15 May 2018

National Erratic Driving Day

…should be established as the day before Mother's Day. And it's not just restricted to motorized vehicles, either; shopping carts can participate, too! <SARCASM> Or maybe it's just the preview of Auto-Body Repair Day. </SARCASM> But all of this shopping (even sharks have mothers) leads to thoughts on jurisprudence.


Due to the inequities of sales tax collection, and the Supreme Court's decision yesterday on sport gambling that previews the chaos to come.

Currently, sales taxes and the Internet are Balkanized by Quill Corp. v. North Dakota, 504 U.S. 298 (1992). Quill held that a seller lacking a physical presence in State B was not obligated to collect sales tax for goods and services shipped to residents of State B — on constitutional, not statutory, grounds. Yesterday's decision in Murphy v. NCAA, No. [20]16–476 (PDF), previews a forthcoming decision challenging the result in Quill on a parallel path — the combination of Congressional power and statutory construction — in a way that implies that at least the result of Quill will remain in place (at least for the present) when the Court issues its decision in South Dakota v. Wayfair, Inc. ("Wayfair") (useful discussion of the progress of oral argument with which I nonetheless fundamentally disagree) in the next few weeks.

The common issue is the so-called "anticommandeering doctrine." Murphy held that as a constitutional matter and through interpretation of the specifics of the statute at issue, Congress cannot demand that states actually do something that is within the respective states' purview. (This is arguably a minor narrowing of "necessary and proper" as it relates to the Commerce Clause, but that's getting much too theoretical and tangential even for me.) The point is that states have even less ability to commandeer each other, or more relevantly here, citizens of another state for the mere purpose of tax collection that is already constitutionally suspect under Quill. No matter how much society and commerce have "evolved" — ironically, that very argument was rejected in Quill itself, see 504 U.S. at 310–16 — there remains, nonetheless, the "distinct sovereigns" problem embedded in both the constitution and every domestic Commerce Clause decision in the past century and a half.

Consistency with Murphy will require that at most the Court reverse Wayfair on the ground that there's no tenable Congressional act authorizing state-to-state sales tax commandeering. After all, under the UCC, the sale is completed in the seller's jurisdiction, at the moment the agreement is reached (or, at latest, the moment the shipment is consigned to a carrier). And if there's one aspect of commerce that has truly "changed" since the long-ago days of Bellas discussed in Quill, it is the adoption of the UCC in the states. And the Court need not even reach the constitutional issue; under the (generally misbegotten and intellectually dishonest) "constitutional avoidance canon," all it need do is point out that the federal statutory scheme is no more acceptable than that in Murphy and save the constitutional issues for another case. <SARCASM> Preferably one not involving a state with a fifty-year history of encouraging banks and credit-card issuers to base themselves there so as to evade usury restrictions imposed in other states. But that, of course, has nothing to do with state-versus-state commandeering. </SARCASM>

Then, too, there's the "not all stupidity is unconstitutional" problem — for yet another day. Sales taxes, and for that matter value-added taxes, are stupid, regressive, anti-union elements of undeclared class warfare by the idle rich against everyone else, especially when not accompanied by equivalent-level nonresidential (or, better yet, extravagent-residential) asset taxes. Fortunately for that class of individuals (which included almost all of the Founding Fathers), there's no "wisdom" component of the Constitution falling within the Judicial Power…