June 21, 2018 12:06PM

Supreme Court Clicks Wrong Box in Internet Sales Tax Case

By removing the physical-presence requirement for charging state taxes on internet sales, the Supreme Court in South Dakota v. Wayfair has thrown this area of law into disarray. South Dakota’s tax kicks in at $100,000 or 200 transactions, but other states might set other thresholds or leave it unclear. Overturning bad precedent in and of itself isn’t bad -- when old cases are really wrong and create unworkable legal regimes, they deserve to be overturned -- but here the Court is saying that Quill is out of step with modern Commerce Clause precedents. That’s the wrong way to go: the Court should be conforming its jurisprudence to the original meaning of constitutional clauses, not conforming the Constitution to the times.

One other thing to note is that the justices' voting alignment (Justice Kennedy writing the majority opinion, joined by Justices Thomas, Ginsburg, Alito, and Gorsuch, with the other four in dissent) was unusual, but not surprising in this particular case. This doctrinal area, what constitutional lawyers call the "dormant" Commerce Clause -- that states can't interfere with Congress's implied non-regulation of interstate commerce -- is the only one on which thus far I've found myself in disagreement with Justice Gorsuch's views (and the only constitutional-structure area vis-a-vis Justice Thomas.)

My colleagues Trevor Burrus and Matt Larosiere will have more on this case later in the day.