During the time period in question, Florida law imposed a tax on
all aviation fuel sold within the State to airlines regardless of
whether the fuel was used to fly within or without the State, or
whether the airline engaged in a substantial or a nominal amount of
business within the State. Shortly after the law was enacted,
appellant, a Canadian airline that operates charter flights to and
from the United States, filed a state court action attacking the
law's validity insofar as it authorized assessment of a tax on fuel
used by foreign airlines exclusively in foreign commerce. Granting
injunctive relief, the trial court held that an agreement between
Canada and the United States expressed a "federal policy" to exempt
foreign airlines from fuel taxes and precluded individual States
from acting in such area. The Florida Supreme Court reversed in
part, holding that the agreement did not preempt state sales taxes,
and that the Florida tax was not invalid under the Foreign Commerce
Clause of the Federal Constitution.
1. The Federal Aviation Act does not occupy the field of
international aviation, and thus does not preempt all state
regulation. Where a federal statute does not expressly declare that
state law is preempted, and where there is no actual conflict
between what federal and state law prescribe, there must be
evidence of a congressional intent to preempt the specific field
covered by the state law. In the present case, not only is there no
indication that Congress wished to preclude state sales
Page 477 U. S. 2
of airline fuel, but, to the contrary, the Federal Aviation Act
expressly permits States to impose such taxes. 477 U.
2. The Florida tax does not violate the dormant Foreign Commerce
Clause on the ground that the tax threatens the ability of the
Federal Government to speak with one voice with respect to the
asserted federal policy of reciprocal tax exemptions for aircraft,
equipment, and supplies, including aviation fuel, that constitute
the instrumentalities of international air traffic. The evidence
relied upon for such contention fails to reveal any such federal
policy. Moreover, the evidence shows the absence of the sort of
federal governmental silence that triggers dormant Commerce Clause
analysis. The numerous international documents cited, including the
agreement referred to in the courts below, show that, while there
appears to be an international aspiration
on the one hand
to eliminate all impediments to foreign air travel -- including
taxation of fuel -- the law
as it presently stands
acquiesces in taxation of the sale of that fuel by political
subdivisions of countries. Although most of the cited bilateral
agreements explicitly commit the United States to refrain from
taxes on aviation fuel used by airlines
of the other contracting party, none of the agreements explicitly
interdict state or local taxes on aviation fuel used by foreign
airlines in international traffic. The facts presented by this case
show that the Federal Government has affirmatively decided to
permit the States to impose sales taxes on aviation fuel. Pp.
477 U. S.
455 So. 2d
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined.
BURGER, C.J., filed an opinion concurring in part and concurring in
the judgment, post,
p. 477 U. S. 13
BLACKMUN, J., filed a dissenting opinion, post,
477 U. S. 18
Page 477 U. S. 3
JUSTICE BRENNAN delivered the opinion of the Court.
Appellant Wardair Canada Inc., a Canadian airline that operates
charter flights to and from the United States, maintains in this
action that the Commerce Clause [Footnote 1
] of the Constitution precludes Florida from
applying to it a tax on aviation fuel purchased in that State.
Wardair also asserts that the Florida tax must fall because it
violates a "clear unequivocal directive of Congress," allegedly
implicit in the Federal Aviation Act, 49 U.S.C.App. § 1301 et
(1982 ed. and Supp. II), that the Federal Government has
exclusive regulatory power over foreign air commerce. Brief for
Appellant v, 15.
We disagree with appellant's view and analysis of the operation
of the Commerce Clause, and find that Congress has not acted to
preempt state taxes such as that imposed by Florida. Accordingly,
we affirm the judgment of the Supreme Court of Florida upholding
Florida has for many years taxed the sale of fuel to common
carriers, including airlines, within the State. Prior to April 1,
1983, the tax was prorated on a mileage basis, so that a carrier
was liable for only the portion of the otherwise payable tax that
was equal to the ratio of its Florida mileage to its worldwide
mileage for the previous fiscal year. Fla.Stat. § 212.08 (4)
(1975). Effective April 1, 1983, the Florida
Page 477 U. S. 4
law was amended to repeal the mileage proration formula for
airlines, and the fuel tax was established at a rate of 5% on a
deemed price of $1.148 per gallon. Fla.Stat. § 212.08 (4)(a)(2)
(1985). [Footnote 2
] Under the
amended law, an airline was liable for the full amount of the fuel
tax whether that fuel was used to fly within or without the State,
and regardless of whether the airline engaged in a substantial or a
nominal amount of business within the State. The effect of this
amendment was, of course, to increase substantially the tax
liability of airlines, such as foreign airlines, who fly largely
outside of Florida, and who had, under the old scheme, paid little
Florida tax on fuel.
