Thursday, August 10, 2017
Edward A. Zelinsky (Cardozo), The Political Process Argument for Overruling Quill, 82 Brook. L. Rev. 1177 (2017):
Should the U.S. Supreme Court overrule Quill Corporation v. North Dakota? A careful assessment of the federal political process suggests that the Supreme Court itself should overturn Quill in the Court’s role as guardian of the states against federal commandeering. A combination of factors underlay this conclusion: the tactical advantage that Quill bestows in the political process upon the internet and mail order industries, the importance of the states in the structure of federalism, the centrality of sales taxes to the financing of state government, the severe impediment which Quill and its physical presence test impose upon the collection of these taxes, and the unique disadvantages of the states in the federal legislative process.
In our system of federalism as it exists today, the states are structurally important but politically disadvantaged. Federal legislators receive no political benefits from helping the states. This contrasts with the political support — votes and campaign contributions — private groups bestow for legislative backing. The Court itself should, despite the force of stare decisis, overturn Quill rather than rely on Congress to abolish the physical presence test which severely hampers the states’ collection of their sales taxes in the face of the growth of internet commerce.
Oxford University Press Blog, Why The Supreme Court Should Overrule Quill