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The formalistic delineation of the commerce clause in the pre-New Deal era gave way to the modern balancing approach largely because the earlier formalism did not adequately resolve the more difficult commerce clause questions created by the growing complexities of modern society. The irrelevance of the Heisler severance-precedes-commerce analysis to the modern problems that surround our national energy policy is a classic example of the failure of the old devices. Issues that were well settled on the legitimate-state-control side of the ledger in the 1920's have shifted to the national-interest side of the ledger today. As energy development assumes greater national importance, state resource taxes will come under closer commerce clause scrutiny. Because of the national importance of domestic energy development, state resource taxation should no longer be protected from commerce clause scrutiny by the severance-precedes-commerce formula. If the tax on the privilege of doing interstate business examined in Complete Auto and the tax on stevedoring at issue in Washington Stevedoring must be "fairly related to the services provided by the State,’ then taxes on the extractive process should meet the same standard.

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Oregon Law Review



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