Cite as: 517 U. S. 843 (1996)
Kennedy, J., dissenting
ered in whole or in part for domestic casualty risks. The purpose of the tax is to "eliminate an unwarranted competitive advantage now favoring foreign insurers," H. R. Rep. No. 2333, 77th Cong., 2d Sess., 61 (1942), who do not pay federal income tax. Cf. 26 U. S. C. § 4373(1) (1982 ed.) (exempting from § 4371 any policy issued by a foreign insurer that is "signed or countersigned by an officer or agent of the insurer in a State, or in the District of Columbia, within which such insurer is authorized to do business" and is therefore subject to the income tax).
Resolution of the case requires us to determine whether the Export Clause has any bearing on taxes on services like insurance provided to exporters, where the service itself is not exported. The plain text of the Clause casts much doubt on the proposition. It states: "No Tax or Duty shall be laid on Articles exported from any State," U. S. Const., Art. I, § 9, cl. 5. The majority avoids this necessary question by asserting that the Government failed to argue the point and so abandoned it. Ante, at 855, and n. 3. True, the Government defends § 4371 on the ground that it does not discriminate between exports and other forms of trade, but this is not a concession that there is no distinction between a tax on insurance premiums and a tax on goods. In fact, the Government makes repeated references to the distinction in its briefs, albeit in the context of discussing the nondiscrimina-tory character of § 4371. See, e. g., Brief for United States 12-13 (The tax "does not apply specifically to export transactions; to the contrary, it applies only to insurance risks that are either 'wholly' or 'partly' domestic"); id., at 15 ("The tax imposed by Section 4371 of the Internal Revenue Code is not specifically directed to nor directly 'laid on Articles exported' (U. S. Const. Art. I, § 9, Cl. 5). Instead, it applies to insurance premiums paid to foreign insurers for many forms of insurance, including any casualty risk that is 'wholly or partly within the United States' (26 U. S. C. § 4372(d)(1))"); id., at 34 ("Even as applied to casualty insurance, the tax
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