Cite as: 517 U. S. 843 (1996)
Kennedy, J., dissenting
Defendant-in-Error 3-12, in Panama R. Co. v. Johnson, O. T. 1923, No. 369. We cannot here avoid a constitutional question by statutory construction, but we should take all measures to avoid declaring that Congress "usurp[ed] power constitutionally forbidden it," DeBartolo, supra, at 575. The majority cites no case in which we have declared a federal statute unconstitutional by disregarding an unargued theory that would save the statute, and I am not aware of any. We should at least consider a construction of the Export Clause that would render it inapplicable to the statute, rather than assuming the issue away and reaching the unnecessary judgment that a coordinate branch violated the Constitution.
There may be instances, even in constitutional cases, when we should eschew alternative theories for sustaining a statute. For example, we might do so if the theories depend upon different provisions of law or require factual development and legal analysis far afield from that done by the parties or the courts below. That is not this case. The question whether the Export Clause applies to taxes on distinct export-related services requires most of the same inquiries the majority undertakes: construing the text of the Export Clause, considering its history and purpose, and reviewing our precedents. It also requires explicit reexamination of the reasoning of Thames & Mersey Marine Ins. Co. v. United States, 237 U. S. 19 (1915), which the Government has asked us to overrule, in particular the idea that a tax on insurance premiums is a tax on the goods. The last is the only step the Court refuses to take.
There is not, as the Court intimates, ante, at 855, a need for statistical development of the relative incidence of this tax on exporters, unless the Court (as appears unlikely) is interested in the statistics from 1942 to determine if the statute was a pretext when it was enacted. The current incidence of the tax on exporters, whatever it is, will reflect market conditions in light of the operation of this tax over more than 50 years, including the strength of foreign insur-
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