Life (and Litigation) After Wayfair
Did Wayfair establish South Dakota SB 106 as the new bright-line rule?

In the May/June 2018 edition of Tax Executive, TEI graciously published my article titled “Why Wayfair Won’t Matter.” Admittedly, the title was a bit deceiving, what millennials disparagingly refer to as “clickbait.” Contrary to the title’s suggestion, I did not argue that the palpable buzz around Wayfair was unwarranted. Instead, I played it safe: I posited that no matter the outcome of Wayfair, which was still some weeks in the future, the state tax community would continue to fight over the “substantial nexus” prong of Complete Auto for years to come—an argument not nearly as radical as the one suggested by the title. Consider this article my mea culpa, and rest assured that it delivers on (or at least earnestly pursues) the promise of its title.

As I write this, now eighteen months removed from the Court’s decision in Wayfair, it may be too soon to tell whether my seemingly safe prediction was correct. Forced to pass judgment today, I’d consider the possibility that my prediction could very well be wrong. There is no active litigation challenging the application of Wayfair, state legislatures are not (for the most part) debating whether to follow South Dakota’s lead, and the nexus debates that dominated the state tax community have quieted down. But be patient. A close examination of Wayfair suggests that the Court’s decision will play a central role in future litigation, perhaps in ways none of us anticipate.

Quill Is Dead. But What Has Replaced It?

On June 21, 2018, the United States Supreme Court announced its decision in South Dakota v. Wayfair Inc. et al.¹ By a five-to-four vote, the Court: 1) overruled Quill’s physical presence rule and 2) held that South Dakota Senate Bill 106—as applied to Wayfair Inc.—satisfied the “substantial nexus” prong of Complete Auto.² This section briefly highlights the Court’s reasoning so as to set the stage for our exploration into the unknown: the future of litigation around the “substantial nexus” prong of Complete Auto.

Physical Presence: ‘Unsound,’ ‘Incorrect,’ and ‘Overruled’

The Court’s decision in Wayfair begins by describing the Court’s longstanding role as the adjudicator of Commerce Clause disputes for nearly two centuries, from Gibbons v. Ogden³ to Granholm v. Heald.⁴ The Court describes its role as ensuring the “necessary balance between state and federal power.”⁵ On the one hand, Congress has broad authority to regulate interstate commerce. On the other, when Congress does not act, states can, in certain circumstances, regulate interstate commerce. Accordingly, “the power to regulate commerce in some circumstances [is] held by the States and Congress concurrently.”⁶

The Court’s historical discussion in Wayfair lays the foundation for its overruling of Quill. After explaining that the federal government and state governments share the power to regulate interstate commerce, the Court recounts its role in balancing state sovereignty and the inherent power to tax against the need to promote a national economy premised on free trade and cross-border commerce. Of course, Congress has the primary authority to regulate this sphere—but when it does not act, states can exercise their taxing power to the extent that doing so does not violate the four prongs of Complete Auto.⁷ But, the Court notes, the physical presence rule did not originate through this federalism-driven process. Rather, the Court itself adopted the physical presence rule as a limit on state power because, at the time, the Court believed the rule was needed to protect interstate commerce from undue burdens imposed by various state tax laws.

In the Court’s view, times have changed since Bellas Hess (1967) and Quill (1992), in that with the rise of the internet, the physical presence rule no longer fulfills its intended purpose. For example, the Court emphasizes that “[i]n 1992, less than 2 percent of Americans had Internet access. Today that number is about 89 percent.”⁸ This increase reflects the extent to which the “Internet’s prevalence and power have changed the dynamics of the national economy.”⁹ Today, “buyers are closer to most major retailers than ever before—regardless of how close or far the nearest storefront.”¹⁰ This closeness is created through “targeted advertising and instant access to most consumers via any internet-enabled device,” and results in a “virtual showroom [that] can show far more inventory, in far more detail, and with greater opportunities for consumer and seller interaction than might be possible for local stores.”¹¹ The physical presence rule renders these contacts “simply irrelevant,” and the Court “should not maintain a rule that ignores these substantial virtual connections to the State.”¹²

In striking down the physical presence rule, the Court’s decision provided general comments regarding bright-line rules generally and their proper role in constitutional interpretation. The Court expressly acknowledged that its modern Commerce Clause jurisprudence “eschew[s] formalism for a sensitive, case-by-case analysis of purpose and effects.”¹³ But the physical presence rule embodies the formalism the Court disavows by “treat[ing] economically identical actors differently, and for arbitrary reasons.”¹⁴ The physical presence rule—like every other bright-line rule—necessarily applies to taxpayers detached from “functional, marketplace dynamics.”¹⁵ The Court abandoned bright-line rules in other areas of its Commerce Clause jurisprudence, and it saw no reason not to do so here—particularly when the bright-line rule is outdated and detached from modern economic realities.

