Supreme Court Review, Vol. 1976 (1976), pp. 99-133


In Michelin Tire Corp. v. Wages, the Supreme Court abandoned a century of precedent in holding that the Import-Export Clause does not bar a state from imposing a nondiscriminatory ad valorem property tax on imported goods. The provision forbidding the states from laying "any Imposts or Duties on Imports or Exports" was never intended to prohibit such a levy, the Court now tells us, and the case first suggesting that it did, Low v. Austin, was "wrong decided." Over a mild protest of Mr. Justice White, the Court thus obviated any examination of the principal issue the parties had briefed: whether Michelin's tires, while sitting in a warehouse in Gwinnett County, Georgia, had retained their "distinctive character" as imports and, consequently, their immunity from state taxation.

Although the Court's confession of error apparently spared us a discourse on the "original package" doctrine, it could hardly fail to raise a number of questions. Some are historical. Are we assured that the Court, now fortified by "scholarly analysis," is correct in its confident assertion that "[n]othing in the history of the Import-Export Clause even remotely suggests that a nondiscriminatory ad valorem property tax which is also imposed on imported goods that are no longer in import transit was the type of exaction that was regarded as objectionable by the Framers"? Others are jurisprudential. Was there any "reason" or "necessity" to overrule Low v. Austin since, as Mr. Justice White remarked, "None of the parties has challenged that case here, and the issue of its overruling has not been briefed or argued"? And still others are of immediate practical importance. In delimiting the power of states to tax imports, should we continue to ask, "When does an import cease to be an import?" or should we address other issues instead? Extended consideration of each of these questions may be warranted, but it is toward the last area of inquiry that this article is primarily directed.