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The Alaska Purchase Is Probably Unconstitutional
Republican leaders can’t buy off Sen. Lisa Murkowski’s vote this way.
As Republican leadership searches for the 50th vote in favor of Graham-Cassidy, their apparently randomly chosen vehicle for repealing the Affordable Care Act, rumors abound of a sweetheart deal aimed at securing Sen. Lisa Murkowski’s vote. The so-called Alaska Purchase would maintain existing premium federal tax credits for those purchasing health insurance on the individual market, but only in Alaska and Hawaii. Sen. Mike Lee’s office told the Daily Beast that he’s been assured there will be no “Alaska Purchase,” but that same report describes the “Alaska Purchase” as an “offer” that has been made that would create this tax carve-out for multiple smaller states. Can Congress do that?
Probably not. Article I, Section 8 of the Constitution says “all Duties, Imposts and Excises shall be uniform throughout the United States.” Former Supreme Court Justice Joseph Story, writing in 1834, thought that the point of that provision was to prevent coalitions of states from ganging up, in Congress, to benefit themselves at the expense of others. While the “uniformity clause” has been watered down over time, it should still be enough to swamp the “Alaska Purchase” proposal. Ironically, South Carolina Sen. Lindsey Graham—the Graham of “Graham-Cassidy”—recognized the potential constitutional problems inherent in such a scheme seven years ago during the Obamacare debates: In 2010, he reportedly asked his state’s attorney general to look into the constitutionality of a similar proposal known as the “Cornhusker Kickback” that would have benefited Nebraska.
The leading recent authority on the Uniformity Clause is, coincidentally, also a case from Alaska, U.S. v. Ptasynski. In 1980, Congress imposed a “windfall profits” tax on domestically extracted oil but exempted some “Alaskan oil.” The court explained in its 1983 ruling that it had historically taken a pretty narrow view of the Uniformity Clause, allowing Congress to enact taxes that have disproportionately benefited specific states, as long as the taxes applied “at the same rate, in all portions of the United States where the subject of the tax is found.” That left open the question whether a tax that on its face imposed different rates on different states could survive.
That question, the court decided, would be subject to something that looks like elevated scrutiny. “Where Congress does choose to frame a tax in geographic terms, we will examine the classification closely to see if there is actual geographic discrimination,” the court ruled. To survive that scrutiny, Congress would have to show “neutral factors” that would justify the distinction. A purpose to “grant … an undue preference at the expense of other … states” would flunk the test.
Probably not. Article I, Section 8 of the Constitution says “all Duties, Imposts and Excises shall be uniform throughout the United States.” Former Supreme Court Justice Joseph Story, writing in 1834, thought that the point of that provision was to prevent coalitions of states from ganging up, in Congress, to benefit themselves at the expense of others. While the “uniformity clause” has been watered down over time, it should still be enough to swamp the “Alaska Purchase” proposal. Ironically, South Carolina Sen. Lindsey Graham—the Graham of “Graham-Cassidy”—recognized the potential constitutional problems inherent in such a scheme seven years ago during the Obamacare debates: In 2010, he reportedly asked his state’s attorney general to look into the constitutionality of a similar proposal known as the “Cornhusker Kickback” that would have benefited Nebraska.
The leading recent authority on the Uniformity Clause is, coincidentally, also a case from Alaska, U.S. v. Ptasynski. In 1980, Congress imposed a “windfall profits” tax on domestically extracted oil but exempted some “Alaskan oil.” The court explained in its 1983 ruling that it had historically taken a pretty narrow view of the Uniformity Clause, allowing Congress to enact taxes that have disproportionately benefited specific states, as long as the taxes applied “at the same rate, in all portions of the United States where the subject of the tax is found.” That left open the question whether a tax that on its face imposed different rates on different states could survive.
That question, the court decided, would be subject to something that looks like elevated scrutiny. “Where Congress does choose to frame a tax in geographic terms, we will examine the classification closely to see if there is actual geographic discrimination,” the court ruled. To survive that scrutiny, Congress would have to show “neutral factors” that would justify the distinction. A purpose to “grant … an undue preference at the expense of other … states” would flunk the test.
http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/republican_leaders_can_t_buy_off_sen_lisa_murkowski_s_vote_this_way.html
7 replies
= new reply since forum marked as read
= new reply since forum marked as read
we have to give Alaska back to the Russians!
https://history.state.gov/milestones/1866-1898/alaska-purchase
I always figured Putin was trying to get Alaska back.
