclusion, but not all for
the same reasons. The decision is available here:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-666&friend=nytimes
It's also true that, to extend Seth's example, there would be no
constitutional problem with the state providing a grant or price
support payment directly to its corn farmers. It's only when a state
attempts to protect its own producers by means of the tax system that
it gets into constitutional trouble. I think that's one reason why J.
Thomas says he would never apply the dormant commerce clause under any
circumstances. As far as he's concerned, the states can do whatever
they want under the commerce clause as long as Congress doesn't enact
a law preventing it.
Katie in San Diego
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Posted by Stuart Bronstein on May 21, 2008, 5:40 pm
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> It's also true that, to extend Seth's example, there would be no
> constitutional problem with the state providing a grant or price
> support payment directly to its corn farmers. It's only when a
> state attempts to protect its own producers by means of the tax
> system that it gets into constitutional trouble.
But if out of state farmers buy local property and farm it, the fact
that they are not residents should not disqualify them from such
subsidies based on their in-state farms. It's like state universities
that charge residents a lower tuition than non-residents. But once a
student becomes a resident (e.g. by living in the state for one year),
he must be eligible for the lower tuition.
> I think that's one reason why J. Thomas says he would never apply the
> dormant commerce clause under any circumstances. As far as he's
> concerned, the states can do whatever they want under the commerce
> clause as long as Congress doesn't enact a law preventing it.
Personally I think Thomas has some odd ideas of the Constitution and
the role of the Supreme Court. For example he has no respect for
precedent - he's said as much - even though that is the basis of the
common law system.
Stu
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Posted by Rich Carreiro on May 21, 2008, 6:30 pm
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> For example he has no respect for precedent - he's said as much
Has he actually said that, or has he said that he has
no respect for precedent when it conflicts with what
the Constitution says? Which is a completely different
statement and attitude than what you ascribe to him.
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Rich Carreiro rlc-news@rlcarr.com
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Posted by Katie on May 21, 2008, 9:28 pm
Please log in for more thread options > > For example he has no respect for precedent - he's said as much
>
> Has he actually said that, or has he said that he has
> no respect for precedent when it conflicts with what
> the Constitution says? Which is a completely different
> statement and attitude than what you ascribe to him.
>
This is what Justice Thomas says in _Davis_, quoting himself from his
dissents in other cases including _United Haulers_:
"I agree with the Court that Kentucky's differential tax scheme is
constitutional. But rather than apply a body of doctrine that 'has no
basis in the Constitution and has proved unworkable in practice,' I
would entirely 'discard the Court's negative Commerce Clause
jurisprudence.'"
This is not disrespect for precedent in general; it's disrespect for
precedents that, in his mind, do not comport with the Constitution.
Actually, Scalia doesn't believe the Constitution supports the dormant
commerce clause either; however, he will follow specific precedents,
as he said in _Quill_ and says again in _Davis_.
Katie in San Diego
'
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Posted by Stuart Bronstein on May 22, 2008, 10:54 am
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>> For example he has no respect for precedent - he's said as much
>
> Has he actually said that, or has he said that he has
> no respect for precedent when it conflicts with what
> the Constitution says? Which is a completely different
> statement and attitude than what you ascribe to him.
In my opinion he has no respect for precedent because he won't follow
any rule or ruling that doesn't agree with his personal view of
constitutional jurisprudence. It doesn't matter that something has
been an accepted rule for many years. It doesn't matter that great
thinkers believe the Constitution means something that conflicts with
Thomas's ideas. To him he's the only one in the world whose opinion
counts.
Stu
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