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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. There are so

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Speaker 1: many reasons to shop online. Convenience, easy comparison, shopping, no

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Speaker 1: sales tax. But that last reason may no longer apply

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Speaker 1: if the Supreme Court decides to allow state and local

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Speaker 1: governments to collect billions of dollars in sales taxes from

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Speaker 1: online retailers. The Jostices have decided to revisit a twenty

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Speaker 1: six year old ruling that has made much of the

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Speaker 1: Internet a tax free zone for shoppers. My guests are

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Speaker 1: Richard Pump, professor at the University of Connecticut Law School,

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Speaker 1: and Edward Zelinsky, professor at Cardozo School of Law. Richard

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Speaker 1: tell us about the South Dakota law, which was passed

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Speaker 1: with the purpose of setting up this test case. That's right, June,

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Speaker 1: As you mentioned, twenty six years ago, the Supreme Court

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Speaker 1: issued a case that said you cannot make a remote

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Speaker 1: vendor collect the sales action unless they have a physical eight.

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Speaker 1: The South Carolina South Dakota legislation was a frontal attack

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Speaker 1: on that rule, and just the correct one possible misinterpretation. Um,

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Speaker 1: consumers owe the sales attacks. We call it the use attack.

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Speaker 1: They already owe thatttack. So the issue is whether the

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Speaker 1: remote vendors should have to collect it and make it

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Speaker 1: easy on the consumers. No, not normally. Uh, probably, Richard.

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Speaker 1: We're gonna try to re establish our connection with you there,

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Speaker 1: um Edward, So tell us about how South Dakota went

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Speaker 1: about to pass a law just for this reason. So

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Speaker 1: they a test before the Supreme Court. Well, what the

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Speaker 1: South Dakota legislature did was openly accept Justice Kennedy's invitation

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Speaker 1: to pass the law. And so they declared that sales

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Speaker 1: tax must be collected. And my colleague, Professor pomp A

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Speaker 1: good friend is correct. Everyone owes the tax. The question

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Speaker 1: is how is it collected? Uh? And so what South

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Speaker 1: Dakota declared was that any firm that made a certain

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Speaker 1: number of sales two hundred separate transactions or a hundred

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Speaker 1: thousand dollars worth of merchandise in the current or prior

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Speaker 1: year had to start collecting the sales tax. South Dakota

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Speaker 1: knew that that was going to be challenged. It was

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Speaker 1: challenged by a number of firms. Wayfair Furniture is the

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Speaker 1: lead plaintiff. The case went up to the South Dakota

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Speaker 1: Supreme Court. The South Dakota Supreme Court said, we have

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Speaker 1: to follow the true decision of the United States Supreme Court.

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Speaker 1: Shout Dakota asked the United States Supreme Court to review,

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Speaker 1: and much to my surprise and the surprise of many others,

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Speaker 1: the Court last week agreed to hear where you wake

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Speaker 1: their case from South Dakota. Why surprise? Three of the justices,

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Speaker 1: Anthony Kennedy, Clarence Thomas, Neil Gorsuch have expressed doubts about

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Speaker 1: that Supreme Court case, and thirty five other states of

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Speaker 1: supporting South Dakota. Why are you surprised that the Supreme

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Speaker 1: Court decided to take this up? I'm surprised for two reasons.

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Speaker 1: First of all, it takes poor justices to agree to

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Speaker 1: a grant of Sir cir i, So that means that

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Speaker 1: at least one other justice chose to come on board.

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Speaker 1: And it was interesting they could have chosen to support

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Speaker 1: Justice Kennedy when he made his comments in the earlier

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Speaker 1: case they didn't show. There's at least one justice who,

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Speaker 1: having thought about this additionally, has now at least rest

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Speaker 1: an openness to it. The second and very important point

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Speaker 1: is that the Court has reiterated that these types of

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Speaker 1: issues which can be adjusted by Congress ought to be

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Speaker 1: resolved politically. And I think most of us agree that

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Speaker 1: it would be better for Congress to pass some legislation.

