US Supreme Court cases reviewed

In South Dakota v. Wayfair, June 21, 2018 (a 5 to 4 decision), the Court dramatically changes the rules of commercial tax law. The Court previously held that an interpretation of the Commerce clause (Art I, Sec.8, cl.3) of the U.S. Constitution would allow a State to force an out-of-state seller to collect a tax and send it to the state for a sale from a catalogue only if the seller had a physical presence in that state and a mere shipment into the state was not a physical presence. The Court changed its mind admitting it was wrong 50 years ago. The Court should never have decided the matter, instead telling the parties to the action they should address the matter to Congress.

The clause in Sec. 8 states: “The Congress shall have the Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes; ….” As you can see it is straightforward and simple. The body made of of the elected representatives of the people, Congress, is granted the power by the people, to regulate commerce. Instead, in prior cases, the Court declared there was a void to fill because Congress had not acted so it decided to create the law governing commerce between states.

The Court had previously said, “Although the Commerce Clause is written as an affirmative grant of authority to Congress, this Court has long held that in some instances it imposes limitations on the States absent congressional action.” In other words if Congress chooses not to act, the Court will take it upon itself to wield the power to decide for the people, regardless of what their representatives desire. How could the Court act more tyrannically?

The Court also had said, “… this Court has observed that “in general Congress has left it to the courts to formulate the rules” to preserve “the free flow of interstate commerce.” This, of course, was clearly the Court making law when they have no business doing so. Could the Court considered that perhaps Congress had sufficient reasons not to act and the Court had no authority to usurp that authority? Not when the Court wants to give itself the power to take over that function of government. By whom are you ruled?

In the South Dakota case the Court now says, “… the physical presence rule, both as first formulated and as applied today, is an incorrect interpretation of the Commerce Clause.” It therefore overturns prior interpretation of the Commerce clause and allows states to impose tax on out-of-state sales even though the business has no physical contact with the state. What a difference this will make to citizens and without a vote by any elected representatives. A truly dictatorial action for which there is no authority other than the Court’s misplaced thinking that it is appropriate!