Holy Hullabaloos, The Blog

Tons of Fun at the Supreme Court

The Constitution of the United States has all sorts of weird things in it.  Indeed, I'm currently writing a book called "The Odd Clauses" for Beacon Press about some of these clauses.  One of the clauses I'm not talking about in the book is the so-called "Tonnage Clause" of Article I, Section 10.  How well do you know what the "Tonnage Clause" is?  To find out, take the following short "Tonnage Clause" quiz:

 

The Tonnage Clause provides that:

 

A)     Congress may not pass any law affecting interstate commerce involving goods weighing, in the aggregate, less than one ton;

 

B)    No state may impose any tax on any ship based on the ship's carrying capacity, without the consent of Congress;

 

C)    Rhinoceroses generally must weigh a certain number of tons;

 

D)     The President of the United States must obtain congressional approval before deploying any naval carrier weighing more than two-hundred thousand pounds.

 

If you guessed "C" you are wrong.  Under the Constitution, rhinoceroses can weigh whatever they want.  The correct answer is "B."  Specifically, the Constitution says that "No state shall, without the consent of Congress, lay any duty of Tonnage." 

 

That's kind of weird.  It's weird, isn't it?  (yes.)

 

The idea behind the clause is that the framers of the Constitution did not want states that happened to be on the sea to have an unfair economic advantage over inland states.  This whole "all states are equal" idea was a really important one in the nation's early days.  For example, the Constitution prohibits states from imposing taxes on imports.  If it weren't for this provision, a seaside state like Massachusetts could collect a tax on imports and get rich at the expense of consumers from other states who would then have to pay higher prices for whatever was imported (frying pans, for example, or cheese).  But the ban on taxing imports wouldn't really work if a state like Massachusetts could just charge big fees on ships using its ports.  "Ummm," the state would say, winking its commonwealthian eye: "This isn't a tax on imports; it's just a, uhh, you know, fee for using our port."  Ka-ching.  And thus, the Tonnage Clause.

 

I should probably add that the Tonnage Clause applies to cities as well as states.  The framers didn't want seaside cities to be able to impose taxes on using their ports any more than seaside states.  The framers weren't nitwits.

 

But what exactly does the Tonnage Clause prohibit?  We know, for example, that states can tax personal property.  If you have a car, your state can tax you for it.  If you use your car in another state for a good amount of time, that state can tax you for it.  So, what happens, for example, if a ship uses a state's port for a good amount of time (say, it docks in the state's port for thirty days per year).  Can't the state just say that it is imposing a personal property tax on the ship rather than a tax for using the port?  Does that get the state around the prohibition of the Tonnage Clause?

 

The Supreme Court actually considered this issue in its most recent term (it was a slow year).  The case was called Polar Tankers, Inc. v. City of Valdez, Alaska, and it involved the City of Valdez's attempt to impose a tax on boats "at least 95 feet in length" that brought at least $1 million of cargo to the city per year.  The city said it was a valid personal property tax, just like its tax on mobile homes and trailers.  The oil shipping company challenging the tax said that the city was charging to use its ports in violation of the Tonnage Clause.  The Supreme Court, in a convoluted bunch of opinions, agreed with the company and held the tax unconstitutional.  The following is a short play in which I present a fictional (but yet accurately representative) account of the Court's deliberations in the case.

 

Justice Breyer:  Has anyone noticed how big my head is?

 

Justice Stevens:  I'm so old.

 

Justice Alito:  Anyway, what do you guys think about the case?  And when I say "guys," I really pretty much mean "guys" because, you know, even though 52% of the population is female, we've only got one woman here.

 

Justice Ginsburg:  I'm lonely.

 

Justice Breyer:  Well, here's the deal.  This tax violates the Tonnage Clause, I'm sure of it.  The tax only applies to ships, and the amount depends on the ship's capacity. 

 

Justices Scalia, Kennedy, Ginsburg, Roberts, Thomas, and Alito nod their heads vigorously.  Justice Kennedy, for some reason, does that robot dance from the eighties.

 

Justice Breyer:  Furthermore, while it is true that a city can tax ships in the same manner that it taxes other personal property of those who do business in the city, here the city has not actually taxed other kinds of personal property.  It doesn't tax cars, airplanes, or business machinery, and although it taxes mobile homes and trailers, it only taxes those things when they are "affixed" to a particular site, which means they are taxed as real property rather than personal property.  Thus, the city loses.

