The Export Clause

ERIK M. JENSEN Case Western Reserve University School of Law

Abstract:

This article examines the origins and meaning of the Export Clause in Article I, section 9 of the United States Constitution, which provides that "[n]o Tax or duty shall be laid on Articles exported from any State."

Part I of the article considers the original understanding of the Export Clause, concluding that, without the Clause, the Constitution would not have been adopted. In light of the Export Clause's significance in the constitutional structure, Part II examines the Supreme Court's decisions in United States v. International Business Machines Corp., 517 U.S. 843 (1996) (IBM), and United States v. United States Shoe Corp., 523 U.S. 360 (1998) (U.S. Shoe), where the Court struck down two levies (an excise on premiums paid to foreign insurers and the Harbor Maintenance Tax) that violated the Export Clause. Part III of the article makes several points. First, the author defends the tax-versus-user-fee distinction accepted by the Court in U.S. Shoe against an argument in the literature that the Clause precludes all levies affecting exports. Second, recognizing that the Export Clause should not be interpreted to preclude taxes with a tangential connection to exportation, the author provides guidance on the circumstances in which taxes of general application and taxes on goods and services related to exportation may implicate the Clause, and discusses the cases that have considered when a good has entered the stream of exportation (and thus can no longer be subject to taxation). Furthermore, the author argues that the Clause should be interpreted liberally: if there is doubt about its application, the doubt ought to be resolved in favor of protecting the Clause.

The author questions the Supreme Court's assumption that the Export Clause is unique - that principles from Export Clause cases should not be applied to the analysis of other taxing provisions in the Constitution and that principles developed elsewhere should not be applied to the Export Clause. In particular, the author argues that the distinction between taxes and user fees has relevance in several constitutional contexts; that the principles used for determining whether a tax is "on" exports ought to be conformed for purposes of the Export Clause and the Import Export Clause (which restricts state taxing authority); and that the Court's willingness to analyze the validity of levies under the Export Clause ought to be extended to the interpretation of other provisions as well.

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