Peck v.Lowe

[wserra]

If you're talking about William E. Peck & Co. v. Lowe, 247 U.S. 165 (1918), you're both nuts.

The short opinion simply holds that a tax on the income of a company that buys and exports domestic goods does not violate Article I, § 9, cl. 5, which provides that "no tax or duty shall be laid on articles exported from any state". The source of the income is irrelevant - contrary to what Rosie insists.

The case has never been overruled or limited, and is still perfectly good law.

[LPC]

Larken says the juncture of power to regulate with power to tax supports his claim that one must have both to tax.

Larken is referring to an unfortunate dictum (Latin for "word") in the opinion.

In framing the issue before the court, the court said:

The Constitution broadly empowers Congress not only 'to lay and collect taxes, duties, imposts, and excises,' but also 'to regulate commerce with foreign nations.' So, if the prohibitory [export] clause invoked by the plaintiff be not in the way, Congress undoubtedly has power to lay and collect such a tax as is here in question.

William E. Peck & Co. v. Lowe, 247 U.S. 165, 173 (1918)

Larken believes that the words "but also 'to regulate commerce with foreign nations'" implies that Congress cannot tax what it cannot regulate, but if the court thought that then the court was silently over-ruling the License Tax Cases, 72 U.S. 462 (1866), which specifically held that Congress CAN tax activities that it cannot regulate.

Exactly why the court included those words in the opinion is a bit of a mystery to me, because the opinion never says anything else about the power to regulate foreign commerce, and the words seem to be completely irrelevant to the issue before the court.

Larken reads deep meaning into the words, but he's wrong (as usual).

[ShadesOfKnight]

Exactly why the court included those words in the opinion is a bit of a mystery to me, because the opinion never says anything else about the power to regulate foreign commerce, and the words seem to be completely irrelevant to the issue before the court.

Larken reads deep meaning into the words, but he's wrong (as usual).

It seems logical to me why the court mention it. It's setting a context... "If X not be in the way.." It sets a context for the decision, doesn't it? Omitting that bit would make the decision extremely over-reaching, wouldn't it?

[wserra]

Omitting that bit would make the decision extremely over-reaching, wouldn't it?

If you mean the part about regulating foreign commerce, no, it wouldn't. Why do you believe otherwise?

[ShadesOfKnight]

Omitting that bit would make the decision extremely over-reaching, wouldn't it?

If you mean the part about regulating foreign commerce, no, it wouldn't. Why do you believe otherwise?

Because context is everything in law... is it not?

[Cpt Banjo]

Exactly why the court included those words in the opinion is a bit of a mystery to me, because the opinion never says anything else about the power to regulate foreign commerce, and the words seem to be completely irrelevant to the issue before the court.

Larken reads deep meaning into the words, but he's wrong (as usual).

It seems logical to me why the court mention it. It's setting a context... "If X not be in the way.." It sets a context for the decision, doesn't it? Omitting that bit would make the decision extremely over-reaching, wouldn't it?

Since the Court had already held in 1866 that Congress can tax things that it can't otherwise regulate, why would it be overreaching to base the Lowe decision solely upon the taxing clause and omit the needless reference to the commerce clause?

[wserra]

Omitting that bit would make the decision extremely over-reaching, wouldn't it?

If you mean the part about regulating foreign commerce, no, it wouldn't. Why do you believe otherwise?

Because context is everything in law... is it not?

Sorry, Homey don't play "legal sophist". You tell me why you believe that omitting a reference to foreign commerce would be "extremely overreaching", or end of exchange.

[ShadesOfKnight]

Sorry, Homey don't play "legal sophist". You tell me why you believe that omitting a reference to foreign commerce would be "extremely overreaching", or end of exchange.

Mostly because it's entertaining imagining any of the Wayans brothers involved in this kind of discussion, I'll play along.

In omitting the reference to foreign commerce, the decision would be without context, and therefore could be construed or constructed to apply to ANY taxation situation... the Judge in this case (rightly) sought to set a framework of applicability of the decision, and so included a contextual framework by saying "when not..." The when not sets a limitation upon the decision, effectively saying "this doesn't apply in cases where..."

Without that small phrase, the decision could be (would be) construed to be universally applicable.

Does that answer your question, Homey?

[Brian Rookard]

The larger point is this. Peck v. Lowe is irrelevant.

The Supreme Court has stated on NUMEROUS occasions that Congress can tax an activity, even if it can't regulate it.

There are many cases which just flat out contradict Larken's argument ... and which Larken conveniently ignores. Much more, they are EXPLICIT, and deal specifically with the argument that Larken is advocating.

