The Supreme Court is hearing a case, South Dakota v Wayfair Inc, wherein South Dakota is looking to overturn a generation-old ruling that exempts out of state retailers from State sales taxes unless the retailers also have a physical presence in the State. I wrote about one aspect of the matter here among other places.
Here’s another, more critical aspect of the matter [emphasis added].
In a 1992 mail-order catalog case [Quill Corp v North Dakota], the court held that, absent congressional approval, states could impose tax-collection duties only on retailers with a “physical presence” within their borders. Congress, with its constitutional power to regulate interstate commerce, was the place to balance state revenue needs with burdens on business, the court said at the time.
Congress still is the place for such a decision. This is a political matter, not a judicial one, and the Supremes, by overturning their “precedent”—which was nothing more than a recognition of who has law-making authority and who has only law-applying authority—would be usurping law-making authority to themselves.
Unfortunately, it doesn’t end there. South Dakota’s Attorney General, Marty Jackley, argued with a straight face that
the states—45 impose sales taxes, and nearly all support South Dakota’s case—wouldn’t make draconian demands of remote sellers….
Never mind that it’s already draconian to demand that retailers pay taxes they don’t owe.
And this from our favorite Living Constitution Justice, Ruth Bader Ginsburg:
If time and changing conditions have rendered it obsolete, why should the court, which created the doctrine say, “Well, we’ll let Congress fix up what turns out to be our obsolete precedent?”
Except for the small matter that the Court didn’t create this “doctrine,” our Constitution did. That document says, in so many words, that all law-making authority resides in the Congress and nowhere else, and it says further that regulation of interstate commerce is one of the enumerated tasks of that same Congress and not any business of the judiciary.