Virginia Law Review, Vol. 62, No. 1 (February 1976), pp. 149-192


It was an item of more than routine interest when the Supreme Court, late in the 1973 term, noted probable jurisdiction in two cases raising issues of central importance with respect to state tax power over interstate business. Standard Pressed Steel Co. v. Department of Revenue presented critical questions concerning due process and commerce clause limitations on a state's power to impose an unapportioned gross receipts tax on an interstate vendor; Colonial Pipeline Co. v. Traigle posed the recurring and unresolved question of the scope and vitality of the doctrine that the “privilege” of doing interstate business is immune from state taxation. One might have thought that the Court, after hesitating to enter such controversies for a decade and a half, had at last decided to address these issues. But when the opinions came down, they were singularly unenlightening, and hopes for a renaissance in the Court's interest in the problem of state taxation of interstate business were proven false or at least premature. Moreover, the opinions raised serious questions about the Court's perception of its own role in this area. My purpose here is three-fold: first, to analyze what the Court in fact did in Standard and Colonial; second, to examine in greater detail some of the issues that the decisions raised; and finally, to consider the broader significance of what the Court did not do.