Tag Archives: courts

It Still Is

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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.

State Taxation of Internet Businesses

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The Supreme Court is hearing a case, South Dakota v Wayfair Inc, that seeks to overturn an older precedent that prevents States from taxing businesses doing business in the State that don’t have a physical presence there.  South Dakota is claiming that

…the 1992 precedent harms state treasuries and disadvantages taxpaying home-grown businesses.

That argument might hold water if the States were powerless. They’re not. There’s nothing at all preventing them from lowering the tax rates they impose on the brick-and-mortar and home-grown businesses resident in those States so they can compete. There’s nothing at all preventing the States from lowering their spending rates and thereby protecting their treasuries.

There’s nothing at all preventing the States from taking advantage of the increased economic activity that would result.

A Better Answer

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The Supreme Court might take up a case involving cy pres, the policy of handing class action suit settlement fund “leftover” money to third parties.  It’s especially used where the number of plaintiffs in the class is huge.

In privacy or data-breach cases, where the number of potential plaintiffs reaches into the millions, the majority of a settlement can go to cy pres recipients.

A 2015 class-action settlement involving Alphabet that centered on its Google subsidiary would have led, after the lawyers’ cut, to four-cent checks being sent to each of nearly 130 million plaintiffs, for instance.

Cy pres also becomes a player when the bulk of the funds are distributed and the remainder is impractical to distribute (“impractical” generally is determined by the court involved, or by the court’s acceptance of an agreement between plaintiffs and defendant(s)).

The Court should take the case and strike the practice.  Part One of a better answer, which the Court can impose, is to reduce the permissible per centage of the total payout that can go to the lawyers.  That would leave more money for the payout and reduce, if only by a little, one of the problems: the pennies distributed were all the monies disbursed to the plaintiffs.

Part Two of the better answer is a political decision, and so it’s beyond the reach of the Court; although, the Justices can, and should, inveigh Congress to address the matter.  That political decision is to bar the leftover monies from going to third parties.  By definition, those entities were not victims of the misbehavior that led to the payout, and so they should not receive any of it.  Instead, the leftovers should be delivered to the Federal or State Treasury, depending on whether the case was a Federal or State one.

Part Two-a of the better answer likely would find the most use in those privacy or data-breach cases, where all of the plaintiffs might each get impractically small payouts.  In this sort of case, all of the settlement funds should go to the Federal or State Treasury.

A District Judge Gets One Right

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Senior Federal District Court Judge for the District of Maryland Roger Titus has ruled that President Donald Trump’s wind-down of DACA was entirely legal and proper.  While that’s an outcome agreeable to me, my interest is in his reasoning for upholding Trump’s withdrawal of the Obama DHS Memorandum creating DACA.

As disheartening or inappropriate as the president’s occasionally disparaging remarks may be, they are not relevant to the larger issues governing the DACA rescission. The DACA Rescission Memo is clear as to its purpose and reasoning, and its decision is rationally supported by the administrative record.

And

This court does not like the outcome of this case, but is constrained by its constitutionally limited role to the result that it has reached. Hopefully, the Congress and the president will finally get their job done.
…
An overwhelming percentage of Americans support protections for ‘Dreamers,’ yet it is not the province of the judiciary to provide legislative or executive actions when those entrusted with those responsibilities fail to act.

Imagine that.  A judge ruling on the merits of the matter and not bringing in irrelevancies.  A California and a New York Federal trial judge could stand to read Titus’ ruling and learn from it.

Titus’ ruling can be read here.

 

h/t Power Line

A Hong Kong Trial

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Some of you may recall the umbrella protests in Hong Kong a few short years ago concerning the rapid erosion of freedoms there as the People’s Republic of China accelerated its walk away from its promise to Great Britain to respect Hong Kong liberties after the island city was surrendered to the PRC.

Joshua Wong, one of those protesters, sentenced to jail for participating and speaking his mind, is out of jail pending his appeal.  Hong Kong Commissioner Clement Leung had a Letter to the Editor of The Wall Street Journal earlier this week objecting to a WSJ piece decrying the whole sorry charade that is the current Hong Kong judiciary.

Surprise: I have my own response to Leung.

Joshua Wong was convicted because he was resisting the enforcement of a court injunction to reopen the roads in a blocked protest site.

No, Wong was convicted for continuing to exercise his free speech rights in the face of a court ruling that erroneously subverted those rights.

Mr Wong and others were also convicted and sentenced in another case, not for exercising their freedom of expression, but for their disorderly and intimidating behavior….

The use of the “disorderly and intimidating behavior” charge was simply a Communist Party of China-directed cynical euphemism for “speaking too freely.” The only ones who saw disorder or who were “intimidated” were those unused to being disobeyed in their diktats and others unused to the rollicking noise of democracy.

As an experienced Commissioner, Mr Leung should know better.