commerce clause in Arkansas

2002With respect to in-state sales subject to sales tax, the court restricts itself to applying the four-prong test set forth in Complete Auto Transit v. Brady, 430 U.S. 274 , 279 (1977), under which a tax will pass muster under the commerce clause so long as it: 1) is applied to an activity with a substantial nexus with the taxing state, 2) is fairly apportioned, 3) does not discriminate against interstate commerce, and 4) is fairly related to the services provided by the State.

1992Code Ann. § 26-52-401 (16) (Supp. 1991), which provides that there is specifically exempted from the tax imposed by the Tax Act “[g]ross receipts or gross proceeds derived from sales for resale which the state is prohibited by the Constitution and laws of the United States from taxing or further taxing, or which the state is prohibited by the Arkansas Constitution from taxing or further taxing.” In Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), a movement case that held that a state privilege tax on the business of moving goods in interstate commerce is not per se unconstitutional,

1983The Court tersely overruled Spector Motor Service v. O’Connor, 340 U.S. 602 (1951) which, on similar facts, had held that Connecticut could not impose a tax on a Missouri taxpayer engaged in interstate trucking (some of which either originated or terminated in Connecticut) reasoning that state taxation of interstate commerce was a per se violation of the commerce clause.

1983In Brady, the Supreme Court expressly overruled the much maligned Spector Motor Service v. O’Connor, 340 U.S. 602 , 71 S.Ct. 508 (1951), the leading case limiting state taxation on the privilege of doing business in a state, as a violation of the commerce clause.

1950The first of this line of cases was Robbins v. Shelby County Taxing District, 120 U. S. 489 , 7 S. Ct. 592 , 30 L.

1892While it purports only to control the carrier when engaged within the State, it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage.” In Robbins v. Shelby Taxing District, 120 U. S. 489 , the taxing district of Shelby county, Tennessee, which included the city of Memphis, acting under the authority of a statute of that State, attempted to impose a license tax upon a drummer for soliciting, within that district, the sale of goods for a firm in Cincinnati which he represented ; but the court decided that such a soliciting of busine

2003Even if the statute were characterized as facially discriminatory, and thus subject to "strict scrutiny" ( see generally Maine v. Taylor, 477 U.S. 131 , (1986)), in my opinion it is likely justified by the State of Arkansas' interest in protecting the integrity of its title program.

1990Maine v. Taylor, 477 U.S. 131 , 138 , 106 S.Ct. 2440 , 2447 , 91 L.Ed.2d 110 (1986).

1993Philadelphia v. New Jersey, 437 U.S. 617 (1978).

1993In determining whether the fee imposed by Act 1127 violates the commerce clause by favoring in-state solid waste disposal facilities over out-of-state facilities, reference must be made to the following test set out by the United States Supreme Court in Philadelphia v. New Jersey, supra : Where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.

1967Best & Co. v. Maxwell, 311 U. S. 454 , 61 S. Ct. 334 , 85 L.

1967Best & Co. v. Maxwell, 311 U. S. 454 , 61 S. Ct. 334 , 85 L.

2007See, e.g., Goldmen Co., Inc. v. New Jersey Bureau of Securities , 163 F.3d 780 (3rd Cir. 1999) (stating, in response to a commerce clause challenge, that "[a]t one time, it was fashionable to conceive of contracts between *Page 8 diverse parties as being rooted in a single geographical location, such as the place the offer was accepted," but noting that "[t]he contrasting modern approach is to recognize that contracts formed between citizens in different states implicate the regulatory interest of both states"); and Haisten v. Grass Valley Medical Reimbursement Fund, Ltd. , 784 F.2d 1392 (9th

2003Id. at 250 . ( See generally Hughes v. Oklahoma, 441 U.S. 322 (1979) (setting out the applicable Commerce Clause test in this context)).

2003Id. at 250 . ( See generally Hughes v. Oklahoma, 441 U.S. 322 (1979) (setting out the applicable Commerce Clause test in this context)).

2003Id. at 250 . ( See generally Hughes v. Oklahoma, 441 U.S. 322 (1979) (setting out the applicable Commerce Clause test in this context)).

2003Id. at 250 . ( See generally Hughes v. Oklahoma, 441 U.S. 322 (1979) (setting out the applicable Commerce Clause test in this context)).

2002It is further consistent with the court's pronouncement in Burlinton Northern Railroad Co. v. Ragland, 280 Ark. 182 , 186 , 655 S.W.2d 437 (1983), that "whenever there is a challenge to any state tax on interstate commerce, the tax will be subjected to the [ Complete Auto Transit ] test." (Emphasis added.) Accordingly, I will analyze the constitutionality of both the sales and use taxes by applying the Complete Auto factors.

2002It is further consistent with the court's pronouncement in Burlinton Northern Railroad Co. v. Ragland, 280 Ark. 182 , 186 , 655 S.W.2d 437 (1983), that "whenever there is a challenge to any state tax on interstate commerce, the tax will be subjected to the [ Complete Auto Transit ] test." (Emphasis added.) Accordingly, I will analyze the constitutionality of both the sales and use taxes by applying the Complete Auto factors.

2002Ironically, in Pledger, the court itself invoked Holmes as authority for the proposition that the "comes to rest" doctrine is "no longer applicable or relevant to the Complete Auto test." 309 Ark. at 15 . 3 In holding that providing a credit for taxes paid elsewhere resolves the constitutional issue, Holmes and Sullivan suggest that the Court's primary concern with respect to the commerce clause is to avoid double taxation.