Shortly after the new law was enacted, appellant filed suit in
state court attacking its validity insofar as it authorized the
assessment and collection of a tax on fuel used by foreign airlines
exclusively in foreign commerce. Wardair argued, among other
things, that the law was unconstitutional under the Commerce
Clause, and that it was inconsistent with the Nonscheduled Air
Services Agreement, May 8, 1974, United States-Canada, Art. XII, 25
U.S.T. 787, T.I.A.S. No. 7826 (U.S.-Canadian Agreement or
Agreement), a bilateral agreement between the Governments of Canada
and the United States regulating air charter service between the
two countries. Wardair's case was consolidated for trial with a
similar suit brought by a number of other foreign airlines.
In a separate order addressing only Wardair's claims, the trial
court rejected the Commerce Clause arguments, but found that the
U.S.-Canadian Agreement expressed a "federal policy" to exempt
foreign airlines from fuel taxes. The court further found that this
"policy" precluded the individual States from acting in this area,
and thus preventing the
Page 477 U. S. 5
United States from "speaking with one voice" with respect to
foreign commerce. In reaching this conclusion, the court relied
largely on our decision in Japan Line, Ltd. v. County of Los
Angeles, 441 U. S. 434
(1979). The court granted appellant a permanent injunction against
the Florida Department of Revenue from assessing and collecting the
fuel tax from Wardair.
The case was certified to the Supreme Court of Florida, which
reversed, in part, the trial court. 455 So. 2d 326
(1984). The Supreme Court first noted that the U.S.-Canadian
Agreement, by its terms, exempted carriers only from national, as
opposed to state or local (or, in the case of Canada, provincial)
excise taxes, inspection fees, and other charges, and thus held
that the Agreement did not preempt state sales taxes. Nor was the
court persuaded that the Florida tax was invalid under the Foreign
Commerce Clause. The court again referred to the fact that the
Agreement exempted only national taxes, and "presume[d] this has
been done intentionally." Id.
at 329. Having determined
that the Federal Government had, in effect, itself elected not to
prohibit the States from taxing aviation fuel, the court rejected
the contention that the state tax "prevents our federal government
from speaking with one voice," ibid.,
distinguished Japan Line.
We noted probable jurisdiction,
474 U.S. 943 (1984), and now affirm.
Wardair suggests that, by enacting the Federal Aviation Act
(Act), Congress "left no room for local government participation"
with respect to foreign air travel. Brief for Appellant 39.
Appellant does not expressly label this a preemption argument;
rather, it relies on metaphor and tells us that,
"in the field of foreign air commerce, it is the Federal
Government that calls the tune. It is the Federal Government that
is the conductor of the music, deciding how it is to be played and
who are the players."
at 44. We
Page 477 U. S. 6
assume that appellant intends, by this metaphor, to persuade us
that Congress has determined to "occupy the field" of international
aviation, and thus to preempt all state regulation. The argument is
It is, of course, true, as appellant notes, that Congress has,
through the Act, regulated aviation extensively. The agencies
charged by Congress with regulatory responsibility over foreign air
travel exercise power, as appellant observes, over licensing, route
services, rates and fares, tariffs, safety, and other aspects of
air travel. However, state law is not preempted whenever there is
any federal regulation of an activity or industry or area of law.
The Supremacy Clause, among other things, confirms that, when
Congress legislates within the scope of its constitutionally
granted powers, that legislation may displace state law, and this
Court has throughout the years employed various verbal formulations
in identifying numerous varieties of preemption. See, e.g.,
Louisiana Public Service Comm'n v. FCC, 476 U.
, 476 U. S.
