South Dakota v. Wayfair: Way Unfair?

Abstract

Has a $5.00 shipping fee ever made you second guess an online purchase? What about a sales tax? Apparently, our Supreme Court Justices pay no mind to the latter. South Dakota v. Wayfair annihilates the concept of tax-free online shopping and allows the states to compel online companies meeting certain arbitrary thresholds to collect and disburse sales tax from online consumers. Consequently, retailers must now devise complex collection schemes to accommodate even more complex collection requirements.

This Article examines the historical context resulting in the formulation, and recent abrogation of, the physical-presence rule formerly shielding companies from the onerous, varied sales-tax regimes of the many states and the inconsistencies created by the rule’s absence. The author contends that Wayfair’s holding is an affront to the Commerce Clause and the doctrine of stare decisis. Moreover, the entire matter should have been deferred to Congress for review, in lieu of capricious judicial legislation. The author asserts that this decision is weak, at best, is contradictory to its alleged purpose, and is offensive to the concept of judicial precedent. The author concludes that our legislators are better equipped to research and solve this issue.

Keywords: South Dakota v. Wayfair, Commerce Clause, Dormant Commerce Clause, Sales Tax, Stare Decisis, Tax Law, Retail, Wayfair, Judicial Legislation

JEL Classification: H20,H21,H22,H23,H24,H25,H26,H27,H29,H30,H70,H71,H72,H73,H74,H75,H77,H79,H80,M20,M21,M29,M40,M41