Northwest Airlines, Inc. v. Minnesota

Mr. Justice Black,

concurring:

I concur in the judgment of the Court and in substantially all that is said in the opinion, but I would not in this case foreclose consideration of the taxing rights of States other than Minnesota.

I believe there is small support in reason or in the Constitution for the doctrine that the Commerce Clause in and of itself prohibits a state from applying its general tax laws to transactions and properties in interstate commerce unless it is able to make two correct prophecies as to what this Court ultimately may hold, namely, (1) The permissible total of taxes which might be imposed by an aggregate of states on the taxed properties or transactions; and (2) The proportion of this total which the state itself *302fairly may claim. See dissenting opinions in Adams Manufacturing Co. v. Storen, 304 U. S. 307, 316; Gwin, White & Prince v. Henneford, 305 U. S. 434, 442. Extension of this dubious doctrine to the new problems of air transport gives promise of little but tax confusion.

The differing views of members of the Court in this and related cases illustrate the difficulties inherent in the judicial formulation of general rules to meet the national problems arising from state taxation which bears in incidence upon interstate commerce. These problems, it seems to me, call for Congressional investigation, consideration, and action. The Constitution gives that branch of government the power to regulate commerce among the states, and until it acts I think we should enter the field with extreme caution. See dissenting opinion, McCarroll v. Dixie Greyhound Lines, 309 U. S. 176, 183.