Being Present: What a Sales Tax Case Demonstrates About Federalism, the Dormant Commerce Clause and the Direction of Supreme Court Jurisprudence

Abstract

The right of the States to impose tax on remote sellers is an issue that calls up various constitutional principles, including (but not limited to) fundamental questions about federalism, the Due Process Clause and the Commerce Clause. In South Dakota v. Wayfair, Inc., the Court is asked for a third time whether a seller with no presence in state may be subject to the tax laws of that jurisdiction. Noting that decisions sourced from the dormant Commerce Clause have a unique place in the Court’s jurisprudence, the majority examines the history of the Commerce Clause up to the precedent that is ultimately overturned. After scrutinizing the heightened standard of Stare Decisis where Congress has the power to Act, the Wayfair decision, though on its face deals with updating a standard to comport with technological advances in commerce, demonstrates more about the Court’s ideological direction with regard to federalism.

Keywords: Sales Tax, eCommerce, State and Local Tax, Nexus, Tax, Federalism, Dormant Commerce Clause