The Courts are clear ... just because Congress can't regulate an activity does NOT mean that they can't tax it. See U.S. v. Kahriger as just one example among many cases that could be cited.

[Demosthenes]

I liked the description that Larken gave when he was on the witness stand of how he researched Supreme Court opinions.

When an IRS employee told him about a USSC case that negated his theory, Larken pulled the case up on the internet, did a word search for "861" and when nothing popped up, he dismissed the case as irrelevant without ever actually reading it.

"Hey, I'm just a guy who cut lawns. What do I know?" -- Larken Rose

[Cpt Banjo]

Dan,

which specifically held that Congress CAN tax activities that it cannot regulate.

Could you please quote just where it says that? It is a long decision. Do you mean 471: "Just 2 qualifications and 1 prohibition.." or "The power to tax is not questioned."... or is there something else more pithy?

Son, what type of activity was being taxed in The License Tax Cases? Intrastate sales of lottery tickets and liquor. Could Congress regulate such activities in the 1860's? No. Could Congress tax such activities? Yes.

You should also read Sonzinsky v. U.S., 300 U.S. 596 (1937) (tax on gun dealers); U.S. v. Sanchez, 340 U.S. 42 (1950) (tax on marijuana transfers); and U.S. v. Kahriger, 345 U.S. 22 (1953) (tax on accepting wagers). In each case the Court upheld the federal tax on the activities in question based solely upon the taxing clause and not on the power to regulate interstate commerce or any other power granted to Congress under Article I, Section 8 of the Constitution. Heck, go all the way back to Hylton v. U.S., 3 U.S. 171 (1796), upholding a federal tax upon carriages used solely within Virginia. Could Congress have regulated such carriages in 1796? No way. Could it tax them? You bet. Congress' power to tax something has never been dependent on whether it could otherwise regulate it.

[notorial dissent]

.....Larken reads deep meaning into the words, but he's wrong (as usual).

It is not that Larken reads deep meaning into words, so much as it is that Larken reads the meaning he wants into words, and thus is ever wrong. Just like Pete does.

The whole point of this case, that I see, is not that Congress was taxing an activity, export, but that it was taxing an income, and, in its overly verbose way court agreed, that they could.

[LPC]

Dan,

which specifically held that Congress CAN tax activities that it cannot regulate.

Could you please quote just where it says that?

It runs throughout the opinion, but this is about as pithy as it gets:

“[T]he recognition by the acts of Congress of the power and right of the States to tax, control, or regulate any business carried on within its limits, is entirely consistent with an intention on the part of Congress to tax such business for National purposes.”

License Tax Cases, 72 U.S. 462, 475 (1866).

[Demosthenes]

See you elsewhere--perhaps!

Stick around fuzzy.

[Lambkin]

That'll do. I'm outta here. Thanks. Larken spins a nice theory, but there's no getting around SC rulings. Unlike Larken, I WILL respect the Judiciary. See you elsewhere--perhaps!

Don't leave us here with all these crazies!! Where else can you get the abuse you crave? :-)

[wserra]

I understand from Larken's referencing Bailey v. Drexel that the argument isn't "tax is dependent on power to regulate", but like Chief Justice Taft said in that decision, while a tax can impose an "incidental restraint" on an activity, it cannot have a "prohibitory and regulatory effect" on it. Perhaps that's why the Court brought up "power to regulate trade" in Peck v. Lowe?

A quick lesson about law: You can't rip something from context, impose on it the meaning you wish it to have, and expect the result to be a legal argument that anyone will credit.

Bailey v. Drexel Furniture, 259 U.S. 20 (1922), involved a tax on businesses employing child labor, something which at the time only states could regulate. Taft and the Court expressly found that Congress intended the tax to shut down child labor employers:

In the light of these features of the act, a court must be blind not to see that the so-called tax is imposed to stop the employment of children within the age limits prescribed. Its prohibitory and regulatory effect and purpose are palpable. All others can see and understand this.

Bailey is only relevant if you can come up with another tax which is intended to regulate a non-regulable industry. No party even attempted to show that the tax in Peck was intended to regulate something Congress had no power to regulate directly. Indeed, it was a corporate income tax of general application, taxing the income of every corporation, not just those involved in export.

BTW, after the Supreme Court decided Bailey, it overruled Hammer v. Dagenhart, 247 U.S. 251 (1918), the case which held that Congress could not regulate child labor, in United States v. Darby, 312 U.S. 100 (1941). Therefore, while the Supreme Court has never overruled Bailey by name, its holding is no longer good law.

Rosie, as usual, is full of it.