Tag: Dormant Commerce Clause

The Libertarian Podcast: Understanding the Dormant Commerce Clause


In the latest installment of the Libertarian podcast, Professor Epstein is giving listeners a tutorial on the Dormant Commerce Clause — the controversial legal doctrine that was at stake in the Supreme Court’s recent ruling in Comptroller of the Treasury of Maryland v. Wynne. What is it? Why was it able to so dramatically scramble judicial alliances in the Comptroller case (where the majority consisted of Alito, Roberts, Kennedy, Breyer, and Sotomayor)? And why does Justice Scalia regard it as a “judicial fraud”? Find the answers by listening in below or subscribing to the Libertarian podcast via iTunes or your favorite podcast app.

SCOTUS Notes # 3: Comptroller of the Treasury of Maryland v. Wynne


shutterstock_103670531The third case in my series is a Constitutional decision under the “dormant Commerce Clause,” involving state income taxation called Comptroller of the Treasury of Maryland v. Wynne. It is interesting because: (1) it limits the right of states to tax individual income, and (2) it generated an unusual 5-4 split, dividing both the conservative and liberal justices 2-2, with Justice Kennedy casting the deciding vote.

I.  Issue

Whether the Commerce Clause of the federal Constitution prohibits a state from imposing an income tax system that results in a higher tax burden on out-of-state income.

Can California Make Laws For the Rest of the Nation?


That’s the question I examine in the newest installment of my column for Hoover’s Defining Ideas. California has recently enacted a series of carbon regulations so sweeping that they have the practical effect of regulating behavior throughout the nation. As I note in the column, it is, in my judgment, time for this issue to be heard by the Supreme Court.

The reason this case is so important is that California’s regulations essentially usurp the powers of the federal legislative branch. As I argue: