No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.Article I, Section 10, Clause 2
A primary concern of the Framers of the Constitution was ending the interstate commercial depredations that had occurred during the Confederation period. Thus, the Constitution gave Congress the power to regulate interstate, foreign, and Indian commerce. The Framers also took care to place restrictions on state power under the new government. Often, the restrictions in Article I, Section 10, mirror the powers granted to Congress. Evidence from the Constitutional Convention and the ratification debates suggest that the Framers intended the Import-Export Clause to complement congressional power to raise revenue and regulate interstate commerce by restricting the states' ability to tax commerce entering and leaving their borders.
Indeed, the clause was likely understood originally to encompass domestic, as well as foreign, imports and exports. During the Convention, James Madison opposed allowing states to tax imports to protect native industries. Such protections would "[require] duties not only on imports directly from foreign Countries, but from the other States in the Union, which would revive all the mischiefs experienced from the want of a Gen[era]l Government over commerce." Opponents of ratification often complained of the restrictions placed on states by the new constitution and proposed that only their powers to tax and regulate foreign commerce be restricted.
The Supreme Court's early interpretations of the clause confirmed this interpretation. In Brown v. Maryland (1827), Chief Justice John Marshall assumed that the clause applied "equally to importations from a sister State" as well as to foreign imports. In Almy v. California (1861), the Court held that the clause prohibited California from taxing gold exported to New York. In Woodruff v. Parham (1869), however, the Court concluded that the "Imports or Exports" referred to in the clause referred only to foreign imports and exports. In reaching that conclusion, however, the Court made no analysis of the original understanding, and declared that Chief Justice John Marshall was in error in Brown v. Maryland (1827). In fact, the Woodruff opinion recharacterized Chief Justice Roger B. Taney's Almy opinion as a "dormant" Commerce Clause opinion, though it clearly was not.
Subsequent cases addressed when domestic goods became "Exports" or when foreign goods ceased being "Imports" and thus subject to state taxation. See, e.g., Kosydar v. National Cash Register (1974) (discussing when goods become "exports"); Low v. Austin (1872) (holding that goods cease to be "Imports" when no longer in "original package"). In Michelin Tire Corp. v. Wages (1976), the Supreme Court adopted a new analysis of the Import-Export Clause. A nondiscriminatory state tax would be invalidated only if it (1) prevented the federal government from regulating foreign commerce uniformly; (2) diverted import revenue from the federal government to the states; or (3) risked interstate disharmony like that seen under the Confederation. See also Itel Containers Int'l Corp. v. Huddleston (1993) (applying Michelin Tire).
More recently, Woodruff v. Parham has been questioned. In 1997, Justice Clarence Thomas argued that case was wrongly decided, that the historical evidence plainly showed that the Import-Export Clause did apply domestically, and that the clause should be substituted for the Court's dormant Commerce Clause doctrine, which infers limits on a state's ability to regulate interstate commerce from the Commerce Clause. Camps Newfound/Owatonna, Inc. v. Town of Harrison (1997) (Thomas, J., dissenting). In addition, Justice Thomas noted that since the Supreme Court's narrowing of the Import-Export Clause in Michelin Tire, the fear expressed in Woodruff that applying the clause to domestic imports would unfairly exempt out-of-state goods from taxation was no longer credible.
- Brannon P. Denning
- Professor of Law
- Cumberland School of Law, Samford University