The Court noted that the disconnect between the physical presence rule and the modern economy is not harmless; indeed, it creates “an extraordinary imposition by the Judiciary on the States’ authority to collect taxes and perform public functions.”¹⁶ It infringes on the sovereignty of the states, particularly with respect to their “reasonable choices in enacting their tax systems.”¹⁷ The physical presence rule “in effect . . . has come to serve as a judicially created tax shelter” for remote sellers and their customers.¹⁸ It is fundamentally unfair to the states “that seek fair enforcement of the sales tax, a tax many States for many years have considered an indispensable source for raising revenue.”¹⁹ And according to the Court, “[i]f it becomes apparent that the Court’s Commerce Clause decisions prohibit the States from exercising their lawful sovereign powers in our federal system, the Court should be vigilant in correcting the error.”²⁰ In some respects, the Court’s repudiation of the physical presence rule reflects its acknowledgment that it improperly interfered in the federalism-driven decision-making process between Congress and the states.

In sum, in Wayfair the Court refused to sit idly by to defend a rule—particularly one it created—that was detached from the realities of the modern economy, created market distortions, and arbitrarily applied a bright-line, formalistic approach to resolving complex issues of state-federal relations. Simply put, “[i]n the name of federalism and free markets, Quill does harm to both.”²¹

The New ‘Test’ for Substantial Nexus

After disposing of the physical presence rule, the Court stated that “the first prong of the Complete Auto test simply asks whether the tax applies to an activity with a substantial nexus with the taxing State.”²² “Such a nexus is established,” the Court continued, “when the taxpayer [or collector] ‘avails itself of the substantial privilege of carrying on business’ in that jurisdiction.”²³ Did Wayfair “avail” itself of the privilege of “carrying on business” in South Dakota? If so, it had a substantial nexus with South Dakota and can be compelled to collect and remit tax.

The Court answered in the affirmative, holding that “nexus is clearly sufficient based on both the economic and virtual contacts” that Wayfair had with South Dakota.²⁴ With respect to Wayfair’s economic contacts, there was no question that Wayfair satisfied the $100,000 sales threshold required under SB 106—and meeting “[t]his quantity of business” would not be possible unless Wayfair “availed itself” of the substantial privilege of carrying on business in South Dakota.²⁵ With respect to Wayfair’s virtual contacts, the Court simply stated that as a “large, national compan[y]” Wayfair “undoubtedly maintains an extensive virtual presence” in South Dakota.²⁶ Due to Wayfair’s economic and virtual contacts in South Dakota, the Court concluded that the substantial nexus prong of Complete Auto was satisfied.

In the closing section of its decision, the Court states that while Wayfair had substantial nexus with South Dakota, it was not clear whether “some other principle in the Court’s Commerce Clause doctrine might invalidate [SB 106].”²⁷ What might constitute “some other principle”? The Court—returning to its opening discussion of its Commerce Clause jurisprudence—suggests that SB 106 must nevertheless “prevent discrimination against or undue burdens upon interstate commerce.”²⁸ Because these issues were not litigated or briefed, the Court “need not resolve them here.”²⁹

In dicta, the Court suggests three reasons why SB 106 may not discriminate against or impose undue burdens on interstate commerce. First, SB 106 applies only if the economic thresholds are satisfied—in effect, this erects “a safe harbor to those who transact only limited business in South Dakota.”³⁰ Second, SB 106 specifically prohibited applying the law until the physical presence rule was struck down by the Court, thereby “ensur[ing] that no obligation to remit sales tax may be applied retroactively.”³¹ Finally, the Court suggests that because South Dakota adopted the Streamlined Sales and Use Tax Agreement, which “standardizes taxes to reduce administrative and compliance costs,” the burdens related to compliance may be minimized.³² But because these questions were not squarely before the Court, it remanded the case to state court for further consideration.

Such consideration never came, however. On October 31, 2018, South Dakota announced that it had entered into a settlement agreement and a stipulation of dismissal with Wayfair, thereby resolving the Wayfair saga.

What’s Next? Exploring Wayfair’s Unanswered Questions

Did Wayfair Establish SB 106 as the New Bright-Line Rule?

