President Donald Trump selected Judge Neil M. Gorsuch of the Tenth Circuit Court of Appeals to fill the vacancy in the Supreme Court. Judge Gorsuch draws much similarities to Judge Anthony Scalia, whom he is replacing, after his death in 2016. There are a lot of political decisions one might get into, but we are going to look at how some of the decisions Judge Gorsuch made on tax-related issues.

One of the biggest issues that Judge Scalia had, along with other judges, dealt with the Commerce Clause of the U.S. Constitution, which allows the federal government to “regulate commerce with foreign nations, and among several states, and with the Indian (Native American) tribes.” This led to a “dormant” Commerce Clause which says that since the federal government regulates interstate commerce, states cannot interfere with commerce between the states unless Congress grants explicit permission. Scalia then remarked that state tax law is to be dealt with by Congress and not the courts. (This led to Maryland being able to charge double taxes on those who had out-pf-state investments.)

Judge Gorsuch shares Scalia’s and other’s criticism on the matter. He stated in regards to Colorado law, Direct Marketing Association v. Brohl, that the “dormant” Commerce Clause is based on judicial precedent. in another state law case, the Quill decision of 1992, Gorsuch explains that states can constitutionally impose tax and regulations much like sales and use tax, which falls in line to the Maryland case the Court overlooked.

Another case, Energy and Environment Legal Institute v. Epel, saw Gorsuch uphold a Colorado mandate which required that 20% of the electricity that the citizens of the state were receiving from generators came from renewable sources. He explained that this particular case does not affect interstate commerce since it is not directly setting a price regulation of any of the business between states.

Semantically, Judge Gorsuch likes to explain the demarcation between what constitutes tax versus fees. Gorsuch explains that tax is the outcome if the purpose of the law is to raise revenue whereas if the purpose is to regulate, then it’s a fee. Characteristics of taxes include a sustain flow of revenue to the government,imposed by state of municipal legislature, and benefits the entire community.