Brief of Four US Senators in South Dakota v. Wayfair (Merits)

34 Pages Posted: 14 May 2018

See all articles by Darien Shanske

Darien Shanske

University of California, Davis - School of Law

Alan B. Morrison

George Washington University - Law School

Date Written: March 5, 2018


Amici agree with petitioner that the physical presence rule established by Quill Corp. v. North Dakota, 504 U.S. 298 (1992), should be overturned. As Justice Kennedy has explained, the decision was “questionable even when decided, [and] now harms States to a degree far greater than could have been anticipated earlier.” Direct Mktg. Ass’n v. Brohl, 135 S.Ct. 1124, 1135 (2015) (Kennedy, J., concurring).

This brief primarily addresses the important question of what will happen if this Court overturns Quill. There is no doubt that the respondents and their amici will argue that vast confusion will ensue if the states are freed from the bright-line rule of Quill. That will not happen for (at least) three reasons. First, there is little evidence that the states would rush to enact a welter of burdensome use tax collection laws and much evidence to the contrary. Furthermore, the same technological innovations that have made the adverse impacts of the Quill rule so problematic for States like South Dakota have also driven down the cost of compliance, thereby reducing the likelihood that state laws can impose significant costs on remote sellers.

Second, should this Court overturn the physical presence rule established in Quill, that does not mean that this Court, or courts generally, will not be able to protect interstate sellers. There are a number of doctrines that remain to guard against potential abuses. First, should a state or locality impose obligations on remote sellers that do not apply to local vendors, then such laws are virtually per se invalid. Second, should a state or locality impose financially significant obligations on remote sellers, then Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), adequately protects them if the “burden imposed [by state laws] is clearly excessive in relation to the putative local benefits.”

Third, Congress is standing by to act should states overstep. The Quill rule reversed the default set up by the Constitution under which states are free to act as sovereigns unless Congress acts. If Quill is overturned and the constitutional default restored, amici believe that Congress is fully prepared to act, especially if the problem to be solved is overreaching by a few states or by certain local tax schemes that collectively place excessive burdens on out-of-state sellers. Furthermore, with the Quill tax shelter no longer available, all the states and interstate sellers will favor establishing standard rules of practice in order to facilitate orderly and efficient revenue collection. In this regard, it is notable that commercial interstate interests have had considerable success in persuading Congress to pass balanced laws that have served to streamline their interactions with state and local revenue authorities while protecting legitimate state interests.

Keywords: sales and use tax collection, Quill, dormant commerce clause

Suggested Citation

Shanske, Darien and Morrison, Alan B., Brief of Four US Senators in South Dakota v. Wayfair (Merits) (March 5, 2018). Available at SSRN: or

Darien Shanske (Contact Author)

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

400 Mrak Hall Dr
Davis, CA CA 95616-5201

Alan B. Morrison

George Washington University - Law School ( email )

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

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