Did Wayfair create a new bright-line rule to determine whether a taxpayer has nexus with the state? Phrased differently, after Wayfair, is there any legitimate challenge to a state law that adopts the $100,000 sales and/or the 200-transaction threshold? After all, the Wayfair Court upheld those indicia with little difficulty. At a minimum, state legislative responses to Wayfair suggest that the states believe the answer is yes. Most states that have adopted Wayfair laws incorporated SB 106’s $100,000 sales threshold, and, of those states, most incorporated the 200-transaction threshold.

From the states’ perspective, adopting the same standards the Court upheld in Wayfair makes sense for several reasons. Most obviously, doing so grounds state law in Supreme Court precedent, which may discourage taxpayers from relitigating Wayfair in other states, absent extraordinary circumstances. And if a taxpayer brings a challenge, it is not hard to imagine a state’s first argument: the Supreme Court upheld this standard in Wayfair, and the state courts should do the same. In effect, the states would argue that if SB 106 was good enough for South Dakota, it is good enough for them, too.

On the one hand, the Court’s short treatment of why the economic thresholds in SB 106 were a sufficient measure of nexus weighs in favor of treating SB 106 as the new bright-line rule. After all, the Court said that “nexus is clearly sufficient based on . . . the economic . . . contacts” that Wayfair had with South Dakota.³³ The Court stated that satisfying the thresholds would not be possible unless Wayfair “availed itself” of the privilege to carry on business in South Dakota. Why, then, would a different taxpayer not have nexus if it met the same threshold in another state?

On the other hand, recall one of the reasons the Court overruled Quill: the physical presence rule—like any bright-line rule—invariably led to courts relying on “anachronistic formalisms” when deciding cases. Simply put, bright-line rules create a crude binary—the taxpayer is either physically present or not physically present. Such a binary analysis is inconsistent with the Court’s Commerce Clause jurisprudence, which “eschew[s] formalism” for “a sensitive, case-by-case analysis. . . .” Why would the Court renounce one bright-line rule only to replace it with another? Is there a meaningful distinction between a bright-line rule premised on “physical presence” and a bright-line rule premised on $100,000 in sales? If so, how does the latter align with the Court’s historical jurisprudence, which strongly favors “case-by-case” analyses rather than “formalism”?

While most states have generally adopted the indicia upheld in Wayfair, one state agency is taking a bolder approach. The Kansas Department of Revenue, in a highly controversial 2019 administrative pronouncement, stated that it would require all remote sellers to collect and remit tax regardless of the volume of sales to the state.³⁴ Specifically, the announcement asserts that “Kansas can, and does, require on-line and other remote sellers with no physical presence in Kansas to collect and remit the applicable sales or use tax on sales delivered into Kansas.”³⁵ In effect, the notice asserts that a remote seller who makes only $1 in sales to Kansas must collect and remit tax. A feud in the Kansas executive branch ensued. The state attorney general declared the Department of Revenue’s notice void and “of no legal force or effect.”³⁶ Immediately thereafter, Governor Laura Kelly dismissed the attorney general’s conclusion and reaffirmed the Department of Revenue’s decision to require remote sellers to collect and remit tax regardless of the amount of sales to the state.³⁷ The dispute between the attorney general and the Department of Revenue is unresolved as of this writing. If the Department of Revenue enforces its notice against remote sellers, the dispute may require resolution by the judiciary.

Did Wayfair Effectively Eliminate Meaningful Distinctions Between ‘Due Process Clause’ Nexus and ‘Commerce Clause’ Nexus?

Recall that Quill not only reaffirmed the physical presence rule but also specifically held that the “substantial nexus” requirement arose from both the Commerce Clause and the Due Process Clause. This Quill holding specifically overruled an often-overlooked Bellas Hess holding that “linked due process and the Commerce Clause together.”³⁸ Thus, although Quill is generally understood to reaffirm Bellas Hess’ physical presence rule, it must also be understood to overrule Bellas Hess’ linking of the Due Process Clause and Commerce Clause nexus analyses.

How do the nexus analyses under the Due Process Clause and the Commerce Clause differ? It is well settled that the Due Process Clause requires “some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.”³⁹ This test specifically does not require a taxpayer to be physically present. The Quill Court said as much: “The requirements of due process are met irrespective of a corporation’s lack of physical presence in the taxing state.”⁴⁰ But with respect to satisfying the nexus requirement of the Commerce Clause, Quill held that the taxpayer must be physically present in the taxing state. Did Wayfair effectively undo this split between the Due Process Clause and the Commerce Clause nexus analyses?

At first glance, the Wayfair Court appears to answer the question in the negative. Indeed, the Court specifically states that the Due Process Clause and Commerce Clause nexus analyses remain two independent requirements of a state tax: “Due Process and Commerce Clause standards may not be identical or coterminous.”⁴¹ This means that, at least in theory, a person could satisfy the nexus requirement for Due Process purposes but not for Commerce Clause purposes, and vice versa. But in the same breath, the Court states that “there are significant parallels” between the two clauses.⁴²

How significant are those parallels? The answer lies in considering why the Quill Court rejected a physical presence requirement for Due Process purposes: “[I]t is an inescapable fact of modern commercial life that a substantial amount of business is transacted . . . [with no] need for physical presence within a State in which business is conducted.”⁴³ Compare this reasoning with one of the Wayfair Court’s reasons for rejecting the physical presence requirement for Commerce Clause purposes: “Modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in Quill.”⁴⁴ Taken together, Quill and Wayfair stand for the following propositions:

• The Due Process Clause cannot require a person to be physically present in the taxing state because of “modern commercial life.”
• The Commerce Clause cannot require a person to be physically present in the taxing state because of “modern e-commerce.”

If physical presence is not the proper test for both the Due Process Clause and the Commerce Clause, what is? For Due Process Clause purposes, the Quill Court invoked the “purposeful availment” test, which asks whether a taxpayer “purposefully avails itself of the privilege of conducting activities within the forum State.”⁴⁵ There is no single way in which a taxpayer can purposefully avail itself of the state; rather, courts consider the facts and circumstances set forth in each case. The Wayfair Court echoes this test when describing what is required to establish nexus for Commerce Clause purposes: “[N]exus is established when the taxpayer [or collector] avails itself of the substantial privilege of carrying on business in that jurisdiction.”⁴⁶

In sum—and in light of the Court’s decision in Wayfair—both the Due Process Clause and the Commerce Clause require a substantial nexus between the taxpayer and the taxing state. Likewise, both clauses will find that a substantial nexus exists if a taxpayer availed itself of the taxing state. Although case law has not yet developed a “purposeful availment” test for purposes of the Commerce Clause, the same cannot be said of such a test for purposes of the Due Process Clause. Might future courts rely on the Court’s interpretation of the purposeful availment test under the Due Process Clause when interpreting the same test for Commerce Clause purposes? If so, would this cast doubt on the Wayfair Court’s assertion that the Due Process Clause and the Commerce Clause tests “may not be identical or coterminous”? Finally, does the Court’s adoption of the purposeful availment test shed light on whether Wayfair established a new bright-line rule? After all, the purposeful availment test for Due Process Clause purposes is a facts-and-circumstances test, not a bright-line rule.

When Does a Taxpayer ‘Purposefully Avail’ Itself of the Taxing State?

Wayfair makes clear that the substantial nexus prong of Complete Auto (i.e., the nexus requirement emanating from the Commerce Clause) is satisfied if a taxpayer “avails” itself of the privilege of doing business in the state. The Court set forth two reasons that Wayfair met this “availment” inquiry in South Dakota: its “economic contacts” and its “virtual contacts.” SB 106’s sales and transaction thresholds served as the measuring stick for the “economic contacts” component of the Court’s analysis. The same cannot be said for the “virtual contacts” component, in that SB 106 made no mention of “virtual contacts.” Nevertheless, the Court, of its own accord, introduced the “virtual contacts” concept in its analysis. Does this suggest that satisfying only the economic thresholds in SB 106 may be insufficient to create nexus? The Court did not discuss the weight of the “virtual contacts” component in its nexus analysis. How might the Court’s decision apply to a remote seller with significantly fewer virtual contacts than Wayfair? How does the Court even measure virtual contacts?

For example, suppose a remote seller solicits sales of its (very expensive) goods exclusively by telephone; it has no internet presence, nor does it contract with third parties to advertise on its behalf using the internet. The remote seller makes one $100,000 sale to a purchaser in South Dakota. This single sale satisfies the economic threshold in SB 106, and so the remote seller has sufficient “economic contacts” with South Dakota. But the remote seller has no internet presence—does this mean that it has no “virtual contacts” with South Dakota? If so, does the lack of virtual contacts render Wayfair inapplicable? Could there be other types of contacts that, when coupled with the economic contacts, justify a finding that nexus exists?

