ArtI.S10.C2.4 Whether a Good Qualifies as an Import or Export

Article I, Section 10, Clause 2:

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

The first phase of Supreme Court doctrine on the Import-Export Clause focused on determining whether the challenged measures applied to goods that qualified as imports or exports. In a series of cases, the Court sought to clarify the Clause’s scope by focusing on when products qualify as “imports” or “exports.”

In the 1827 case of Brown v. Maryland, the Court established the primary contours of the doctrine applicable to the Import-Export Clause until the late 1970s. In Brown, the Court considered whether a state law requiring sellers of foreign goods to obtain and pay for a license before being permitted to sell any such goods violated the Import-Export Clause.1 Interpreting the Clause, the Court held that it applied not only to duties on the item imported, but also to “dut[ies] levied after it has entered the country,” explaining that taking a more restrictive view would potentially allow states to prevent the importation of goods.2 The Court further held that, at some point after entering the United States, goods no longer qualify as imports and may thereafter be subject to state charges. As identifying a single point in time or fact would not address sufficiently all circumstances, the Court indicated instead that a reviewing court must consider whether the “importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country.” 3 However, while the item remained the importer’s property, “in his warehouse, in the original form or package in which it was imported, a tax” on the item clearly fell within the constitutional prohibition.4 The Court then held that the state law in question was effectively a tax on importation because it taxed only the occupation of importers and therefore violated the Import-Export Clause.5

In dicta, the Brown Court also addressed the Clause’s territorial scope, suggesting that “import” and “export” covered goods transported in foreign as well as interstate commerce.6 However, in Woodruff v. Parham, the Court held that the Import-Export Clause applied only to goods from or to foreign countries, and did not apply to measures affecting goods traveling only in interstate commerce.7 Subsequent cases have consistently followed this holding.8 The Court also extended the Clause’s application to the Philippines, during the time it was a U.S. possession, on the ground that it remained outside of and therefore foreign to the United States for purposes of the Clause.9

Following Brown, the Court sought to clarify when a good no longer qualifies as an import or export. First, the Court maintained and applied the “original package” rule in a number of cases, holding that charges on imported goods kept in their original form within warehouses violated the Import-Export Clause. Such charges included ad valorem property taxes;10 taxes on foreign goods sold at auction;11 and franchise taxes on the landing, storage, or sale of imported goods.12 By contrast, the Court held that once boxes with imported items were opened for sale or delivery, or once the goods were manipulated for use or sale, they no longer qualifed as imports.13

Second, the Court held that imports lose their character as imports once the goods fall within the purchaser’s ownership or possession rather than the importer’s,14 or importation is otherwise complete (e.g., the goods reach their final resting place).15 The Court also held that charges imposed on actions more remote from loading or unloading goods, such as transit through U.S. states, do not affect the import process and therefore do not fall within the Import-Export Clause’s scope.16

The Court also extended Brown to exports expressly, holding that state taxes on the sale of goods abroad and on the ability to export qualify as unconstitutional charges on exports.17 Further, consistent with other cases involving imports, the Court held that states may tax goods intended for export “until they have been shipped, or entered with a common carrier for transportation, to another state, or have been started upon such transportation in a continuous route or journey.” 18

A separate line of cases also clarifies that the terms “import” and “export” do not include natural persons. In several early cases, it was suggested that the Constitutional Convention’s discussion of slaves in conjunction with the term “import” indicated that the Import-Export Clause extended to persons. However, in dicta in the Passenger Cases and in later cases’ holdings, the Court decided that the Clause did not apply to natural persons.19

25 U.S. 419 (1827). back
Id. at 437–38. back
Id. at 441–42. back
Id. at 442. back
Id. at 444. back
Id. at 419. back
75 U.S. 123, 133 (1868). back
Pervear v. Commonwealth of Mass., 72 U.S. (5 Wall.) 475 (1866); In re State Tax on Ry. Gross Receipts, 82 U.S. (15 Wall.) 284, 296–97 (1872); Pittsburgh & S. Coal Co. v. Louisiana, 156 U.S. 590, 600 (1895); Am. Steel & Wire Co. v. Speed, 192 U.S. 500, 519–20 (1904); New Mexico ex rel. E.J. McLean Co. v. Denver & Rio Grande R.R., 203 U.S. 38, 50 (1906); Toomer v. Witsell, 334 U.S. 385, 394 (1948). back
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 679 (1945), rev’d on other grounds, 466 U.S. 353 (1984). back
Low v. Austin, 80 U.S. 29, 32 (1871). back
Cook v. Pennsylvania, 97 U.S. 566, 573 (1878). back
Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218, 225 (1933). back
May v. New Orleans, 178 U.S. 496, 508–09 (1900); Gulf Fisheries Co. v. MacInerney, 276 U.S. 124, 126 (1928); Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534, 542 (1959). back
Waring v. Mayor, 75 U.S. 110, 116 (1868); Hooven & Allison Co., 324 U.S. at 658. back
Pittsburgh & S. Coal Co. v. Bates, 156 U.S. 577, 598–99 (1895); New York v. Wells, 208 U.S. 14 (1908). back
Canton R.R. v. Rogan, 340 U.S. 511, 515 (1951); W. Md. Ry. v. Rogan, 340 U.S. 520, 521 (1951). back
Crew Levick Co. v. Pennsylvania, 245 U.S. 292, 295–96 (1917); Richfield Oil Corp. v. State Bd. of Equalization, 329 U.S. 69, 85–86 (1946). back
Empresa Siderurgica v. Cnty. of Merced, 337 U.S. 154, 156–57 (1949); Joy Oil Co. v. State Tax Comm’n of Mich., 337 U.S. 286, 288–89 (1949); Kosydar v. Nat’l Cash Reg. Co., 417 U.S. 62, 69 (1974). back
Passenger Cases, 48 U.S. 283 (1849); Crandall v. Nevada, 73 U.S. 35, 41 (1868); New York v. Compagnie Generale Transatlantique, 107 U.S. 59, 61–62 (1883). back