One can imagine a roughly comparable situation in the statute of limitations context. Had it chosen the first of these remedies, then Hyde's case could continue because the 4 year statute would no longer violate the Federal Constitution. And, her tort claim critically depends upon Ohio tolling law that continues to violate the Commerce Clause. Other tax examples present different, remedial problems. Suppose a State collects taxes under a taxing statute that this Court later holds unconstitutional.
Taxpayers then sue for a refund of the unconstitutionally collected taxes.
Retroactive application of the Court's holding would seem to entitle the taxpayers to a refund of taxes. Depending upon whether or not this independent rule satisfied other provisions of the Constitution, it could independently bar the taxpayers' refund claim. See McKesson Corp. , supra , at 45. This tax scenario simply reflects the legal commonplace that, when two different rules of law each independently bar recovery, then a decision, the retroactive application of which invalidates one rule, will make no difference to the result. The other, constitutionally adequate rule remains in place.