870
MACHINES CORP.
Kennedy, J., dissenting
ers in certain lines exporters purchase, cf. R. Holtom, Underwriting Principles & Practices 451 (3d ed. 1987) (ocean marine insurance dominated by foreign companies). There is no law prohibiting persons from being insured under policies of foreign insurers issued abroad, and nothing in the statute exempts nonexporters from its operation. The Court has all the information it needs to decide this case on the proper basis, and it should not rest its decision that § 4371 is unconstitutional upon a dubious assumption that a general tax on insurance premiums is a tax on export goods.
In Massachusetts v. United States, 333 U. S. 611 (1948), the Government had conceded certain matters of statutory construction which, we felt, undermined its entire position. Id., at 624. We refused to accept those concessions, and, giving the statute its proper interpretation, ruled in the Government's favor. Id., at 625. It mystifies me that in a constitutional case, where our decision is not subject to congressional revision, the Court here accepts the Government's purported concession of the meaning of the Export Clause without any independent examination of the question, and then invokes the Clause to strike down a statute. See Torres v. Puerto Rico, 442 U. S. 465, 471, n. 3 (1979) ("[E]ven an explicit concession" by the Commonwealth of Puerto Rico that it was subject to the requirements of the Fourth Amendment would not "relieve this Court of the performance of the judicial function of deciding the issue") (internal quotation marks omitted).
Quite apart from the unnecessary judgment that an Act of Congress is unconstitutional as applied, today's decision adds significant complexity to the administration of § 4371. Under the thumb of the Court's holding that all premiums paid to insure export goods are exempt from § 4371, but also under the statutory mandate to collect the tax in all other instances, the Internal Revenue Service (IRS) henceforth finds itself faced with an array of new problems unexplained and unmentioned by the Court. Insurance is one of the
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