16 October 2009

Ohio TV Tax Flawed, Say Legal Scholars


Sixteen of the nation's top constitutional law scholars, including the Honorable Kenneth Starr, former U.S. Solicitor General and Washington D.C. Circuit Court Judge, and Erwin Chemerinski, the author of a leading constitutional law treatise, believe that an Ohio Court of Appeals ruling upholding a satellite TV tax would dramatically erode Constitutional protections from discriminatory state regulation.

In a "friend of the court" brief filed with the Ohio Supreme Court, the scholars firmly supported DIRECTV`s and DISH Network`s position that Ohio's discriminatory tax treatment of satellite TV violates the Commerce Clause of the Constitution of the United States. Each of the scholars has a particular expertise in the Commerce Clause - a provision of the Constitution designed to foster a vibrant national economy by prohibiting states from enacting protectionist measures that discriminate against interstate commerce.

Earlier this year, an intermediate Ohio appeals court ruled that a 5.5 percent state tax, which does not apply to consumers who choose cable TV service, does not violate the federal Constitution, overturning a 2007 ruling by the Ohio Court of Common Pleas that struck down the discriminatory tax as unconstitutional.

The scholars described the rule the Court of Appeals followed as "newly minted," and that it "unmoors the dormant Commerce Clause from its traditional roots, runs contrary to a multitude of Supreme Court cases, dramatically narrows the scope of the dormant Commerce Clause`s prohibition, and clears the way for the state to impose a variety of new state taxes that would not have passed muster under traditional dormant Commerce Clause principles."

Among those who also signed the brief, authored by former Ohio Solicitor Douglas Cole, are Norman Williams and Brannon Denning, two of the most prolific writers on Commerce Clause jurisprudence.

In a joint statement, the companies said, "The brief makes absolutely clear that the analysis adopted by the Court of Appeals in rejecting our claims was not only wrong, but if upheld, would dramatically erode the protections from discriminatory state regulation that the Constitution provides and on which our economy depends. We are pleased to have their support and confident that the Court will appreciate and consider the viewpoints of this distinguished group of scholars in its deliberations." 

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