The Solicitor General has filed her brief on behalf of the United States government in the New Hampshire v. Massachusetts case involving Massachusetts continuing to tax New Hampshire residents who used to - but now do not - commute into Massachusetts due to the pandemic. (Read more about the case here.)
The Solicitor General recommends the Supreme Court NOT take the case, giving several reasons:
New Hampshire’s cited harms are “second-order effects,” none of which are “sufficiently direct or serious” to warrant taking the case
New Hampshire residents can pursue their claims in Massachusetts courts, and federal courts should let that happen first
Constitutional claims are more appropriately raised by individuals rather than states
If the court wants to address broader issues about remote worker taxation, “the idiosyncratic and temporary nature of the Massachusetts tax rule makes this case a poor vehicle for resolving those broader questions, especially in the posture of a facial challenge.”
I'm not surprised. Part of the Solicitor General's job is to advance federal interests, and the Biden Administration doesn't see interstate tax policy as an urgent priority. Hence their seeing this as one "idiosyncratic and temporary" dispute rather than a big trend that needs resolution. As we wrote in our brief to the Supreme Court urging them to take the case:
Massachusetts has never before claimed the power to tax non-residents for their intrastate activity in another state, and whether “temporary” or permanent, this is a sharp change from the relationships between sovereign states that existed before. A dramatic policy change such as this, with the potential to affect the many Americans who formerly commuted between states but now telecommute from one location, is “a matter of grave public concern in which the state, as the representative of the public, has an interest apart from that of the individuals affected,” thus warranting this Court’s exercise of original jurisdiction.
Interestingly, two justices (Thomas & Alito) don't think the Supreme Court can refuse to hear cases between two states, most recently in Texas v. California last month. So that’s two justices who will likely vote to hear the case. We shall see if enough additional justices want to resolve this case or instead consign thousands of individual taxpayers to deal with an unfriendly Massachusetts forum.