Brief of Brill, Knoll, Mason, and Viard as Amici Curiae in Support of Petitioner in South Dakota v. Wayfair, Inc.
The passage of time and changing circumstances have rendered the physical-presence requirement articulated in National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 758 (1967), and Quill Corporation v. North Dakota, 504 U.S. 298, 324-15 (1992), a harmful anachronism. Standard tools of economic analysis that the Court considered in Comptroller of the Treasury v. Wynne reveal that South Dakota’s sales and use tax regime, as amended by S.B. 106, promotes neutral treatment of in-state and interstate commerce. By contrast, the bright-line physical-presence requirement set forth in Bellas Hess and Quill forces states to extend what is in practice a discriminatory subsidy in favor of a specific class of out-of-state sellers, namely, those sellers who lack a physical presence within the state. On the facts of the challenged statute, there is no valid economic reason to mandate such a discriminatory subsidy.