The National Taxpayers Union Foundation (NTUF) and four other free market organizations today filed an amicus brief in the landmark internet sales tax case of South Dakota v. Wayfair, which will be heard by the Supreme Court on April 17th. The brief argues that the Court should preserve limits on state power to regulate beyond their borders and reject South Dakota’s aggressive attempt to seize for themselves the power to tax businesses located all across the country. NTUF is joined in the brief by FreedomWorks, Institute for Policy Innovation, Americans for Prosperity, and Freedom Partners Chamber of Commerce.
The groups are represented by Paul Clement, Erin Murphy, and Matthew Rowen of the law firm Kirkland & Ellis. Clement is a former Solicitor General of the United States and one of the most prominent private practice Supreme Court litigators in the country, having argued such landmark cases as NFIB v. Sebelius and McDonald v. Chicago. He also has written extensively about internet sales tax legislation like the “Marketplace Fairness Act” and its failure to meet constitutional standards of due process.
Andrew Moylan, Executive Vice President of NTUF, said, “We’re proud to join with our allied organizations and our counsel team, led by Paul Clement, to make the case that South Dakota’s aggression should not stand. In its reckless pursuit of additional revenue and power, the state threatens to disrupt interstate commerce and undermine basic protections against taxation without representation.”
NTUF has been a leading voice in defending taxpayers from the aggressive efforts of states to use the internet as a vehicle for expanded tax power. That work has included filing an amicus brief at the petition stage of this case. The brief filed today expands on that work, underscoring that the foundational questions of this case date back to the Revolutionary War era, where the taxation without representation inherent in the Stamp Act and Tea Act were “the very definition of tyranny, and a violation of the fundamental norm that legitimate authority derives from the ‘consent of the governed.’” NTUF’s sister organization National Taxpayers Union has also testified before Congress on related legislation regarding the limits of state tax powers.
Moylan concluded by saying, “If the Court were to uphold South Dakota’s law and dispense with decades of precedent, it would throw open the floodgates to states asserting the power to tax any business, anywhere across the country regardless of their physical location, simply because they dare to use the internet. The Founders fought a war and drafted a constitution to avoid just such a fate. Our hope is that the Supreme Court remembers that important lesson, the importance of which is greater than ever in an age where global reach is at one’s fingertips.”