Abstract

In this Article, I seek to respond to the Court's overture with a treatment of of subsidies under the dormant Commerce Clause that moves progressively from the general to the specific. Part I examines key Supreme Court cases to show that the basic question of whether state business subsidies are constitutional remains open and important. Part II then turns to how that question should be resolved, focusing on whether subsidies are fairly distinguishable from ostensibly equivalent, and concededly unlawful, discriminatory tax relief. The thrust of Part II is that both precedent and policy support the traditional, pre-West Lynn Creamer" view that state subsidies almost always comport with the dormant Commerce Clause principle. In particular, Part II emphasizes that four considerations-rooted in form, fairness, federalism, and political processes-render subsidies less threatening to Commerce Clause values than economically comparable tax deductions, credits, and exemptions.

Part III then addresses the major question that Part II leaves open: How should courts distinguish the ordinary subsidy that is constitutional from the exceptional subsidy that is not? Part III suggests that none of the opinions in West Lynn Creamery-in which an exceptional subsidy was struck downoffers much useful guidance on this critical question. As a result, Part IV offers an alternative analytical framework for distinguishing the constitutional grant-in-aid from the unconstitutional assault upon our "federal free trade unit."' In essence, this proposal calls upon courts to draw the line between permissible and impermissible subsidies by focusing on the same four factors already identified in Part II to distinguish ordinary subsidies from discriminatory tax breaks as a general matter. Accordingly, Part IV advocates an approach that asks whether the challenged subsidy-because of its linkage to a particular tax-shares the essential constitutional defects of a discriminatory tax break. Using the four factors, courts would consider the following: (1) whether, consistent with conventional property-based notions of fairness, the subsidy merely permits state residents to reap where they have sown; (2) whether invalidation of the subsidy frustrates the state's federalism based interest in experimenting with responses to distinctive local needs; (3) whether the same political dynamics that unduly encourage adoption and retention of discriminatory tax relief (i.e., reduced visibility, heightened risks of entrenchment, lowered administrative costs, and the like) mark the challenged subsidy scheme; and (4) whether the subsidy is part of a program that resembles in form a protective tariff or kindred types of unconstitutional discriminatory taxation.