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Speaker 1: So if the Court had chosen not to hear the

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Speaker 1: Wayfair case, it would simply have been saying, let's let

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Speaker 1: this continue in the political form of Congress. And there

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Speaker 1: is certainly the possibility, although I think it's the less

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Speaker 1: likely possibility, there is the possibility that that's ultimately what

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Speaker 1: five justices are going to say, that we stand by

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Speaker 1: the decision and if this is going to be fought out,

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Speaker 1: and let it be fought out in Congress. And Edward,

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Speaker 1: you think it's the less likely possibility because normally, taking

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Speaker 1: a case like this is a kind of signal that

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Speaker 1: the justices may be ready to reverse themselves. While I

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Speaker 1: am no longer a betting man what it comes to

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Speaker 1: predicting this Supreme Court when they've surprised me enough times,

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Speaker 1: but I would have to say that if I were

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Speaker 1: to place a bet, the bet is that there are

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Speaker 1: at least four justices who are prepared to look at

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Speaker 1: this case again, and that means they've only got to

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Speaker 1: bring over one more colleague to form a majority. Now,

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Speaker 1: online retailers way there, overstock, dot Com and New Egg

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Speaker 1: are opposing this. What is their argument? Are they relying

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Speaker 1: on the old law or they have something new going on.

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Speaker 1: I think they're basically saying that this ought to be

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Speaker 1: dealt with politically, that there can be negotiations in Congress.

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Speaker 1: The problem, of course, with that argument is that the

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Speaker 1: industry has spent the last twenty five years blocking successfully

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Speaker 1: legislative efforts. So my own viewings of that argument is

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Speaker 1: not very persuasive. If in fact, the internet sales industry

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Speaker 1: had come forward and said at an earlier time, Leah,

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Speaker 1: let's cooperate and let's come up with reasonable legislation, that

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Speaker 1: I would take their arguments more credibly. But at this

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Speaker 1: point I don't. Richard is back with us. Richard, which

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Speaker 1: side has the better argument in this case? Well, I

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Speaker 1: think the states have the better argument. Quill was an

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Speaker 1: intellectually bankrupt and dishonest case, even when it was first

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Speaker 1: issued in and it has been so overtaken by uh

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Speaker 1: technological developments that many of the arguments that were made

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Speaker 1: holds no weight whatsoever today. So so Richard, smaller online

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Speaker 1: retailers are saying that their disadvantage because they have to

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Speaker 1: deal with not with this, um dozens of state sales

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Speaker 1: tax systems, and they don't have the kind of organization

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Speaker 1: that let's say an Amazon or Awayfare does. What is

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Speaker 1: this due to the small line small online retailers. Well,

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Speaker 1: there there may be some merit to that argument. UH,

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Speaker 1: And that's the beauty of state legislation that provides a

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Speaker 1: pretty high exemption. So if you have sales that are

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Speaker 1: less than a certain amount in South Dakota is one

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Speaker 1: hundred thousand, But you might be more generous and say,

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Speaker 1: if your sales are less than five hundred thousand, you

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Speaker 1: do not have to comply with the requirement to collect

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Speaker 1: sales tax. So there's ways of dealing with that. But

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Speaker 1: even for small vendors, there's technology that's now available, software

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Speaker 1: that makes it a lot easier to collect the sales

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Speaker 1: tax and worry about thirty seconds. Here is it surprising?

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Speaker 1: It may be surprising that many people that Amazon is

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Speaker 1: not involved in this case directly. Well, well, I think

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Speaker 1: it's not surprising because Amazon, in a funny way, has

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Speaker 1: switched sides, at least in part in the last several years.

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Speaker 1: With all of their distribution centers, they now have physical presence,

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Speaker 1: and so they are starting to collect sales tax. I

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Speaker 1: live in Connecticut, as does Professor Pop, and we pay

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Speaker 1: sales tax on our Amazon purchases because they have a

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Speaker 1: physical presence. So while their business model at one time

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Speaker 1: was very much a tax free model, it isn't today, Richards.

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Speaker 1: How many states rely on sales tax in the main

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Speaker 1: and don't have income taxes? Um, well, you have about

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Speaker 1: maybe six or seven states without an income tax. Not

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Speaker 1: that all of them have sales taxes. No Hampshire, for example,

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Speaker 1: as no broad based income tax or sales tax. But

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Speaker 1: if you don't have an income tax, like a a

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Speaker 1: Texas or a Florida, you're gonna work your sales tax

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Speaker 1: very hard. And so this is a big issue for

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Speaker 1: those kinds of states. And Edward, how much money are

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Speaker 1: we talking here? How how much would come to the

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Speaker 1: states or the local localities if the Supreme Court throws