Using the same fact pattern above, suppose the remote seller hires one sales agent in the state to solicit business in South Dakota. It would be a stretch to deem the sales agent a “virtual” contact with the state—after all, the sales agent is a physical contact with the state. Does the Court’s reliance on economic and virtual contacts mean the remote seller does not have nexus with South Dakota, even if it has a physical contact with the state? Consider how, if at all, Wayfair impacts the Court’s earlier decisions in cases like Scripto, Inc. v. Carson⁴⁷ and Tyler Pipe Industries, Inc. v. Washington Department of Revenue.⁴⁸

Last, suppose that instead of hiring a sales agent in South Dakota, the remote seller hires one employee in South Dakota to handle its payroll function. The employee never solicits business in the state—the employee does not even know what the remote seller is selling. The employee’s exclusive purpose is to handle the payroll function for the remote seller. Does the presence of a single employee in South Dakota—even an employee unrelated to the remote seller’s sales—create nexus for the remote seller? Prior to Wayfair, the answer was clearly yes under the Court’s 1977 decision in National Geographic Society v. Board of Equalization.⁴⁹ But in light of Wayfair, does a taxpayer really “purposefully avail” itself of a state by hiring a single employee whose job is unrelated to the taxpayer’s ability to solicit or make sales in the state?

Admittedly, the fact patterns described above may not represent most business operations in the modern economy. Nevertheless, they are useful in exploring the challenges created by replacing Quill’s bright-line rule with the “availment” inquiry. The Court, at least in part, overturned Quill because it was an outlier in its Commerce Clause jurisprudence, which “eschew[s] formalism for a sensitive, case-by-case analysis of purpose and effects.”⁵⁰ If Wayfair brings the “substantial nexus” analysis in line with this jurisprudential underpinning—particularly if the new Commerce Clause analysis has “significant parallels” with the Due Process analysis—the exercises above may foreshadow future litigation in this arena.

Did the Court Set Up a New Test That State Taxes Must Pass? The Court’s ‘Undue Burdens’ Discussion

As briefly described above, the Court concludes its Wayfair decision by raising the possibility that “some other principle in the Court’s Commerce Clause doctrine” might invalidate SB 106. The Court does not appear to be referring to the remaining prongs of Complete Auto. Rather, the Court seems to refer to the “two primary principles that mark the boundaries of a State’s authority to regulate interstate commerce.”⁵¹ The first principle is that “state regulations may not discriminate against interstate commerce.”⁵² The second principle—and the focus of the discussion here—is that “States may not impose undue burdens on interstate commerce.”⁵³

Early in its decision, the Court describes the “undue burdens” principle by way of Pike v. Bruce Church, Inc.⁵⁴ This case held that a state law that “regulates even-handedly to effectuate a legitimate local public interest . . . will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”⁵⁵ At this point in the Wayfair decision, the significance of the Court’s mention of the undue burdens analysis is not obvious; rather, it reads as though the Court is simply setting forth the relevant history regarding its Commerce Clause jurisprudence. Not until the second-to-last paragraph of the Court’s decision does this passing reference to undue burdens enter the analytical framework through which SB 106 should be analyzed. But even then, the Court simply remands the case to state court for consideration. Such further consideration never came to fruition, as the parties settled the case.

What is this “undue burdens” test, and why might it matter when considering how to apply Wayfair in the future? Prior to Wayfair, the undue burdens test was generally applied to state laws other than tax laws that could harm interstate commerce. For example, the undue burdens analysis was used in Pike to determine whether a state law regarding the packaging and labeling of cantaloupes violated the Dormant Commerce Clause. In this case, Arizona enacted a statute that required all packages of Arizona-grown cantaloupes to be labeled in a way that noted their state of origin, i.e., Arizona. A cantaloupe grower in Arizona, rather than package and label its Arizona-grown cantaloupes at its Arizona facility, shipped them for packaging to its facility in California. This violated the Arizona statute, so the state prohibited the grower from shipping its cantaloupes out of the state unless it complied with the packaging and labeling requirements. The cantaloupe grower argued that the statute violated the Dormant Commerce Clause.

Because Pike did not involve a state tax, Complete Auto’s four-part test would not be helpful in analyzing that statute. Instead, the Court asked whether the Arizona law imposed an “undue burden” on interstate commerce. To answer this question, the Court applied a balancing test that weighed the state’s legitimate interest in regulating the cantaloupe industry against the burdens that regulation imposed on interstate commerce—in this case, the inability to ship cantaloupes outside of Arizona. This test is commonly referred to as the Pike-balancing test. The Court concluded that on balance, the state’s interest in regulating the cantaloupe industry did not outweigh the burdens imposed on interstate commerce.

