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Thursday, August 10, 2017

Zelinsky: The Political Process Argument For Overruling Quill

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

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Only Congress should overrule Quill. The existing 50 state sales tax, excise tax, and transaction privilege tax regime is too expensive to administer for any business with less than $500,000 in sales. Only Congress can impose rules that make it possible for small businesses to comply with state laws. Meanwhile, state work arounds to Quill (Marketplace tax collection) at least are easy to administer. Mainstreet Fairness does offer tax compliance simplifications that will benefit small businesses. Overturning Quill does not provide the help that small businesses need to comply with a strict liability tax.

Posted by: JKelly | Aug 10, 2017 6:31:35 AM

The SCOTUS reticence to grant cert in any number, the past decade, of cases indicates to me that the Court is going to make Congress "stew in its own juice."

Posted by: Tom N | Aug 10, 2017 6:41:43 AM

Federal legislators receive no political benefits from helping the states

Surely this loss of states' influence was anticipated when the 17th Amendment was approved, bypassing state legislatures in electing US Senators. Today's extent of this effect would have astonished those state legislators.

Posted by: AMTbuff | Aug 10, 2017 12:08:53 PM

Maybe if insufficient responsiveness of the Congress is the problem, the solution is not over-ruling Quill but repealing the 17th Amendment.

Posted by: Joseph W. Mooney | Aug 11, 2017 2:21:24 PM