-369 (1986). But we have consistently emphasized that
the first and fundamental inquiry in any preemption analysis is
whether Congress intended to displace state law, and where a
congressional statute does not expressly declare that state law is
to be preempted, and, where there is no actual conflict between
what federal law and state law prescribe, we have required that
there be evidence of a congressional intent to preempt the specific
field covered by the state law. Pacific Gas & Electric Co.
v. State Energy Resources Conservation and Development Comm'n,
461 U. S. 190
(1983); Silkwood v. Kerr-McGee Corp., 464 U.
(1984). In the present case, not only is there no
indication that Congress wished to preclude state sales taxation of
airline fuel, but, to the contrary, the Act expressly permits
States to impose such taxes. Section 1113 of the Act, as added, 87
Stat. 90, and as amended, 49 U.S.C.App. § 1513, addresses the issue
of "State taxation of air commerce," detailing in § 1113(a) the
kinds of taxes which are prohibited, and in § 1113(b) those
Page 477 U. S. 7
which are permissible. Among the permissible taxes are "sales or
use taxes on the sale of goods or services." It is, of course,
plausible that Congress never considered whether States should be
permitted to impose sales taxes on foreign, as opposed to domestic,
carriers, and therefore we do not rely on the existence of this
section to answer the Commerce Clause issue raised here by
appellant and considered by us infra.
section of the Act does provide the complete response to
appellant's preemption argument. For what § 1113(b) shows is that,
to the degree that Congress considered the power of the States to
tax air travel, it expressly and unequivocally permitted the States
to exercise that authority. In other words, rather than prohibit
state regulation in the area, Congress invited it. This is not the
stuff of preemption.
In cases involving the so-called dormant Commerce Clause, both
interstate and foreign, the Federal Government has not
affirmatively acted, and it is the responsibility of the judiciary
to determine whether action taken by state or local authorities
unduly threatens the values the Commerce Clause was intended to
serve. See Southern Pacific Co. v. Arizona, 325 U.
(1945). As we have previously observed:
"The few simple words of the Commerce Clause . . . reflected a
central concern of the Framers that was an immediate reason for
calling the Constitutional Convention: the conviction that, in
order to succeed, the new Union would have to avoid the tendencies
toward economic Balkanization that had plagued relations among the
Colonies and later among the States under the Articles of
Hughes v. Oklahoma, 441 U. S. 322
441 U. S.
-326 (1979). In recognition of the importance of this
conviction, we have acknowledged the self-executing nature of the
Commerce Clause, and held on countless occasions that, even in the
absence of specific action taken by the Federal Government to
disapprove of state regulation implicating interstate or foreign
Page 477 U. S. 8
regulation that is contrary to the constitutional principle of
ensuring that the conduct of individual States does not work to the
detriment of the Nation as a whole, and thus ultimately to all of
the States, may be invalid under the unexercised Commerce Clause.
See H. P. Hood & Sons, Inc. v. DuMond, 336 U.
(1949); Southern Pacific Co. v. Arizona,
In the unique context of foreign commerce, we have
alluded to the special need for federal uniformity:
"'In international relations and with respect to foreign
intercourse and trade, the people of the United States act through
a single government with unified and adequate national power.'
Board of Trustees v. United States, 289 U. S.
, 289 U. S. 59
441 U.S. at 441 U. S. 448
As in the context of cases alleging violations of the dormant
Interstate Commerce Clause, the concern in these Foreign Commerce
Clause cases is not with an actual conflict between state and
federal law, but rather with the policy of uniformity, embodied in
the Commerce Clause, which presumptively prevails when the Federal
Government has remained silent.
When a state tax is challenged as violative of the dormant
Interstate Commerce Clause, we have asked four questions: is the
tax applied to an activity with a substantial nexus with the taxing
State; is the tax fairly apportioned; does the tax discriminate
against interstate commerce; and is the tax fairly related to the
services provided by the State. Complete Auto Transit, Inc. v.
