When faced with a lazy and incompetent Congress, do states have a right to take matters into their own hands to protect their long-term interests?

That question wasn't explicitly litigated in a recent Supreme Court case dealing with online retailers, but it provides an interesting subtext to the discussion.

The 5-4 ruling in the case - South Dakota v. Wayfair Inc. - overturned two long-standing precedents that prohibited states from requiring online or mail-order retailers to collect and remit sales tax unless they have a "physical nexus" in the state, such as a store or warehouse.

Despite the split vote, the nine justices unanimously agreed that the physical nexus standard was incorrect. What they disagreed about was who should fix the problem.

In a minority opinion joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, Chief Justice John Roberts wrote that the 1967 Bellas Hess case, which initially established the physical nexus requirement, "was wrongly decided."

However, while the decision may have been made in error, Roberts noted that it ultimately became the foundation on which the nation's e-commerce industry was built. For the court to change the rules now, on its own authority, is inappropriate.

The five-justice majority "argues in favor of overturning the (Bellas Hess) decision because the 'internet's prevalence and power have changed the dynamics of the national economy,' " Roberts wrote. "But that is the very reason I oppose discarding the physical presence rule. ... Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress. The court shouldn't act on this important question solely to expiate a mistake it made over 50 years ago."

Several lawmakers submitted briefs supporting Roberts' position.

For example, Sens. Ted Cruz, R-Texas; Steve Daines, R-Mont.; and Mike Lee, R-Utah, suggested that "Congress alone has the constitutional expertise and authority to address changes to the national economy of the last 25 years."

Similarly, House Judiciary Chairman Bob Gooodlatte, R-Va., together with 10 other representatives and four senators, argued that "Congress is the branch of government best able to measure and weigh the exceptionally difficult policy questions presented by South Dakota's plea for greater taxing authority."

But what if Congress doesn't actually devote much time to measuring and weighing difficult policy decisions?

What if lawmakers instead spend the greater part of their day meeting with donors, constituents and lobbyists? What if they waste half the week traveling back and forth to their districts? What if they operate in a system that's more concerned about scoring points and embarrassing the other side than with doing what's best for the country?

What if solving problems isn't Congress's primary focus?

I'm reminded of the comments lawmakers made in the fall of 2011, after they rejected a balanced budget constitutional amendment - get this - because they thought Congress should have the fiscal discipline to balance the budget on its own.

In the seven years since that vote, the United States has added another $6.2 trillion in debt - more than the nation accumulated in the first 226 years of its existence.

Yes, Congress should have the fiscal discipline to balance the budget on its own. And yes, in the 51 years since the Supreme Court's Bellas Hess decision and the 26 years since the related Quill decision, Congress should have been able to measure and weigh the matter and find an equitable solution. But it didn't and doesn't.

So at what point can states legitimately say enough is enough? At what point does protecting their own citizens and economic interests demand action?

Unfortunately, the Supreme Court didn't directly address that issue. Its decision in the Wayfair case was based on the "arbitrary" and "artificial" nature of the physical nexus requirement - on the manifest absurdity that an online retailer who has a single warehouse in a state can be required to collect taxes on all sales to that state, while retailers without a physical structure enjoy what amounts to "a judicially created tax shelter."

But as today's "unified Republican government" proves just as inept at resolving problems or tackling major policy issues as the last several sessions of Congress, states continue to bear the burden of federal inaction.

Since January of 2017, the current session of Congress has enacted 194 laws. Most were minor bills such as post office renamings; only a relative handful addressed significant issues.

This anemic output is in keeping with the previous three sessions of Congress, each of which enacted fewer laws than any prior session dating back to at least 1973. It is not an exaggeration to say that the Washington and Idaho legislatures pass more bills and tackle more pressing policy matters in a three-month session than Congress does every two years.

Granted, the number of bills passed isn't in itself a good measure of performance. But when incumbents trot out that lame excuse, ask them this: How many hurdles and roadblocks do their constituents face that can only be resolved by action or changes at the federal level?

The answer is: A lot more than Congress is getting to. And the laundry list of unaddressed problems continues to grow.

Ideally, voters would deal with this on their own, by booting out underperforming incumbents in favor of new blood. But for whatever reason, that rarely happens. So states like South Dakota are left to act, sailing into uncharted waters while members of Congress complain about being left behind.


Spence may be contacted at bspence@lmtribune.com or (208) 791-9168.

Recommended for you