The main problem with the Sixth Circuit’s decision in Cuno v. DaimlerChrysler is its overbreadth. In other words, in striking down Ohio’s investment tax credit the Sixth Circuit had to create such an overbroad rule to find it unconstitutional (primarily because the Commerce Clause had never been intended, or actually used, to reach state tax programs like Ohio’s investment tax credit) that a number of routine state tax programs could be swept into the court’s reasoning. To demonstrate the breadth of the Sixth Circuit’s ruling, we invite our readers to play a “word game” with one of the sentences in the Sixth Circuit ruling quoted below. This sentence comes from a summary of the plaintiff’s argument, which the Court apparently accepted. In the blank, the Court used the term “Ohio investment tax credit.” “[T]he economic effect of the _______________ is to encourage further investment in-state at the expense of development in other states and that the result is to hinder free trade among the states.” Can our readers think of any state tax law, spending program, infrastructure improvement, etc., that can be inserted in place of “Ohio’s investment tax credit” but not be said to “encourage further investment in-state at the expense of development in other states”? Please e-mail me your answers at cdatkins@taxfoundation.org.