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Speaker 1: out Ill, Well, there are as many views of that,

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Speaker 1: as there are economists who studied it. But I think

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Speaker 1: it's clear that there are billions of dollars and it includes,

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Speaker 1: for example, of state like Connecticut, which does have an

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Speaker 1: income tax, but it's also very dependent on its sales

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Speaker 1: tax as well. So let's say that the Supreme Court

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Speaker 1: decides to do away with QUILL Richard, what will be

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Speaker 1: the immediate Will we see an immediate response online? Will

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Speaker 1: will people right away be charged sales tax? Well, that

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Speaker 1: is certainly possible. We couldn't see and this is the

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Speaker 1: the UH, this is the unknown. We could see Congress

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Speaker 1: reacting to the Supreme Court by adopting federal legislation UH.

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Speaker 1: That would deal with some of the issues that the

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Speaker 1: Court is not very well equipped to deal with. So

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Speaker 1: it's possible, although given you know, the the current state

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Speaker 1: of Congress, maybe not likely. But Congress has just delivered

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Speaker 1: UH bad blow to the states by capping the deduction

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Speaker 1: for state and local taxes, particularly hard on New York,

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Speaker 1: in Connecticut, New Jersey, Illinois, California. UH. An argument could

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Speaker 1: be made the Congress now owes the state something UH,

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Speaker 1: and if QUILL were to be overturned, Congress might well

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Speaker 1: feel that it should now deal with all the details

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Speaker 1: that the Court is poorly equipped to deal with and

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Speaker 1: and pass some kind of statute that takes into account

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Speaker 1: low sales vendors. Can you discussed before and the issue

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Speaker 1: of whether the case is going to be retroactive or not, well,

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Speaker 1: we will certainly see whether that's going to happen or not.

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Speaker 1: I'm not edwe I'm not going to ask you whether

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Speaker 1: you would bet on that or not. Thank you both

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Speaker 1: for being here. That's Richard Pump, professor at the University

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Speaker 1: of Connecticut Law School, and Edward Zelensky, professor at Cardoza's

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Speaker 1: School of Law. Well, the Supreme Court is in session

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Speaker 1: hearing arguments and making decisions. Although nothing came out today,

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Speaker 1: but Greg the the Digital tex joining me is Bloomberg's

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Speaker 1: Supreme Court reporter of Greg Store. Greg the tax case

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Speaker 1: that the Court decided to hear on Friday. How important

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Speaker 1: is that? Oh, June. That's uh, that's that's a huge case.

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Speaker 1: And the uh Supreme Court has the twenty six year

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Speaker 1: old president that says that states cannot cannot impose taxes,

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Speaker 1: cannot require online retailers to collect taxes unless they have

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Speaker 1: a physical presence in the state. Uh, states have been

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Speaker 1: and brick and mortar retailers have been urging the court

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Speaker 1: to overturn that precedent so that uh, those retailers can

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Speaker 1: be required to collect taxes. Uh. Now the Supreme Court

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Speaker 1: is going to take that up and it could mean

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Speaker 1: um billions of dollars. There are differing estimates, but a

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Speaker 1: huge amount of potential money going into the state's coffers.

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Speaker 1: Let's talk about some of the other cases that the

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Speaker 1: Court has decided to take or is considering. Uh. Let's

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Speaker 1: say about Texas getting a Supreme Court review on avoided

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Speaker 1: voting districts. Sounds very, very confusing. Yeah, this is the

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Speaker 1: case that is Uh, We've gone up and down the

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Speaker 1: court system. Essentially, what the Court is is considering is

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Speaker 1: a lower court of actually a district court of three

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Speaker 1: judge panel, which is how they do it in election cases,

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Speaker 1: found that the state in that that the Republican mapter

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Speaker 1: ares intentionally discriminated on the basis of race in uh,

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Speaker 1: drawing some some state legislative and congressional districts and the

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Speaker 1: and the panel ordered those districts redrawn. The Supreme Court

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Speaker 1: is going to hear arguments now Texas basically argues that

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Speaker 1: the districts in these maps were ones that in an

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Speaker 1: earlier round of this litigation, UH, that district court actually

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Speaker 1: approved as part of an interim map. So it's a

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Speaker 1: little bit of a quirky argument or or quirky issue

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Speaker 1: that may not have broad appicability. But of course this

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Speaker 1: is coming in a term where the Supreme Court has