Brady, 430 U. S. 274
430 U. S. 279
(1977). In Japan Line, supra,
we noted that, when the
state tax allegedly interferes with the Federal Government's
authority to regulate foreign commerce, two additional questions
must be asked:
"first, whether the tax, notwithstanding apportionment, creates
a substantial risk of international multiple taxation, and, second,
whether the tax prevents the Federal Government from speaking with
one voice when regulating commercial relations with foreign
at 441 U. S.
In the present case, appellant concedes that Florida's tax
satisfies the four-part test set out in Complete Auto.
Page 477 U. S. 9
other words, it is not disputed that, if this case did not
involve foreign commerce, the Florida tax on the sale of aviation
fuel would not contravene the Commerce Clause. Appellant also
recognizes that there is no threat of multiple international
taxation in this case, since the tax is imposed only upon the sale
of fuel, a discrete transaction which occurs within one national
jurisdiction only. Appellant and the United States as amicus
thus rely entirely on the final factor identified in
and argue that the Florida tax violates the
Foreign Commerce Clause because it threatens the ability of the
Federal Government to "speak with one voice." Specifically, they
urge that there exists a federal policy of reciprocal tax
exemptions for aircraft, equipment, and supplies, including
aviation fuel, that constitute the instrumentalities of
international air traffic, and that this "policy" represents the
statement that the "one voice" of the Federal Government wishes to
make, and which is threatened by the state law. We disagree. In our
view, the evidence relied upon by appellant and the United States
not only fails to reveal any such federal policy, but, even more
fundamentally, shows also that, in the context of this case, we do
not confront federal governmental silence of the sort that triggers
dormant Commerce Clause analysis. On the contrary, the
international agreements cited demonstrate that the Federal
Government has affirmatively acted, rather than remained silent,
with respect to the power of the States to tax aviation fuel, and
thus that the case does not call for dormant Commerce Clause
analysis at all. Moreover, in our view, the actions taken by the
Federal Government accept the authority of States to tax as Florida
has here, and lend further support to the position and views
advanced by appellee and relied on by the Florida Supreme Court in
rejecting Wardair's arguments.
Appellant and the United States maintain that the policy of tax
exemption for the instrumentalities of international air traffic is
manifested by, among other things, (1) the Chicago Convention on
International Civil Aviation, opened for signature,
Page 477 U. S. 10
Dec. 7, 1944, 61 Stat. 1180 (Chicago Convention), an
international convention to which the United States and 156 other
nations, including Canada, are parties; (2) a Resolution
(Resolution) adopted November 14, 1966, by the International Civil
Aviation Organization (ICAO), an organization of which the United
States is a member by virtue of being a party to the Chicago
Convention; (3) more than 70 bilateral agreements, including the
U.S.-Canadian Agreement, into which the United States has entered
with various foreign countries dealing with international aviation.
But what these documents show is that while there appears to be an
on the one hand to eliminate all
impediments to foreign air travel -- including taxation of fuel --
as it presently stands acquiesces in taxation of
the sale of that fuel by political subdivisions of countries. Thus,
Article 24(a) of the Chicago Convention, by its terms, precludes
the imposition of local taxes on fuel only when the fuel is "on
board an aircraft . . . on arrival . . . and retained on board on
leaving" a contracting party; it does not prohibit taxation of fuel
purchased in that country. 61 Stat. 1186. We agree with
National Governors' Association et al.
the negative implications of this provision support recognizing
Florida's power to tax; certainly, the provision demonstrates the
international community's awareness of the problem of state and
local taxation of international air travel, specifically aviation
fuel, and represents a decision by the parties to that Convention
to address the problem by curtailing and limiting only some of the
localities' power to tax, while implicitly preserving other aspects
of that authority.
Nor does the Resolution provide support for appellant's
contention that there is a clear national policy of exempting
aviation fuel from state sales taxes. While the Resolution
undeniably does endorse an international scheme whereby fuel would
be exempt "from all customs and other duties,'" which it
defines as including "`import, export, excise, sales, consumption
and internal duties and taxes of all kinds levied
Page 477 U. S.
