The Volokh Conspiracy

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More Interesting Supreme Court Line-Ups Today

The Court broke in untraditional ways in making decisions about taxing internet sales and the Appointments Clause


The Supreme Court handed down decisions in four argued cases today, including long-awaited decisions in cases concerning whether states may tax out-of-state retailers and the constitutionality of Administrative Law Judges at the Securities & Exchange Commission.

In South Dakota v. Wayfair, the Court concluded 5-4 that the Dormant Commerce Clause does not bar states from taxing out-of-state retailers that sell products to those within the state. In doing so, the Court overturned two long-standing Dormant Commerce Clause precedents: Quill Corp. v. North Dakota and National Bellas Hess Inc v. Department of Revenue. Although the Court split 5-4, it was not along traditional lines. Justice Kennedy wrote for the majority, joined by Justices Thomas, Ginsburg, Alito and Gorsuch. Chief Justice Roberts wrote the dissent, joined by Justices Breyer, Sotomayor, and Kagan.

The other big decision released today, Lucia v. SEC, also produced an unusual line-up. At issue here is whether the SEC's Administrative Law Judges are "Officers" under the Constitution's Appointments Clause. (This matters because at the time of Lucia's case before the SEC, the ALJs had not been appointed in a manner consistent with that clause.) Six justices, led by crossover sensation Justice Elena Kagan, ruled that SEC ALJs are "Officers." Joining Justice Kagan were the Chief Justice, and Justices Kennedy, Thomas, Alito and Gorsuch. Justice Ginsburg and Sotomayor dissented.

Justice Breyer wrote a separate opinion concurring-in-the-judgement in part and dissenting in part. Justice Breyer agreed the ALJ's appointment had been invalid, but based this holding on statutory grounds. Justice Breyer did not want to reach the constitutional issue without also considering whether the Constitution places limits on the removal of SEC ALJs. Interestingly enough, the Solicitor General had argued that the two questions—appointment and removal—should be considered together, and was criticized for taking this position. Justice Breyer, it seems, agreed with the SG on the connection between the two issues.

Today's other two decisions were more traditional affairs, although the federal government was on the losing end in both. The Court split 5-4 along traditional ideological lines in Wisconsin Central Limited v. United States, concluding that (contra the position advanced by the IRS), stocks do not constitute "money renumeration" and are therefore not taxable compensation under the Railroad Retirement Tax Act. And in Pereira v. Sessions, the Court ruled 8-1 that a "notice to appear" at a removal proceeding must include the time and place of the demanded appearance to trigger the "stop-time" rule. Justice Sotomayor wrote for eight justices. Justice Alito dissented alone. Justice Kennedy had an interesting concurrence I'll discuss in another post.

More decisions will be handled down tomorrow. (Cue Rebecca Black.)