The Pike-balancing test was generally irrelevant for analyzing state tax laws; Complete Auto provided the analytical framework to review state tax laws, so courts developed the Pike-balancing test for use almost exclusively outside the state tax context. But in Wayfair, the Court remanded the case to state court to determine whether SB 106 satisfied the undue burdens analysis. Framing the Pike-balancing test as a necessary analytical tool is significant. After Wayfair, a state tax must pass not only Complete Auto’s four-prong test but also the Pike-balancing test.

In practice, adding Pike-balancing to the analytical framework may provide little protection to taxpayers. If a state tax passes Complete Auto’s test, it would likely take extraordinary facts and circumstances to nevertheless fail the Pike-balancing test. Moreover, the outcome of Pike-balancing in the nontax context offers little hope to taxpayers. In recent years, states have invariably prevailed when courts apply Pike-balancing. Nevertheless, the Court made clear that the “undue burdens” analysis—generally analyzed using the Pike-balancing test—is separate from Complete Auto.

Closing Thoughts

When we look back on this period one day, we may very well characterize it as the calm before the storm. Wayfair may have answered one important question, but it asks so many more. What are we to make of the Court’s return to the days of Bellas Hess, when Due Process nexus and Commerce Clause nexus are nearly indistinguishable? Does Wayfair cast doubt on other important cases, such as National Geographic? Will the “undue burdens” analysis gain momentum and take a prominent role in future litigation? Only time will tell.

Jonathan E. Maddison is a tax associate at Reed Smith LLP in Philadelphia.

Endnotes

1. South Dakota v. Wayfair, Inc. et al., 585 U.S. __ , 138 S. Ct. 2080 (2018) (hereinafter “Wayfair”).
2. While the decision was five to four, it should be noted that all nine justices agreed that Quill (and, prior to Quill, National Bellas Hess) was “wrongly decided.” Id. at 585 U.S. ___ (Chief Justice Roberts, dissenting). Their disagreement turned on whether the Court or Congress should overrule Quill, with the majority choosing the former and the minority preferring the latter.
3. 9 Wheat. 1 (1824).
4. 544 U.S. 460, 476 (2005).
5. Wayfair, 138 S.Ct. at 2090.
6. Id.
7. 430 U.S. 274 (1977).
8. Wayfair, 138 S.Ct. at 2097.
9. Id.
10. Id. at 2095 (internal quotations and citations omitted).
11. Id.
12. Id.
13. West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 201 (1994).
14. Wayfair, 138 S.Ct. at 2085.
15. Id. at 2095.
16. Id.
17. Id.
18. Id. at 2094.
19. Id. at 2096.
20. Id.
21. Id.
22. Id. at 2099.
23. Id. (citing Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1, 11 (2009)).
24. Id.
25. Id.
26. Id.
27. Id.
28. Id.
29. Id.
30. Id.
31. Id.
32. Id.
33. Wayfair, 138 S.Ct. at 2099 (emphasis added).
34. Notice 19-04, “Sales Tax Requirements for Retailers Doing Business in Kansas,” Kansas Department of Revenue, August 1, 2019, ksrevenue.org/taxnotices/notice19-04.pdf.
35. Id.
36. See Attorney General Opinion No. 2019-8 (September 30, 2019).
37. See Amy Hamilton, “Kansas Governor Brushes Off Objections to Wayfair Notice,” State Tax Today (October 2, 2019).
38. Id. at 2091.
39. Miller Bros. Co. v. Maryland, 347 U.S. 340, 344–45 (1945).
40. Quill, 504 U.S. at 308.
41. Wayfair, 138 S.Ct. at 2093.
42. Id.
43. Quill, 504 U.S. at 308.
44. Wayfair, 138 S.Ct. at 2095.
45. Hanson v. Denckla, 357 U.S. 235, 253 (1958).
46. Wayfair, 138 S.Ct. at 2099.
47. 362 U.S. 207 (1960).
48. 483 U.S. 232 (1987).
49. 430 U.S. 551 (1977).
50. West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 201 (1994).
51. Wayfair, 138 S.Ct. at 2090.
52. Id. at 2091.
53. Id.
54. 397 U.S. 137 (1970).
55. Id. at 142.