. . . by any taxing authority within a State,'" Brief for
United States as Amicus Curiae 12 (Sept. 17, 1985),
quoting Resolution pp. 3, 4 (emphasis deleted), the Resolution is
formally merely the work product of an international organization
of which the United States is a member; it has not been
specifically endorsed, let alone signed, entered into, agreed upon,
approved, or passed by either the Executive or Legislative Branch
of the Federal Government. In other words, no action has been taken
to give the Resolution the force of law. While it is not argued by
either appellant or by the United States as amicus that
this Resolution, in and of itself, should operate to preempt state
law, we also think it untenable to assert, as they do, that this
Resolution represents a policy of the United States, as
opposed to a policy of an organization of which the United States
is one of many members.
Our reluctance in this regard is bolstered by the fact that the
United States has, since the time that the Convention came into
force, become a party to more than 70 bilateral aviation
agreements, and in not one of these agreements has the United
States agreed to deny the States the power asserted by Florida in
this case. Most of these agreements explicitly commit the United
States to refrain from imposing national taxes on aviation fuel
used by airlines of the other contracting party, see
for United States as Amicus Curiae
14-17, 19, but, as the
United States concedes,
"none of our bilateral aviation agreements explicitly interdicts
state or local taxes on aviation fuel used by foreign airlines in
at 17. Most strikingly as it relates to the case
before us, the U.S.-Canadian Agreement itself limits the tax
exemption to be afforded to foreign air carriers to "national
duties and charges." App. A-58. Taxation by political subdivisions
of either the United States or Canada is not mentioned, an omission
which must be understood as representing a policy choice by the
contracting parties, especially in light of the fact that the
Resolution addressed this concern eight years before the United
States and Canada entered
Page 477 U. S. 12
into the Agreement. We note that, throughout the time that the
U.S.-Canadian Agreement has been in force, some American States, as
well as some Canadian Provinces, have imposed taxes within their
jurisdictions on aviation fuel used by Canadian and American
carriers, respectively, in international travel. Furthermore, there
was not, until recently, any challenge to the localities' legal
authority to do so. Although not dispositive, this course of
conduct suggests that the parties to the Agreement and those most
immediately affected by it understood it to permit this sort of
What all of this makes abundantly clear is that the Federal
Government has not remained silent with regard to the question
whether States should have the power to impose taxes on aviation
fuel used by foreign carriers in international travel. By negative
implication arising out of more than 70 agreements entered into
since the Chicago Convention, the United States has at least
acquiesced in state taxation of fuel used by foreign carriers in
international travel. Again, in the U.S.-Canadian Agreement, only
"national" charges are barred, and we presume that drafters from
two federalist nations understood this as representing a choice not
to preclude local taxation. It would turn dormant Commerce Clause
analysis entirely upside down to apply it where the Federal
Government has acted, and to apply it in such a way as to
the policy that the Federal Government has elected
to follow. For the dormant Commerce Clause, in both its interstate
and foreign incarnations, only operates where the Federal
Government has not spoken to ensure that the essential attributes
of nationhood will not be jeopardized by States acting as
independent economic actors. However, the Federal Government is
entitled, in its wisdom, to act to permit the States varying
degrees of regulatory authority. In our view, the facts presented
by this case show that the Federal Government has affirmatively
decided to permit the States to impose these sales taxes on
aviation fuel. Accordingly,
Page 477 U. S. 13
there is no need for us to consider, and nothing in this opinion
should be understood to address, whether, in the absence of these
international agreements, the Foreign Commerce Clause would
invalidate Florida's tax.
In Japan Line,
441 U.S. at 441 U. S. 451
we explained that Foreign Commerce Clause analysis requires that a
court ask whether a state tax "prevents the Federal Government from
speaking with one voice when regulating commercial relations
with foreign governments.'" But we never suggested in that case or
any other that the Foreign Commerce Clause insists that
the Federal Government speak with any particular voice.
In light of the above, the judgment of the Supreme Court of
The Constitution provides that "Congress shall have Power . . .
To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes." Art. I, § 8, cl. 3.
Florida has since substantially amended its statute which
imposes taxes on aviation fuel. Those amendments, which became
effective July 1, 1985, do not in any way bear on the present
controversy, which concerns only appellant's tax liability from
April 1, 1983, to July 1, 1985.
