Brief Amicus Curiae: South Dakota v. Wayfair, Inc., Et Al.

by Jonathon Hauenschild, Joel Griffith & Bartlett Cleland

Introduction

Pursuant to Supreme Court Rule 37, the American Legislative Exchange Council (ALEC) respectfully submits this brief amicus curiae in support of Respondents Wayfair, Inc., et al.

The American Legislative Exchange Council (ALEC) is a nonprofit, tax-exempt corporation and is the nation’s largest non-partisan individual membership association of state legislators. ALEC has approximately 2,000 members in state legislatures across the United States. The American Legislative Exchange Council works to advance limited government, free markets and federalism at the state level through a nonpartisan public-private partnership of America’s state legislators, members of the private sector and the general public.

Not all states, much less all state legislators, believe the physical presence standard discussed in Quill Corp. v. North Dakota, 504 U.S. 298 (1992) (“Quill”) and National Bellas Hess, Inc. v. Department of Revenue of the State of Illinois, 386 U.S. 753 (1967) (“Bellas Hess”) should be abrogated. The physical presence standard has allowed the multi-trillion dollar online marketplace system to develop and thrive, providing regulatory certainty for all businesses. The standard is firmly rooted in the purpose and history of the Commerce Clause.

ALEC submits this brief both to help educate the Court on certain, salient topics and to emphasize that many state legislators wish this Court to sustain the current physical presence standard for the imposition of sales tax collection requirements set forth in the Quill and National Bellas Hess cases. This brief will look at the reasons why the founders included the Commerce Clause in the Constitution and the Clause’s early jurisprudence, the development of the Physical presence standard leading up to Quill and National Bellas Hess, and examine the current online marketplace ecosystem and the consequences if the physical presence standard were abrogated.

 

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