Wayfair and the Myth of Substantial Nexus

This Article addresses the Quill court’s erroneous use of the term “substantial nexus,” which allowed it to bifurcate Due Process and Commerce Clause nexus, and the Wayfair court’s failure to finally put this mistake to bed. The Court in Quill latched on to this empty phrase of substantial nexus from Complete Auto to clear the way for Congress to overrule its decision. (Congress cannot legislate on matters of due process, but can act under the Commerce Clause to overrule dormant Commerce Clause decisions.) In Wayfair, while the Supreme Court correctly eradicated Quill’s physical presence requirement for market state use tax collection, it nonetheless failed to clarify what constitutes substantial nexus under Complete Auto’s first prong. Instead, the Court further muddied the nexus standard. The Wayfair majority could have explicitly disavowed Quill’s inaccurate, political use of “substantial nexus,” and returned the concept of nexus back to its roots in the Due Process Clause. But the Court did not. While an express disavowal would have been more analytically pure, it would not have been a panacea. Nonetheless, it would have at least remedied the Court’s original error—bifurcating the concept of nexus under the two different constitutional provisions.