Constitutional Law: Power of States to Tax Foreign Commerce

Question 1

Import-Export Clause

Answer 1

Article I, Section 10, Clause 2 provides: “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 . . . .”

Question 2

Import-Export Clause: State Taxation of “Imports” Prohibited Absent Congressional Consent

Answer 2

The Import-Export Clause prohibits the states from imposing any tax on imported goods as such
or on commercial activity connected with imported goods as such (i.e., taxes discriminating
against imports), except with congressional consent. [Brown v. Maryland, 25 U.S. 419 (1827)]

Question 3

Import-Export Clause: State Taxation of “Exports” Prohibited

Answer 3

The Import-Export Clause prohibits the states from imposing any tax on goods after they
have entered the “export stream.”

Question 4

Commerce Clause

Answer 4

The Commerce Clause gives Congress the exclusive power to regulate foreign commerce and thus
inherently limits a state’s power to tax that commerce. Therefore, a state tax applied to foreign
commerce must meet all of the Commerce Clause tests that apply to state taxation of interstate
commerce. (See X.A., supra.) And even if a state tax meets those tests, the tax is invalid if it
would (i) create a substantial risk of international multiple taxation or (ii) prevent the federal
government from “speaking with one voice” regarding international trade or foreign affairs issues.
[Barclays Bank PLC v. Franchise Tax Board, 512 U.S. 298 (1994)]