Yesterday, the Supreme Court heard oral arguments in the Polar Tankers v. City of Valdez case.  The transcript is here.

In my earlier post, I suggested that the Court took the case not on the duty of tonnage issue but rather on discriminatory interstate tax schemes (think internet sales tax).  The amici briefs were virtually all in this camp.

Oral arguments, however, were ALL about the tonnage clause of the Constitution.  It suggests to me that the Court was NOT ready to wade into the interstate tax issue and the tonnage issue was a very, very clean way to strike down the tax, without creating precedent that would apply to the several states’ ability to tax internet sales, etc. 

One great moment in the transcript which confronts, perhaps, a shortcoming of the Original Intent doctrine.  In short (and admittedly superficial) fashion, this doctrine or judicial philosophy calls for the interpretation of the Constitution, at the time it was drafted.  So, to define terms like “cruel and unusual” or “arms,” Originalists will turn to the 1700’s for clues as to meaning. 

So, does the tonnage clause include air or rail, invented long after the drafting of the Constitution?

CHIEF JUSTICE ROBERTS:  Well, but just on a — maybe this doesn’t matter. I have seen the capacity of cargo planes described in terms of tonnage. Does this clause apply to those?

MR. ROTHFELD: That — that is an interesting question. It — it was written to apply to ships simply because in the late 18th century, the only way of moving substantial amounts of cargo was by — was by vessel. And I imagine that if the Framers had in mind airplanes and railroads –

CHIEF JUSTICE ROBERTS: It is that we have an evolving Constitution, after all.

MR. ROTHFELD: I will leave that one alone, Your Honor.

(Laughter.)

CHIEF JUSTICE ROBERTS: Well, then, do you know — it’s not an entirely frivolous point. I mean, do you know if States, localities where airports are located charge things that might be viewed as Tonnage Clauses on airplanes?

MR. ROTHFELD: I don’t know a definitive answer to that. ..

Side note: As posted here, Hawaii’s invasive species assessement fee does impose a tax on cargo, both on vessels and airplanes.  A per ton fee is tough to calculate on a parcel carried on an airplane for sure.

Background Materials on the case:

My posts: here, here.

The question presented is:

1. Whether a municipal personal property tax that falls exclusively on large vessels using the municipality’s harbor violates the Tonnage Clause of the Constitution, art. I, § 10, cl. 3.

2. Whether a municipal personal property tax that is apportioned to reach the value of property with an out-of-State domicile for periods when the property is on the high seas or otherwise outside the taxing jurisdiction of any State violates the Commerce and Due Process Clauses of the Constitution.

Polar Tankers Opening Brief is here.

City of Valdez Answering Brief is here.

Amici:  Broadband Tax Institute (brief here)(supporting the out-of-state tax argument); the Council on State Taxation (brief here)(out-of-state tax argument); Tropical Shipping and Construction Company, Ltd. (brief here)(tonnage argument); World Shipping Council and Cruise Lines International Assn. (brief here)(tonnage argument); the National Federation of Independent Business Small Business Legal Center (brief here)(out-of-state tax argument); Seventeen State Governments (brief here)(supporting Valdez); and the Multistate Tax Commission (brief here)(supporting Valdez). 

Polar Tankers Reply Brief here.