The Supreme Court last week issued a really ridiculous and awful ruling. In blatant violation of the Constitution’s Commerce Clause and its protections of federalism – and of the “Taxation without representation” foundational rally cry of the American Revolution that preceded it.
First – the Constitution violation. Behold Article I, Section 8, Clause 3:
“[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
This has come to be known as the (Interstate) Commerce Clause. The Commerce Clause was a very good idea:
“For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible.”
The Commerce Clause was crafted mainly for two reasons: To prevent individual states from printing their own currency – and thereby mucking up and confusing the federal note.
And to prevent individual states from imposing government impediments to commerce between the states (interstate commerce). We didn’t, for instance, want Tennessee tariffing – or imposing limits on – goods from Kentucky.
But as the above excerpt notes – the Feds only properly adhered to the Commerce Clause…for so long. They then began to warp the it beyond all reason – to time and again justify federal government usurpation of powers that the Constitution expressly left to the states (and the people).
The Commerce Clause is by now one of the most abused-to-expand-federal-government portions of the document:
“Congress ‘ushered in a new era of federal regulation under the commerce power,’ beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.”
The Feds have only accelerated their power grabs in the one-hundred-and-thirty-years since.
What was intended by the Founders as yet another government-limiting Constitutional addition – has been warped into an open-ended excuse to grow government wherever and whenever the bureaucrats wish.
Now the Supreme Court has gotten really creative with its grow-government agenda. The Court has ignored the clear intent of the Commerce Clause – prohibiting states from imposing government impediments upon interstate commerce.
And by so doing – allowed for the endless growth of more than 2,100 state and local governments throughout the nation. And in the process – crushed the concept of federalism.
Behold taxation without representation – on stilts. Behold the end of federalism. Behold – the Internet sales tax.
Associate Justice Anthony Kennedy yet again reminded us – he is one of President Ronald Reagan’s greatest and longest-lasting errors:
“‘In effect, Quill has come to serve as a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods and services to a state’s consumers – something that has become easier and more prevalent as technology has advanced,’ Kennedy wrote. ‘Worse still, the rule produces an incentive to avoid physical presence in multiple states.”
Yes – you clown in a gown. That is the entirety of the point of federalism. One of your Court predecessors understood it:
“‘Laboratories of democracy’ is a phrase popularized by U.S. Supreme Court Justice Louis Brandeis in New State Ice Co. v. Liebmann to describe how a ‘state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’ Brandeis was an Associate Justice of the Supreme Court of the United States from 1916 to 1939.”
Get that? If one state wanted to do something stupid, the rest of the nation wouldn’t suffer. If one state insisted on continuing to do stupid things – its citizens were free to move to the rest of the inoculated nation.
What Kennedy and his fellow clowns in gowns just did – was slam shut Americans’ escape hatches from huge government states. They didn’t declare federalism dead – they murdered it.
You can be a businessman – who wisely, reasonably established their business in a less government state like…say, Florida.
You chose Florida – because it has all the California weather and beaches – without California’s obnoxious over-government.
Because rather than establishing your business in California – and then joining the mass exodus out of California – you wisely figured you’d skip the intervening steps.
With the miracle that is the Internet – you are now able to sell your Florida-made widgets all around the nation (and the world). Citizens anywhere in America – are just a couple of mouse clicks away from purchasing your Sunshine State goodies.
And because you wisely located outside the Golden State – you were beyond the sticky clutches of the very many tentacles of the state’s very greedy government.
Now to get beyond the reach of huge government states like California, Americans will have to leave…America.
This Court ruling turns the Commerce Clause completely upside down and inside out.
And completely eviscerates the Founders’ favoring of federalism.
By subjecting the American people to the now-boundless reach of 2,100+ different state and local governments.
Because – oh, yes – counties and municipalities can now sales tax you too.
All imposed upon people who can do nothing to change the policies of the governments doing the taxing – because they don’t live there, and can not vote there.
Taxation without representation – on stilts.
Oh: And, of course, this was judicial clowns in gowns – pretending yet again to be legislators (yet another ongoing DC anti-Constitutional problem).
As Chief Justice John Roberts rightly noted in dissent:
“E-commerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical-presence rule,’ Roberts wrote.
“‘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 should not act on this important question of current economic policy….’”
Congress must now pass legislation – to clean up this omni-directional clowns-in-gowns-made-mess.
To restore a bit of federalism and the Commerce Clause.
And reassert the notion that if we must be taxed – we should at least have some representation in the matter.
This first appeared in Red State.