866
MACHINES CORP.
Kennedy, J., dissenting
unquestionably has only an incidental and remote relationship to exports and the export process . . .").
At oral argument, the Assistant to the Solicitor General acknowledged that he had not made a separate argument based on the distinction between export goods and services related to the exporting process. He explained that the nondiscrimination theory had greater utility, sparing courts the nettlesome inquiry into what is an export. Tr. of Oral Arg. 9. When asked why the Government was avoiding the simpler and clearer argument that § 4371 was just a tax on foreign insurers to offset the tax burdens borne by domestic insurers, he responded, "We do not mean to avoid that argument. That's part of our argument of why this is a tax of general application." Id., at 12. Later in oral argument, he stated that "it's problematic to describe a tax on insurance as a tax on the good," and cited that problem as a reason for calling into question our decision in Thames & Mersey. Tr. of Oral Arg. 40. When asked if his position had fore-closed us from deciding the case on that basis, he responded: "I don't believe you're foreclosed . . . by our concession from addressing that issue as you see fit." Ibid. We have relied on statements more equivocal than this to reconsider and overrule a bad precedent even when the parties in their briefs had argued that the precedent should be upheld. See Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U. S. 313, 319-320 (1971).
The Court's faulty characterization of the Government's argument leads it down some odd byways. For example, in Part III-B-3, the Court rejects the Government's attempt to rely upon Department of Revenue of Wash. v. Association of Wash. Stevedoring Cos., 435 U. S. 734 (1978), where we held that a state tax of general applicability imposed upon a stevedoring firm did not violate the Import-Export Clause even though it may have added to the cost of importing and exporting. The Court points out that the tax in Washington Stevedoring did not fall directly on the goods, ante, at 861,
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