 

Justice Roberts:  I'm sorry, Steve, but I can't agree with you on that last point.  The Constitution says that cities can't impose taxes on ships for using their ports.  This, as you said earlier, is exactly such a tax.  That's the end of the story.  I don't agree that "a city can tax ships in the same manner that it taxes other personal property of those who do business in the city," so to me it doesn't matter if the city taxes other personal property or not.  In my view, you've pulled this exception straight out of your ass, which is exactly where it belongs.

 

Justice Kennedy:  [stops doing robot dance]  Ouch.

 

Justice Thomas:  I agree with Roberts on this one.

 

Justice Alito:  What?  Who was that?  Who said that?  Was that you, Clarence?  I've never heard you speak before. 

 

[silence]

 

Justice Stevens:  You're all wrong!  You're all always wrong.  I'm practically ninety years old, it's ridiculous how old I am.  Remember the Maine!

 

Justice Roberts:  Why don't you tell us why we're all wrong, John.  And please step down from the conference table.

 

Justice Stevens [stepping down from the conference table]: Right.  Sorry.  I think our cases establish that Valdez's tax is a legitimate personal property tax because it's based on the value of the ship and only applies to ships that have significant contacts with the city.  The Tonnage Clause only prohibits taxing ships for the privilege of entering a port.  The ships that are taxed here have done much more than just enter the port.  Most of these tankers spend forty days per year in the port, and the crews of these boats increase the town's population by 10%.  The city should be able to impose a tax to pay for the services required by these boats and their crews.

 

Justice Souter:  I agree with Brother Stevens on this.   And I'd add that even if it's true that a city can only impose a personal property tax on a port-using boat if it imposes similar taxes on other personal property, here the city of Valdez has imposed similar taxes on personal property.  The city's tax on mobile homes and trailers is just like its tax on boats—they can only be taxed if they have significant contact with the city.

 

Justice Breyer:  Well, that's nice, Souter.  But it looks like only you and Stevens would uphold this tax.  The other seven of us think it's a violation of the Tonnage Clause, although I guess only five of us think it's important that the city doesn't impose similar personal property taxes on other things.

 

Justice Alito:  Actually, only four of you think that.  I agree with you that the city doesn't impose similar property taxes on other things, but I'm not sure it's relevant.  In other words, I haven't decided whether I think your exception belongs in your ass or not, and I'll wait until a case comes up where it matters to decide. 

 

Justice Breyer tries to throw a pen at Justice Alito, but it hits the back of his own head instead.

 

Justice Souter [picking up duffel bag]:  Well, OK, then.  That's it.  I'm off to New Hampshire for the rest of my life, and I hope to never see any of you ever again.

Could Obama Have Stayed a Senator?

Last Sunday, President-elect Obama resigned his seat in the U.S. Senate.  This was not particularly noteworthy.  It's pretty much unthinkable as a practical matter that a President could also remain a Senator.  But have you ever wondered whether it would be legal for a sitting President to remain a Senator?  Why wouldn't it be?

With Holy Hullabaloos pretty much in the bag (I just finished going through copyedits, yay!), I've started work on a new book, which I'm tentatively calling The Odd Clauses: Twelve Parts of the Constitution You May Not Know About But Should, which is something I've wanted to write for a long time.  The idea is to pick 12 (or maybe it'll end up some other number, but in any event, it will be about 12) of the weird clauses in the Constitution and explain them in plain language with memorable examples, a smattering of humor, and maybe some paintings of turtles. One of the clauses I'm going to take up is called the "Incompatibility Clause" of Article I, Section 6 of the Constitution.  This clause says that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."  The framers of the Constitution put this clause in there presumably to avoid the situation, common in England, of the chief executive (the King there; the President here) bribing legislators (Members of Parliament there; Members of Congress here) to support his legislative programs by promising plum executive offices for those who played along.

I think most constitutional scholars would say that the Incompatibility Clause prohibits a sitting President from also serving as a Senator at the same time.  They would say that the clause prohibits any person from simultaneously holding a position in both the executive and legislative branches.  Not everyone thinks this, though.  In a provocative recent article, Seth Barrett Tillman, who is a law clerk in Pennsylvania but has also written a slew of articles on constitutional law, argues that the President is not really an "officer" under the Incompatibility Clause and therefore could theoretically keep his or her Senate seat.  It's a spirited argument, and although I agree with Steve Calabresi's counterargument that ultimately it's probably not the best interpretation of the Constitution, I do like to think about how bizarre it would be for someone to actually try and do both jobs at once.  Maybe Obama should have considered it.  Sure, someone would have sued, and maybe the Supreme Court would have to resolve the question, but if Obama had possessed the foresight to nominate himself to the Supreme Court (clearly allowed by the Constitution), perhaps he could rule in his own favor.