The U.S. Supreme Court has long analyzed disputes under the dormant Commerce Clause differently depending on whether the Court characterized the challenged state law as imposing a tax or a different type of regulatory burden. The Court’s recent decisions in a string of tax cases, however, have functionally eliminated the distance that has stood between the Court’s dual dormant Commerce Clause tests. That includes the Court’s recent decision in South Dakota v. Wayfair, Inc., which meaningfully reduced or eliminated the “nexus” requirement that the Court had imposed for purposes of authorizing the imposition of a state tax. This Article thus argues that the Court should formally eliminate its dual tests and recognize a unified dormant Commerce Clause.
Adam B. Thimmesch is Associate Professor of Law, University of Nebraska College Law.