The Political Process Argument for the Supreme Court to Overrule Quill

67 Pages Posted: 28 Sep 2016

See all articles by Edward A. Zelinsky

Edward A. Zelinsky

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: September 27, 2016


Should the U.S. Supreme Court overrule Quill Corporation v. North Dakota? In Quill, the Court held that, under the dormant Commerce Clause of the U.S. Constitution, the states cannot impose the obligation to collect sales taxes on out-of-state vendors which lack physical presence in the taxing state. As internet commerce has grown, Quill’s physical presence test has severely hampered the states’ ability to enforce their sales taxes.

Much of the Supreme Court’s case law suggests that, under the banner of stare decisis, the Court should not overturn Quill. This case law indicates that it is Congress’s job to modify or reject the physical presence test established in Quill. Quill was decided under the dormant Commerce Clause and thus can be overturned by Congress.

However, a careful assessment of the federal political process suggests a contrary conclusion, namely, that the Supreme Court itself should overturn Quill in the Court’s role as guardian of the states against federal commandeering. A combination of factors underlay this conclusion: the tactical advantage which Quill bestows in the political process upon the internet and mail order industries, the importance of the states in the structure of federalism, the centrality of sales taxes to the financing of state government, the severe impediment which Quill and its physical presence test impose upon the collection of these taxes, and the unique disadvantages of the states in the federal legislative process.

In our system of federalism as it exists today, the states are structurally important but politically disadvantaged. Federal legislators receive no political benefits from helping the states. This contrasts with the political support – votes and campaign contributions – private groups bestow for legislative backing.

Quill effectively commandeers the states to subsidize internet commerce by not taxing it. Quill also hands great political advantage to the defenders of the status quo, the internet and mail order sales industries which effectively sell their goods sales tax-free because of Quill’s physical presence test. In the federal lawmaking process, defenders of current law have the politically easier task of blocking change in a process which affords them many opportunities to obstruct change. Quill gives that advantage to the internet and mail order industries which need merely impede legislation to preserve the status quo – as they have done successfully for over two decades.

Hence, in the final analysis, the Court itself should, despite the force of stare decisis, overturn Quill rather than rely on Congress to abolish the physical presence test which severely hampers the states’ collection of their sales taxes in the face of the growth of internet commerce.

Keywords: Quill, National Bellas Hess, interstate commerce, dormant commerce clause, physical presence test, sales tax, use tax, commandeer, political process

Suggested Citation

Zelinsky, Edward A., The Political Process Argument for the Supreme Court to Overrule Quill (September 27, 2016). Brooklyn Law Review , Vol. 82, Cardozo Legal Studies Research Paper No. 496, Available at SSRN:

Edward A. Zelinsky (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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