CHIEF JUSTICE BURGER, concurring in part and concurring in the
The Court acknowledges in its discussion in Part II concerning
the scope of the Federal Aviation Act that
"not only is there no indication that Congress wished to
preclude state sales taxation of airline fuel, but, to the
contrary, the Act expressly permits States to impose such
at 477 U. S. 6
being so, I see no reason for the discussion in 477 U.
While 49 U.S.C.App. § 1513(a) describes a number of state taxes
which are prohibited, § 1513(b) expressly permits state "sales or
use taxes on the sale of goods or services." The fuel tax
challenged here is plainly a "sales or use ta[x] on the sale of
goods" within the language of § 1513(b).
Remarkably, the Court nevertheless refuses to "rely on the
existence of this section to answer the Commerce Clause issue
raised here" because it believes it is
"plausible that Congress never considered whether States should
be permitted to impose sales taxes on foreign,
to domestic, carriers."
at 477 U. S. 7
(emphasis added). Accordingly, the Court continues with an extended
discussion of "the so-called dormant Commerce Clause," which
applies to cases involving
Page 477 U. S. 14
areas where "the Federal Government has not affirmatively
The plain language of § 1513(b)
demonstrates, however, that there is nothing
The conclusion the Court reaches in 477 U.
which followed our decision in
Evansville-Vanderburgh Airport Authority Dist. v. Delta
Airlines, Inc., 405 U. S. 707
(1972). In that case the Court upheld a $1-per-passenger "head tax"
on all passengers boarding airplanes at the Evansville airport,
after rejecting a Commerce Clause attack because the tax did not
discriminate between interstate and intrastate commerce.
Congress reacted immediately to our decision by holding hearings
on local taxation of air transportation. See
S. 2397 et al.
before the Subcommittee on Aviation of the
Senate Committee on Commerce, 92d Cong., 2d Sess., 129-198 (1972)
(hereafter Senate Hearings); Hearings on H.R. 2337 et al.
before the Subcommittee on Transportation and Aeronautics of the
House Committee on Interstate and Foreign Commerce, 92d Cong., 2d
Sess. (1972) (hereafter House Hearings). The result of these
hearings was the enactment of § 7(a) of the Airport Development
Acceleration Act of 1973, see
Pub.L. 93-44, § 7(a), 87
Stat. 90, which added § 1113 to the Federal Aviation Act, and which
is now codified, as amended, at 49 U.S.C.App. § 1513.
We subsequently addressed the scope of § 1513(a)'s prohibition
when confronted with Hawaii's state tax on the gross income of
airlines operating within that State. See Aloha Airlines, Inc.
v. Director of Taxation, 464 U. S. 7
Reviewing the legislative history, the Court pointed out that §
1513 was enacted out of congressional concern that "the
proliferation of local taxes burdened interstate air
at 464 U. S. 9
(citing S.Rep. No. 93-12, pp. 17, 20-21 (1973), and H.R.Rep. No.
93-157, pp. 4-5 (1973)). We concluded unanimously that Hawaii's tax
was expressly preempted
Page 477 U. S. 15
by the plain language of § 1513(a), 464 U.S. at 464 U. S. 11
"when a federal statute unambiguously forbids the States to
impose a particular kind of tax on an industry affecting interstate
commerce, courts need not look beyond the plain language of the
federal statute to determine whether a state statute that imposes
such a tax is preempted."
at 464 U. S. 12
In the course of our discussion of § 1513(a), we addressed the
Hawaii Supreme Court's
"professed confusion over the 'paradox' between § 1613(a)'s
prohibition on certain state taxes on air transportation and §
1513(b)'s reservation of the States' primary sources of revenue,
such as property taxes, net income taxes, franchise taxes, and
sales or use taxes."
at 464 U. S. 12
6. Our resolution of this "paradox" is enlightening:
"We find no paradox between § 1513(a) and § 1513(b). Section
1513(a) preempts a limited number of state taxes, including gross
receipts taxes imposed on the sale of air transportation or the
carriage of persons traveling in air commerce. Section 1513(b)
clarifies Congress' view that the States are still free to impose
on airlines and air carriers 'taxes other than those enumerated in
subsection (a),' such as property taxes, net income taxes, and
franchise taxes. While neither the statute nor its legislative
history explains exactly why Congress chose to distinguish between
gross receipts taxes imposed on airlines and the taxes reserved in
§ 1513(b), the statute is quite clear that Congress chose to make
the distinction, and the courts are obliged to honor this
Careful review of the legislative history indicates that it is
not entirely silent as to why Congress chose to make this
particular distinction. The Senate's first proposal to
Page 477 U. S. 16
limit state taxation would have prohibited any state tax --
direct or indirect -- on air transportation. S. 3611, 92d Cong., 2d
Sess. (1972); see also
H.R. 2337, 92d Cong., 1st Sess.
