And, His Head Explodes

"In a 5-4 ruling, the justices agreed with a lower court that the tax is unconstitutional because it discourages Maryland residents from earning money outside the state." Supreme Court Strikes Down Double Tax Law, Fox News, May 18, 2015.

Law Porn Alert


Comptroller of the State of Maryland v. Wynne, Et Ux is an amazingly tasty case. The oft-indulged "Liberal Wing" v. "Conservative Wing" pasture apple nonsense into which the press descends is nowhere to be found.

Okay.... It's cold and cloudy. I have no desire to return to work after two weeks off (one spent primarily with a book, a beach, a drink and my soul mate beside me). I'm waiting for lunch to settle before I head to the gym. And I read the above in a story about a Supreme Court decision. I mutter the epithet commonly known as "YHGTBFKM." The dogs scatter.

The case is a thorough (some might say "nauseating") examination of what is called the "Dormant Commerce Clause." Dormant, Justice Scalia points out, because it is not contained in the Constitution. It is a creature of a Supreme Court intent on deciding what is good tax policy and implementing it. Or, ordering its implementation, anyway. As Justice Scalia points out, the Commerce Clause says, in whole: [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. The dormant part of the clause (now you've read the whole thing - does it look like something is sleeping in there?) was totally invented, a long time ago, by judges.

Sigh. Okay, maybe Congress has written a law on this subject? No. Maybe another part of the Constitution permits The Supremes to strike down tax policy it finds disadvantageous in Maryland? Nope. How about if the law "discourages" some kinds of commerce, and not others, irrespective of a federal law to that effect?

Commonly, in places where Congress chooses to legislate they are said to "occupy the field." States may not intrude by passing laws that contradict the Federal statutes. In the absence of Congressional action (I know - the US Code is thick enough to require a crane to lift it) States are free to craft their own solutions, unless the Constitution prohibits it to the States (a Bill of Rights thing, involving the "incorporation doctrine." Truly, I loved teaching this shit at Metro). That's not what is going on here. The Supreme Court could not be bothered overturning what is plainly a power grab.

Scalia's opinion is worth reading, but Ginsburg's dissent twists the knife. Any court case in which Kagan, Ginsburg, Scalia and Thomas join in dissent is law porn. Although, that all in one sentence is kind of creepy, isn't it?

Of course, the Fox News story and headline (assist, AP) so far misses the point that it should be illegal to print. A law is unconstitutional because it violates the Constitution. Discourages Maryland residents?! Oh, you poor baby.

I'm going to the gym.