Insight: ‘Wayfair’: Covering the Waterfront—Amicus Briefs Supporting Respondents

Bloomberg BNA analyzes at CEI’s amicus brief in South Dakota v. Wayfair

This brief takes a different tack from the others, adopting a nomenclature and approach unfamiliar to those in state tax field. The amicus brief’s seven-page summary is by far the longest of any of the amicus briefs and contrasts the interaction among the states (what the brief calls “horizontal federalism”) with the interaction between the states and the “general” government (“general” is apparently meant to refer to the federal government). The brief refers to interaction between the states and the general/federal government as “vertical” federalism. Id. at 4. The argument section opens with the indisputable statement that the constitution protects each state from encroachment by any other state. Id. at 10. But the obvious question is what constitutes “encroachment.” Unfortunately, this brief does not provide clear direction as to how one might answer this question. Ultimately, in the current environment, the brief prefers the Quill physical presence test to a situation not involving that test. Id. at 23.

Observations: At least to someone not in the fraternity of constitutional scholars, the brief seems to contain statements of constitutional knowledge that start and end without addressing any issue in this case. As one example, page 16 describes prohibitions on states entering into compacts with one another absent Congressional approval. “Unapproved compacts,” it explains, “can be challenged by persons injured thereby.” Id. at 16. However, it is not clear from the brief why this matters to the case at bar. (The discussion does not appear to be referencing SSUTA.) On page 26, the brief castigates South Dakota and other states for “seeking to commandeer outsiders for tax-collection services,” but it is not clear from this brief why vendors who are making a market nationwide (including in South Dakota) should be treated as “outsiders.”

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