Montana Law Review, Vol. 43, No. 2 (Summer 1982), pp. 165-179


On the final day of its 1980-81 term, the United States Supreme Court handed down its long-awaited decision in Commonwealth Edison Co. v. Montana, which sustained Montana's coal severance tax over commerce and supremacy clause objections. In a six-to-three decision, the Court upheld the right of the states to set their own tax rates without fear of judicial interference. The Court's conclusion was rooted in its recognition that the determination of the rate or amount of a state tax is fundamentally a political question, which "must be resolved through the political process . . . by state legislatures in the first instance and, if necessary, by Congress, when particular state taxes are thought to be contrary to federal interests." The following reflections on the Court's opinion in Commonwealth Edison are, no doubt, colored by our role in the case as advocates for the state. Our views of the case may therefore lack the cool detachment of one who had no part in litigating it. We would like to think, however, that our involvement in the severance tax controversy has provided us with some insights, worth recording here, into the nature of the underlying issues before the Court and the implications of its decision.