Brief of Six Members of Congress in Support of the Petitioner in South Dakota v. Wayfair (Certiorari)

18 Pages Posted: 7 Nov 2017 Last revised: 11 May 2018

See all articles by Alan B. Morrison

Alan B. Morrison

George Washington University - Law School

Darien Shanske

University of California, Davis - School of Law

Date Written: November 2, 2017

Abstract

Six members of Congress filed this amicus brief in South Dakota v. Wayfair in support of South Dakota’s petition of certiorari. The question presented by the petition is: “Should this Court abrogate Quill’s sales-tax-only, physical-presence requirement?” The members of Congress filed this brief to “to provide an anticipatory response to the inevitable objection that respondents will make that this Court should stay its hand and allow Congress to address the serious unfairness problems created by Quill.”

Among other arguments made by the members in this amicus brief is the following: “In the typical situation, a party interested in receiving an advantage from Congress must persuade both Houses and the President to agree. Here, as was recognized at the time Quill was decided, the advantage was instead granted by this Court, and it is therefore the States that must persuade Congress and the President to take it away. Given the built-in, indeed intended, difficulties in enacting federal laws, the current Quill-determined status quo places a very large thumb on the scales on the side of out-of-state sellers. This is especially problematic on federalism grounds because the States are being forced to surmount these hurdles in order to obtain permission from the federal government to use their own taxing powers.”

Suggested Citation

Morrison, Alan B. and Shanske, Darien, Brief of Six Members of Congress in Support of the Petitioner in South Dakota v. Wayfair (Certiorari) (November 2, 2017). Available at SSRN: https://ssrn.com/abstract=3065816 or http://dx.doi.org/10.2139/ssrn.3065816

Alan B. Morrison

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Darien Shanske (Contact Author)

University of California, Davis - School of Law ( email )

400 Mrak Hall Dr
Davis, CA CA 95616-5201

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