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Speaker 1: a couple um big cases involving partisan Jerryman Dring. And

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Speaker 1: so now let's just adds a new wrinkle into the mix,

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Speaker 1: and we're gonna, one way or another have a huge

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Speaker 1: UH Supreme Court term in terms of what the rules

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Speaker 1: are for UH lawmakers when they're drawing the maps to

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Speaker 1: determine UH who votes in what district going forward. So, Greg,

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Speaker 1: there are all these cases involving Jerryman Dring. Now this,

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Speaker 1: are there any cases involving voter I d s? Because

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Speaker 1: that has that has been coming up that a lot

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Speaker 1: of the states still have very strict voter ID laws. Yeah,

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Speaker 1: so voter ID laws is the one thing we don't

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Speaker 1: have this term. I think we've talked previously about the

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Speaker 1: case that the Court heard last week involving registration and

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Speaker 1: what states can do to purge people from the voting

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Speaker 1: list if they haven't voted in a while in the state,

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Speaker 1: thanks that maybe they've moved. So you have a lot

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Speaker 1: of other issues that will determine very important voting rights

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Speaker 1: questions voter I d uh. There are certainly disputes out there,

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Speaker 1: and you can see the Supreme Court taking up a

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Speaker 1: case in the next term. Surely we'll get another voter

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Speaker 1: I d case soon, but right now there's not one

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Speaker 1: before the Court. In that Ohio case that you mentioned

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Speaker 1: is very important because it determines when the states can

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Speaker 1: can avoid and purge their voter roles. And according to

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Speaker 1: your story, it was just a little bit of a

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Speaker 1: surprise that Supreme Court Justice Stephen Bryer seemed to be

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Speaker 1: on the side of the state of Ohio. Yeah, you

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Speaker 1: can you know people are have read Justice Brier's questions

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Speaker 1: both ways, but at a minimum, his vote seemed to

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Speaker 1: be in play as a possible vote that Ohio could

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Speaker 1: get to uphold its system of purging people. You also

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Speaker 1: had Justice Kennedy, who is so often the swing vote

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Speaker 1: on the Court, saying that that um suggesting that he

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Speaker 1: was going to side with with Ohio. One of the

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Speaker 1: wild cards in the cases that we didn't hear any

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Speaker 1: questions at all from both Justice Thomas and Justice Gorsa too. Um,

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Speaker 1: one might expect to the on Ohio side, given that

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Speaker 1: this is sort of an ideologically divisive issue, But we

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Speaker 1: didn't hear from either one of the two of them.

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Speaker 1: So let me ask you this broader question. Justice Thomas

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Speaker 1: doesn't usually participate, so that's not a surprise. But was

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Speaker 1: it a surprise that Justice Gorset didn't participate in because

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Speaker 1: I've read a lot about how he sometimes is very

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Speaker 1: aggressive in his questioning and getting into the questioning. Yeah,

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Speaker 1: it certainly was a surprise to me. Um, you know,

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Speaker 1: he's still knew enough on this court that uh, you know,

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Speaker 1: it's hard to say that that, uh you know, he

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Speaker 1: sort of locked in any particular style of questioning. There

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Speaker 1: are some cases where he is more active than others.

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Speaker 1: I believe I can think of one other recall one

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Speaker 1: other time where I didn't see him ask any questions. Um,

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Speaker 1: it's hard to know what that means in this case.

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Speaker 1: This is not a constitutional case. It's a statutory case,

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Speaker 1: so one would expect him to be heavily focused on

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Speaker 1: the wording of the statute. Um, it's at least possible, um,

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Speaker 1: that he reads the statute differently than some of us

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Speaker 1: might expect him to. Uh. And it's really hard to

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Speaker 1: say what is his lack of questioning really means for

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Speaker 1: for how he's going to vote, But we expect you

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Speaker 1: to tell us anyway. Right, all right, thank you so much.

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Speaker 1: As always, that's Greg's story. He is Bloomberg News Supreme

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Speaker 1: Court reporter, and he is. They're reporting that today there

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Speaker 1: were no new orders to Judges did not issue any

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Speaker 1: new orders, but certainly there were enough from the test.

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Speaker 1: Thanks for listening to the Bloomberg Law pot Ask. You

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Speaker 1: can subscribe and listen to the show on Apple podcast,

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Speaker 1: SoundCloud and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg