“[I]n McCulloch vs. Maryland, the court said that in general we don’t want to be micromanaging all the details of state taxation,” attorney Lawrence Rosenberg told the justices at the end of Monday’s oral argument in Dawson v. Steager. That’s not the way that McCulloch is usually remembered—far more famous is Chief Justice John Marshall’s statement in the 1819 case equating “the power to tax” with “the power to destroy.” But in any event, it was apparent by the end of the argument that the current court does not want to be micromanaging state tax regimes.
The argument also made clear, however, that an easily administrable rule for cases like Dawson won’t be so easy to find. The approach suggested by the U.S. solicitor general—who urged the justices to vacate the West Virginia state supreme court’s decision and send the case back down for further proceedings—seemed to attract the most support from the bench. But as Michael Huston, an assistant to the solicitor general, acknowledged, that approach still would leave lower courts with “difficult questions.” Further splits are almost inevitable, and so the justices may soon find themselves immersed yet again in the details of state taxation.
At first glance, Dawson looks like a straightforward case. Petitioner James Dawson, a retired U.S. marshal, wants West Virginia to exempt his federal retirement benefits from state income tax. Dawson points to the fact that West Virginia already exempts benefits paid to retired state and local law-enforcement officials who participate in particular pension plans. West Virginia emphasizes the fact that Dawson and other federal retirees receive the same tax treatment as the 98 percent of former state and local government workers who do not participate in one of the favored plans. Lurking in the background is the intergovernmental-tax-immunity doctrine—created in McCulloch and codified at 4 U.S.C. § 111—which bars states from discriminating against federal officers or employees through their tax laws.
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