Page:James Dawson, et ux. v. Dale W. Steager, West Virginia State Tax Commissioner.pdf/10

8 . Even if Mr. Dawson’s pension turned out to be identical to a state law enforcement officer’s pension, the law as written would deny him a tax exemption. West Virginia’s law thus discriminates “because of the source of… compensation or pay” in violation of §111. Whether the unlawful classification found in the text of a statute might serve as some sort of proxy for a lawful classification hidden behind it is neither here nor there. No more than a beneficent legislative intent, an implicit but lawful distinction cannot save an express and unlawful one.

Our precedent confirms this too. In Davis, Michigan argued that a state law expressly discriminating between federal and state retirees was really just distinguishing between those with more and less generous pensions. Id., at 816. We rejected this attempt to rerationalize the statute, explaining that “[a] tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits” but “would discriminate on the basis of the amount of benefits received by individual retirees.” Id., at 817. The fact is, when States seek to tax the use of a fellow sovereign’s property, the Constitution and Congress have always carefully constrained their authority. Id., at 810–814. And in this sensitive field it is not too much to ask that, if a State wants to draw a distinction based on the generosity of pension benefits, it enact a law that actually does that.

Because West Virginia’s statute unlawfully discriminates against Mr. Dawson, we reverse the judgment of the West Virginia Supreme Court of Appeals and remand the case for further proceedings not inconsistent with this opinion, including the determination of an appropriate remedy. It is so ordered.