(1971) (similar prohibition). The States, however, complained
loudly at the hearings that this sweeping provision would prohibit
even unobjectionable taxes such as landing fees, fuel taxes, and
sales taxes on food provided to airline passengers. E.g.,
House Hearings, at 91 (statement of John A. Nammack, Executive Vice
President, National Association of State Aviation Officials). This
broad interpretation was supported by officials from the Civil
Aeronautics Board and the Federal Aviation Administration, who
objected to any such broad prohibition because it would deprive
local governments of funds necessary for maintenance of airports.
Senate Hearings, at 138 (statement of Whitney Gillilland, Vice
Chairman, CAB); id.
at 140-141 (statement of Ronald W.
Pulling, Acting Associate Administrator for Plans, FAA). In reply,
Members of Congress assured these officials that the prohibition
was intended to apply only to "head taxes" and the like, and that
some clarification of the bill's intent would be in order.
at 138, 151, 157 (statements of Sen.
Cannon). See also
House Hearings, at 99 (statement of Rep.
at 101 (statement of Rep. Harvey). The final
bill enacting § 1513 therefore appears to be a compromise following
careful consideration by Congress as to the permissible scope of
state taxation in the area of air commerce.
Most relevant to the issue before us in this case is the fact
that nowhere in that legislative history is there any indication
that Congress intended to limit the applicability of § 1513(b) to
state taxation of interstate
air commerce, while
prohibiting taxation of foreign air
commerce. To the
contrary, Congress was fully aware that the bill would cover
foreign air commerce, since both the State Department and the
Senate's own Legislative Council advised Congress that "air
commerce" as employed in the proposed bill encompassed foreign
Page 477 U. S. 17
and overseas air commerce. See
Senate Hearings, at 136
(letter of David M. Abshire, Department of State); id.
207 (memorandum of Peter W. LeRoux, Senior Counsel, Office of
Legislative Council). Moreover, Congress discussed the effect of
foreign "head taxes" if similar local taxes were barred. House
Hearings, at 35-37.
The language of the Act bears this out. Section 1513(a)'s
prohibition refers to certain taxes "on persons traveling in air
commerce . . . or on the sale of air transportation." The Act
defines "air commerce" as including "interstate, overseas, or
foreign air commerce." 49 U.S.C.App. § 1301(4). Similarly, "air
transportation" is defined as including "interstate, overseas, or
foreign air transportation." § 1301(10). Under the plain language
of § 1513, therefore, the Florida tax -- even in the area of
foreign air commerce -- is expressly authorized by Congress.
Just as we need not look beyond the plain language
"when a federal statute unambiguously forbids
States to impose a particular kind of tax on an industry affecting
464 U.S. at 12 (emphasis added), we
need not look beyond the plain language of a federal statute which
the States to impose a particular
kind of tax. Section 1513(b) authorizes state sales taxes on goods
used in air commerce. While Congress has not explained exactly why
it made the distinction between taxes prohibited under § 1513(a)
and those permitted under § 1513(b), "Congress chose to make the
distinction, and the courts are obliged to honor this congressional
choice." 464 U.S. at 464 U. S. 12
By refusing to decide this case solely on the express language
of § 1513(b), and instead entering the cloudy waters of this
Court's "dormant Commerce Clause" doctrine, the Court fails to
honor the choice already pointedly made by Congress following its
extensive consideration of the problem of state taxation in this
Page 477 U. S. 18
JUSTICE: BLACKMUN, dissenting.
