August 21, 2019 The Tax Lawyer

Did the Supreme Court Do Congress’s Dirty Work When It Killed Quill? State Sales Tax on Remote Sellers and Wayfair

Vol. 72, No. 4 - Summer 2019

R. Lainie W. Harris

Abstract

     In South Dakota v. Wayfair, Inc., the Supreme Court killed Quill Corp. v. North Dakota, but was it the Court’s responsibility to do so? Some doubters, including sitting Supreme Court Justices, argue that the Court went beyond an exercise in the interpretation of constitutional text when it overruled Quill. The dissenting Justices and the decision’s critics posit that it was, and is, the province of Congress alone to regulate commerce. However, even in the face of such criticism, it is impossible to ignore that the Court was Quill’s creator. As the originator of the “bad law” overruled in Wayfair, wasn’t the Court’s reversal simply a way of cleaning up its own mess? Wayfair supplies another installment of Dormant Commerce Clause precedent; it also continues the ever-present battles between Congress and the Court and among the various judicial philosophies of the Justices. By examining the case and the key issues it presented against the central question of whether the Court was doing Congress’s dirty work, the impact of the decision becomes even more significant in light of anticipated changes in both Congress and the Court. Quill is dead, but we find, in asking who should have done the deed, relevant insight for the future of the law.

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