The Dormant Foreign Commerce Clause After Wynne

Authors

Michael S. Knoll, University of Pennsylvania Carey Law SchoolFollow
Ruth Mason, University of Virginia School of LawFollow

Document Type

Article

Publication Date

2020

Abstract

This Essay surveys dormant foreign Commerce Clause doctrine to determine what limits it places on state taxation of international income, including both income earned by foreigners in a U.S. state and income earned by U.S. residents abroad. The dormant Commerce Clause similarly limits states’ powers to tax interstate and foreign commerce; in particular, it forbids states from discriminating against interstate or international commerce. But there are differences between the interstate and foreign commerce contexts, including differences in the nationality of affected taxpayers and differences in the impact of state taxes on federal tax and foreign-relations goals. Given current Supreme Court doctrine, we provide states guidance as to how to conform their regimes for taxing international income to constitutional requirements.

Keywords

commerce clause, discrimination against interstate commerce

Publication Title

Virginia Tax Review

Publication Citation

39 Va. Tax Rev. 357 (2020)

Repository Citation

Knoll, Michael S. and Mason, Ruth, "The Dormant Foreign Commerce Clause After Wynne" (2020). All Faculty Scholarship. 2159.
https://scholarship.law.upenn.edu/faculty_scholarship/2159