With the holiday season in full swing, most people tax professors have spent at least some time shopping on the internet and contemplating the impact of South Dakota v. Wayfair. By now, we’re all well versed in the basics. Wayfair is a milestone tax law case that sets forth a new interpretation of the Commerce Clause that permits states to enforce sales and use tax collection obligations against out-of-state online merchants. Right? Well, sort of.
According to Professor Allan Erbsen, labels like “tax law case” aren’t particularly helpful, and the doctrinal impact of Wayfair may extend well beyond the territorial borders of tax law—or even Commerce Clause jurisprudence. Erbsen argues that Wayfair’s Commerce Clause holding justifies reconsideration of the Court’s 2011 decision in J. McIntyre Machinery v. Nicastro, a Due Process case that had nothing to do with tax.
The Nicastro case arose when a New Jersey scrap-metal recycling worker lost four fingers in a machine and sued the out-of-state manufacturer in New Jersey. The manufacturer defended on the basis that it had never targeted New Jersey for sales. It had merely targeted the national market in the United States. Not only that, but it had never even sold its product directly to anyone in New Jersey. It had always used a distributor intermediary.
The Court ruled in favor of the manufacturer, deciding that its contacts with New Jersey were not purposeful and, therefore, did not establish personal jurisdiction under the Due Process clause. Thus, under Nicastro states’ ability to assert personal jurisdiction over out-of-state sellers is relatively narrow.
In contrast, Wayfair opened the door for states to assert broad tax enforcement jurisdiction over out-of-state sellers. The case arose when the online merchants Wayfair, Overstock and Newegg sued to block South Dakota’s enforcement of its sales tax collection obligations. None of the merchants had any physical presence in South Dakota, which was required under the controlling Commerce Clause precedent. Rather than rule for the merchants, though, the Court opted to overturn the precedent.
Erbsen argues that Nicastro should be reconsidered in light of Wayfair. Never mind that Nicastro was exclusively a Due Process clause case and Wayfair was exclusively a Commerce Clause case. The two cases aren’t nearly as distinct as they appear, according to Erbsen. The “tax jurisdiction” and “personal jurisdiction” distinction isn’t all that meaningful, either. Here’s why.
For starters, Commerce Clause and Due Process doctrines are closely related, generate parallel inquiries, and share a similar intellectual history. And tax jurisdiction and personal jurisdiction doctrines have also developed along parallel tracks. So in many ways, these lines of doctrines are based in similar reasoning and have developed in sync. But even more importantly, Erbsen argues, there is a way that these doctrines overlap entirely within Constitutional Law frameworks.
Both Wayfair and Nicastro are part of “an overlapping web of constitutional provisions governing horizontal federalism.” Horizontal federalism is “the body of law that considers how the existence of multiple states limits the power of each.” These provisions, Erbsen argues, are best understood together—not in isolation. Unfortunately, says Erbsen, the Court and commentators tend to view horizontal federalism problems in isolation.
This leads to inconsistent reasoning, like that used in Wayfair and Nicastro. Erbsen identifies five inconsistencies between the cases. He argues in detail that Wayfair “extolls state interests, tries to craft rules that recognize how markets work and avoid distorting behavior, promotes fairness, and does not allow outlier scenarios to drive the analysis.” In contrast, he argues that Nicastro “impugns state interests, ignores how markets actually work while incentivizing inefficient behavior, rejects fairness, and emphasizes outlier hypotheticals.”
Erbsen sets forth a compelling argument that, in each case, the Wayfair reasoning should prevail, and Nicastro should be reconsidered. The two cases are, after all, conceptually similar: both involved the conduct of an out-of-state entity that motivated the state to respond by compelling the entity to take a particular action.
But he concludes with his larger point, stating that “the Court should be wary of its tendency to construct doctrinal silos that obscure similarities between horizontal federalism problems.” The same warning could be given to the legal academy, which he says “reinforces these distinctions by addressing personal jurisdiction and tax law in separate courses and separate fields of scholarship.”
This article contains insights relevant to any tax scholar interested in state and local taxation, tax enforcement, Constitutional Law, or the language of law.