21 June 2018

The Summer of Our Discontent

…starts today. Because it was the Spring of our discontent through yesterday.

  • As another entry in the "stupid doesn't necessarily mean unconstitutional" list, the Supreme Court — in a frighteningly internally inconsistent 5–4 majority opinion that on first reading undermines over a century of personal jurisdiction law — determined that there is no constitutional barrier to a state imposing a sales-tax-collection requirement on out-of-state vendors who ship merchandise (and services, even though services were not actually at issue in this lawsuit, and I have serious Sixth Amendment concerns here) into that state. South Dakota v. Wayfair, Inc., No. [20]17–494 (PDF).

    South Dakota purports to apply this to "only" big merchants, but the statute in question simply does not reflect reality. (The irony that the basis for the Court's decision is that the longstanding ban on out-of-state sales tax collection did not reflect reality was never even touched.) Under the terms of South Dakota's statute, if one has either $100,000 in shipments to South Dakota or 200 items shipped to South Dakota in a given year, that suffices. Imagine, for the moment — and I am not going to name the specific exemplar — a Florida-based writer on Native American activism who sells collections of his/her/their articles cheaply from her website — let's say $1.99, so that there's no undercutting of the current Amazon Direct Publishing pricing requirements. If that writer sold 222 copies of a collection that discussed, say, Wounded Knee, to South Dakota residents in a given year, the $441.78 in retail sales would subject that writer to South Dakota's reporting-and-collection requirements. Forever (because once in the system, the reporting requirement continues even when no sales are made and no tax is due — which is the default for state-imposed sales tax systems). So the statute itself needs a reality check; I would say that regarding all sales tax statutes — and even moreso for VAT.

    My Sixth Amendment concerns begin in Sioux City, Iowa — just across the border from South Dakota. Consider, for the moment, South Dakota residents (formerly) employed at the Gateway Computers operation in Iowa. (Remember Gateway? The cow-patterned boxes with cheap parts, haphazard assembly, and an insidious arbitration clause for an illusory arbitration system not actually available to consumers that was hidden in later pages of documents reviewable only after delivery?) Let's consider an Iowa-based employment-law attorney who, in a year, handles workers' compensation and similar matters for 200 or more South Dakota residents, all arising from that Iowa-based location. Or an IP attorney several states over who represents a South Dakota-based band and sends 237 DMCA notices on behalf of that band. Or, more broadly and beyond the Sixth Amendment, a medical clinic in Minnesota that also sees South Dakota residents and can foresee that prescriptions will be filled in South Dakota… such as for birth control and other women's-reproductive-health medications. In short, "stupid" is probably being generous.

  • Meanwhile, the Supreme Court's failure over the last half-century to abrogate Korematsu and Hirabayashi continue to cause trouble in immigration cases. I continue to urge the Court to overturn them formally and definitively.
  • And the less said about child cruelty, the better. One could reasonably infer that the only persons who have inalienable rights under this Administration — and this set of Heffalumps in power — are dead Presidents (and dead Ben Franklin). Apparently, money isn't just speech. Further, one must wonder whether Jefferson Beauregard Sessions has ever read a scholarly discussion of Romans 13 (not my preferred text, but close enough, especially reading verses 8-10), let alone pondered even a bit of the history of its use and misuse. More to the point, he's neglected to note that Romans 13 concerns itself with taxes, revenues (customs duties), honor, and respect — not with discrimination — in even the least-scholarly translations.