Wayfair in Constitutional Perspective: Who Sets the Ground Rules of US Fiscal Federalism?

Abstract

The 2018 US Supreme Court decision in South Dakota v. Wayfair is arguably the court’s most consequential state tax decision in a generation, perhaps longer. The Wayfair decision overturned the Supreme Court’s 1992 decision in Quill (itself a continuation of the Supreme Court’s ruling in National Bellas Hess a quarter century earlier), which had prohibited states from imposing a use tax collection obligation on vendors without a physical presence in the taxing state. Although the decision marks a welcome milestone in the development of the retail sales tax as an effective destination-based consumption tax, the court’s decision also invigorates the constitutional principle of state autonomy in fiscal matters, leaving the imposition of any constraints on state taxing power to Congress. However, unlike in earlier eras when Congress responded to court decisions with new statutory limits, today’s Congress faces historic polarization and legislative gridlock, reducing the likelihood of federal reforms designed to promote uniformity and simplification.