MARKET PARTICIPATION EXCEPTION TO THE COMMERCE CLAUSE: THE MEANING OF 'PUBLIC FUNDS'

摘要

confused courts conflict. The circuits conflict on applicability of the market participation exception. The 6th Circuit not only sets up "public funds" as a threshold determinant of market participation status (following White and Alexandria Scrap), it defines "public funds" relatively narrowly as taxes. Contrariwise, the 2nd Circuit broadly lumps assessments and user fees under the Carbone rubric of "general taxes". And it upheld Stonington's plan even though when the Tinnerello litigation began, the hauler billed and collected commercial fees. The 6th circuit is overly narrow, but the 2nd overly broad. Until other circuits weigh in on this issue and provide consensus, or the Supreme Course takes it up, we can only try to structure service payments to maximize chances of surviving constitutional challenge: private billing agents might qualify; municipal billing should qualify; assessments are better; general taxes are best. But meanwhile, political realities and the changes from the status quo limit our practical options.