In Japan Line, Ltd. v. County of Los Angeles,
441 U. S. 434
(1979), this Court recognized that the Commerce Clause commits to
the exclusive authority of the Federal Government the regulation of
those aspects of foreign commerce that, by their very nature,
"necessitate a uniform national rule." Id.
at 441 U. S. 449
In regulating commercial relations with foreign governments,
"the Federal Government must speak with one voice.'"
Ibid., quoting Michelin Tire Corp. v. Wages,
423 U. S. 276,
423 U. S. 285
(1976). As a result, the Court, in Japan Line, held that
the imposition of California's ad valorem property tax on
foreign-owned containers used exclusively in foreign commerce was
unconstitutional. The tax imposed in this case by Florida on fuel
is indistinguishable, for Commerce Clause purposes, from the tax
imposed by California on containers in Japan Line. Because
a State's taxation on fuel used in foreign commerce will prohibit
the Federal Government from speaking with "one voice," I believe
that this application of Florida's tax violates the
The Court, however, finds Japan Line
asserting that "we do not confront federal governmental silence of
the sort that triggers dormant Commerce Clause analysis."
at 477 U. S. 9
the Court, that the Federal Government has addressed some aspects
of foreign aviation taxation, but has not expressly prohibited the
imposition of state and local taxes, see ante
477 U. S. 10
is a sufficient basis for upholding the tax at issue here.
Apparently, the Court believes that, once the Federal Government
has spoken at all in an area, the Commerce Clause operates to
permit States to act except if such action is expressly prohibited.
But we have never permitted validation of state burdens on foreign
commerce through this sort of implication.
For a state regulation to be removed from the reach of the
dormant Commerce Clause, the intent of the Federal Government to
permit state activity "must be unmistakably
Page 477 U. S. 19
clear." South-Central Timber Development, Inc. v.
Wunnicke, 467 U. S. 82
467 U. S. 91
(1984). And the "need for a consistent and coherent foreign policy,
which is the exclusive responsibility of the Federal Government,"
heightens the need for affirmative approval. Id.
467 U. S. 92
7. The Court's holding today is based not on the presence of this
requisite "affirmative approval"; rather, the Court relies on a
"negative implication arising out of more than 70 agreements" that
indicate that "the United States has at least acquiesced
in the kind of tax imposed here (emphasis added). Ante
477 U. S. 12
Whether or not these agreements suggest acquiescence is beside the
point; what is clear is that the Federal Government has not
provided the affirmative approval required to permit States to
The Government's efforts in the international sphere reveal an
overarching and coherent policy directed at the creation of
reciprocal tax exemptions in the area of foreign aviation. The
Nation's aviation relations with foreign governments are
implemented through a comprehensive network of treaties, bilateral
executive agreements, informal arrangements, and federal statutes.
Although these provisions stop short of explicitly banning state
levies on aircraft fuel used in foreign travel, the indisputable
pattern that emerges is one of a policy of reciprocal tax
exemptions for instrumentalities of international commerce, like
the containers in Japan Line
and the fuel at issue here.
The Government's inability to date to achieve full international
consent to reciprocal tax exclusions neither negates nor
demonstrates the absence of federal policy; it simply means that
the United States has not fully succeeded, as yet, in transforming
its policy into law. Indeed, the "aspiration . . . to eliminate all
impediments to foreign air travel" (emphasis deleted), recognized
by the Court, ante
at 477 U. S. 10
precisely the federal policy that renders the application of
Florida's tax to the fuel here unconstitutional.
The decision today leaves Florida and other States free to tax
foreign aviation, and will hinder the United States in
Page 477 U. S. 20
its efforts to attain reciprocal tax immunity with foreign
governments. Florida's action may well undermine reciprocity
agreements, since other countries may react to Florida's tax with
various retaliatory measures against United States carriers abroad,
retaliation that "of necessity would be felt by the Nation as a
whole." Japan Line,
441 U.S. at 441 U. S. 453
Florida's actions may also hamper the United States' position in
negotiations designed to achieve the federal policy of reciprocity,
because the Nation cannot speak with "one voice." In Japan
this Court made clear that a State,
"by its unilateral act, cannot be permitted to place . . .
impediments before this Nation's conduct of its foreign relations
and its foreign trade."
Because the Court's decision today permits just
that, I respectfully dissent.