2001I , § 8 , cl. 3 , which provides in pertinent part: "Congress shall have the power . . . to regulate commerce with foreign nations, and among the several states. . . ." The standard for testing constitutionality under the commerce clause is summarized in Cotto Waxo Co. v. Williams, 46 F.3d 790 , 793 (8th Cir. 1995): Under the Commerce Clause, a state regulation is per se invalid when it has an "extraterritorial reach," that is, when the statute has the practical effect of controlling conduct beyond the boundaries of the state.

2001It should be noted that Section 731 of the Gramm-Leach-Bliley Act was upheld against a Commerce Clause challenge in Johnson v. Bank of Bentonville, 122 F. Supp.2d 994 (W.D.

2001It should be noted that Section 731 of the Gramm-Leach-Bliley Act was upheld against a Commerce Clause challenge in Johnson v. Bank of Bentonville, 122 F. Supp.2d 994 (W.D.

2001In Healy v. The Beer Institute, 491 U.S. 324 , 336-37 (1989), the United States Supreme Court summarized as follows the law regarding such extra-territorial consequences: Taken together, our cases concerning the extra-territorial effects of state economic regulation stand at a minimum for the following propositions: First, the "Commerce Clause . . . precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State," Edgar v. MITE Corp., 457 U.S. 624 , 642-643 (1982) (plurality opinion); see

2000DeHart v. Town of Austin, Ind., 39 F.3d 718 (7 th Cir. 1994).

1998The U.S. Supreme Court recently gave the following summary of Commerce Clause analysis: [T]he first step in analyzing any law subject to judicial scrutiny under the negative Commerce Clause is to determine whether it "regulates evenhandedly with only `incidental' effects on interstate commerce, or discriminates against interstate commerce." Hughes, supra, at 336 [ Hughes v. Alexandria Scrap Corp. , 426 U.S. 794 , 810 (1976)].

1995Services, Inc., v. State Lottery Commission of Indiana, 1995 WL 33510 (Ind.App. 1995); Connecticut v. Ader, 1992 WL 119194 (Conn.Super. 1992); and Winshare Club of Canada v. Department of Legal Affairs, 542 So.2d 974 (Fla. 1989) (stating that such an argument would be tantamount to saying that the commerce clause grants a right to break the law). 542 So.2d at 975 . 6 The real inquiry presented by your first question, therefore, is whether a commerce clause problem is presented where a bill prohibits certain gambling advertisements of amenities attendant to enterprises where such gambling is co

1995It should be noted in this regard that the United States Supreme Court has held that a State cannot circumvent the strictures of the commerce clause by "simply invoking the convenient apologetics of the police power." Morgan v. Virginia, 328 U.S. 373 , 380 (1946), quoting Kansas Southern Ry. v. Kaw Valley Drainage Distr. , 233 U.S. 75 , 79 (1914). "[A] State may not, by its police regulations, whatever their object, unnecessarily burden interstate commerce." Reid v. Colorado, 187 U.S. 137 , 151 (1902).

1995It should be noted in this regard that the United States Supreme Court has held that a State cannot circumvent the strictures of the commerce clause by "simply invoking the convenient apologetics of the police power." Morgan v. Virginia, 328 U.S. 373 , 380 (1946), quoting Kansas Southern Ry. v. Kaw Valley Drainage Distr. , 233 U.S. 75 , 79 (1914). "[A] State may not, by its police regulations, whatever their object, unnecessarily burden interstate commerce." Reid v. Colorado, 187 U.S. 137 , 151 (1902).

1995It should be noted in this regard that the United States Supreme Court has held that a State cannot circumvent the strictures of the commerce clause by "simply invoking the convenient apologetics of the police power." Morgan v. Virginia, 328 U.S. 373 , 380 (1946), quoting Kansas Southern Ry. v. Kaw Valley Drainage Distr. , 233 U.S. 75 , 79 (1914). "[A] State may not, by its police regulations, whatever their object, unnecessarily burden interstate commerce." Reid v. Colorado, 187 U.S. 137 , 151 (1902).

1995Services, Inc., v. State Lottery Commission of Indiana, 1995 WL 33510 (Ind.App. 1995); Connecticut v. Ader, 1992 WL 119194 (Conn.Super. 1992); and Winshare Club of Canada v. Department of Legal Affairs, 542 So.2d 974 (Fla. 1989) (stating that such an argument would be tantamount to saying that the commerce clause grants a right to break the law). 542 So.2d at 975 . 6 The real inquiry presented by your first question, therefore, is whether a commerce clause problem is presented where a bill prohibits certain gambling advertisements of amenities attendant to enterprises where such gambling is co

1995Services, Inc., v. State Lottery Commission of Indiana, 1995 WL 33510 (Ind.App. 1995); Connecticut v. Ader, 1992 WL 119194 (Conn.Super. 1992); and Winshare Club of Canada v. Department of Legal Affairs, 542 So.2d 974 (Fla. 1989) (stating that such an argument would be tantamount to saying that the commerce clause grants a right to break the law). 542 So.2d at 975 . 6 The real inquiry presented by your first question, therefore, is whether a commerce clause problem is presented where a bill prohibits certain gambling advertisements of amenities attendant to enterprises where such gambling is co