Section of Taxation Publications
  VOL. 58
NO. 3
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 Note: The following is an excerpt from the introduction to the article as published in The Tax Lawyer. Author citations have been omitted for brevity. Tax Section members may read the article in its entirety in Adobe Acrobat format.
 The Path Out of the Quagmire: A Better Standard for Assessing State and Local Taxes Under the Negative Commerce Clause
Mark L. Mosley*

*Partner, Mosley & Gearinger LLP; Reed College, B.A., 1981; Princeton University, MPA (economics), 1985; New York University, J.D., 1986.


In the 1980s the Supreme Court created the “internal consistency test” to help evaluate the constitutionality of state and local taxes under the negative Commerce Clause. This Article argues that the Court’s use of this test manifests the Court’s abandonment of core principles underpinning its negative Commerce Clause jurisprudence and a return to the formalism that the Court had rejected in Complete Auto Transit v. Brady. This happened because the Court has failed to reconcile the negative and positive lines of its Commerce Clause jurisprudence and, in particular, to appreciate the differences between those cases that deal with the states’ attempts to regulate the channels or instrumentalities of interstate commerce and those that deal with other burdens on interstate commerce. These failures have led the Court on a misguided search for a per se invalidity rule applicable to state taxes that has compromised basic principles of federalism and yielded results harmful to those very economic activities that the Commerce Clause is supposed to protect. The Article concludes that the Court (and the states’ appellate courts) should reconcile the positive and negative branches of Commerce Clause jurisprudence, repudiate the internal consistency test, and resume evaluating state and local taxes according to their proven practical effects upon interstate commerce.


Published by
Section of Taxation, American Bar Association
With the Assistance of
Georgetown University Law Center


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