NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 17–494

															_________________

															SOUTH DAKOTA, PETITIONER v. WAYFAIR,
INC., et al.

															on writ of certiorari to the supreme court of
south dakota

															[June 21, 2018]

															Justice Kennedy delivered the opinion of the
Court.

															When a consumer purchases goods or services, the
consumer’s State often imposes a sales tax. This case requires the
Court to determine when an out-of-state seller can be required to
collect and remit that tax. All concede that taxing the sales in
question here is lawful. The question is whether the out-of-state
seller can be held responsible for its payment, and this turns on a
proper interpretation of the Commerce Clause, U. S. Const.,
Art. I, §8, cl. 3.

															In two earlier cases the Court held that an
out-of-state seller’s liability to collect and remit the tax to the
consumer’s State depended on whether the seller had a physical
presence in that State, but that mere shipment of goods into the
consumer’s State, following an order from a catalog, did not
satisfy the physical presence requirement. National Bellas Hess,
Inc. v. Department of Revenue of Ill. , 386 U. S.
753 (1967); Quill Corp. v. North Dakota , 504
U. S. 298 (1992). The Court granted certiorari here to
reconsider the scope and validity of the physical presence rule
mandated by those cases.

															I

															Like most States, South Dakota has a sales
tax. It taxes the retail sales of goods and services in the State.
S. D. Codified Laws §§10–45–2, 10–45–4 (2010 and Supp. 2017).
Sellers are generally required to collect and remit this tax to the
Department of Revenue. §10–45–27.3. If for some reason the sales
tax is not remitted by the seller, then in-state consumers are
separately responsible for paying a use tax at the same rate. See
§§10–46–2, 10–46–4, 10–46–6. Many States employ this kind of
complementary sales and use tax regime.

															Under this Court’s decisions in Bellas
Hess and Quill , South Dakota may not require a business
to collect its sales tax if the business lacks a physical presence
in the State. Without that physical presence, South Dakota instead
must rely on its residents to pay the use tax owed on their
purchases from out-of-state sellers. “[T]he impracticability of
[this] collection from the multitude of individual purchasers is
obvious.” National Geographic Soc. v. California Bd. of
Equalization , 430 U. S. 551, 555 (1977). And consumer
compliance rates are notoriously low. See, e.g., GAO, Report
to Congressional Requesters: Sales Taxes, States Could Gain Revenue
from Expanded Authority, but Businesses Are Likely to Experience
Compliance Costs 5 (GAO–18–114, Nov. 2017) (Sales Taxes Report);
California State Bd. of Equalization, Revenue Estimate: Electronic
Commerce and Mail Order Sales 7 (2013) (Table 3) (estimating a 4
percent collection rate). It is estimated that Bellas Hess and Quill cause the States to lose between $8 and $33
billion every year. See Sales Taxes Report, at 11–12 (estimating $8
to $13 billion); Brief for Petitioner 34–35 (citing estimates of
$23 and $33.9 billion). In South Dakota alone, the Department of
Revenue estimates revenue loss at $48 to $58 million annually. App.
24. Particularly because South Dakota has no state income tax, it
must put substantial reliance on its sales and use taxes for the
revenue necessary to fund essential services. Those taxes account
for over 60 percent of its general fund.

															In 2016, South Dakota confronted the serious
inequity Quill imposes by enacting S. 106—“An Act to provide
for the collection of sales taxes from certain remote sellers, to
establish certain Legislative findings, and to declare an
emergency.” S. 106, 2016 Leg. Assembly, 91st Sess. (S. D. 2016) (S.
B. 106). The legislature found that the inability to collect sales
tax from remote sellers was “seriously eroding the sales tax base”
and “causing revenue losses and imminent harm . . .
through the loss of critical funding for state and local services.”
§8(1). The legislature also declared an emergency: “Whereas, this
Act is necessary for the support of the state government and its
existing public institutions, an emergency is hereby declared to
exist.” §9. Fearing further erosion of the tax base, the
legislature expressed its intention to “apply South Dakota’s sales
and use tax obligations to the limit of federal and state
constitutional doctrines” and noted the urgent need for this Court
to reconsider its precedents. §§8(11), (8).

															To that end, the Act requires out-of-state
sellers to collect and remit sales tax “as if the seller had a
physical presence in the state.” §1. The Act applies only to
sellers that, on an annual basis, deliver more than $100,000 of
goods or services into the State or engage in 200 or more separate
transactions for the delivery of goods or services into the State. Ibid. The Act also forecloses the retroactive application of
this requirement and provides means for the Act to be appropriately
stayed until the constitutionality of the law has been clearly
established. §§5, 3, 8(10).

															Respondents Wayfair, Inc., Overstock.com, Inc.,
and Newegg, Inc., are merchants with no employees or real estate in
South Dakota. Wayfair, Inc., is a leading online retailer of home
goods and furniture and had net revenues of over $4.7 billion last
year. Overstock.com, Inc., is one of the top online retailers in
the United States, selling a wide variety of products from home
goods and furniture to clothing and jewelry; and it had net
revenues of over $1.7 billion last year. Newegg, Inc., is a major
online retailer of consumer electronics in the United States. Each
of these three companies ships its goods directly to purchasers
throughout the United States, including South Dakota. Each easily
meets the minimum sales or transactions requirement of the Act, but
none collects South Dakota sales tax. 2017 S. D. 56, ¶¶ 10–11,
901 N. W. 2d 754, 759–760.

															Pursuant to the Act’s provisions for expeditious
judicial review, South Dakota filed a declaratory judgment action
against respondents in state court, seeking a declaration that the
requirements of the Act are valid and applicable to respondents and
an injunction requiring respondents to register for licenses to
collect and remit sales tax. App. 11, 30. Respondents moved for
summary judgment, arguing that the Act is unconstitutional. 901
N. W. 2d, at 759–760. South Dakota conceded that the Act
cannot survive under Bellas Hess and Quill but
asserted the importance, indeed the necessity, of asking this Court
to review those earlier decisions in light of current economic
realities. 901 N. W. 2d, at 760; see also S. B. 106, §8. The
trial court granted summary judgment to respondents. App. to Pet.
for Cert. 17a.

															The South Dakota Supreme Court affirmed. It
stated: “However persuasive the State’s arguments on the merits of
revisiting the issue, Quill has not been overruled [and]
remains the controlling precedent on the issue of Commerce Clause
limitations on interstate collection of sales and use taxes.” 901
N. W. 2d, at 761. This Court granted certiorari. 583
U. S. ___ (2018).

															II

															The Constitution grants Congress the power
“[t]o regulate Commerce . . . among the several States.”
Art. I, §8, cl. 3. The Commerce Clause “reflect[s] a
central concern of the Framers that was an immediate reason for
calling the Constitutional Convention: the conviction that in order
to succeed, the new Union would have to avoid the tendencies toward
economic Balkanization that had plagued relations among the
Colonies and later among the States under the Articles of
Confederation.” Hughes v. Oklahoma , 441 U. S.
322, 325–326 (1979). Although the Commerce Clause is written as an
affirmative grant of authority to Congress, this Court has long
held that in some instances it imposes limitations on the States
absent congressional action. Of course, when Congress exercises its
power to regulate commerce by enacting legislation, the legislation
controls. Southern Pacific Co. v. Arizona ex rel.
Sullivan , 325 U. S. 761, 769 (1945). But this Court has
observed that “in general Congress has left it to the courts to
formulate the rules” to preserve “the free flow of interstate
commerce.” Id., at 770.

															To understand the issue presented in this case,
it is instructive first to survey the general development of this
Court’s Commerce Clause principles and then to review the
application of those principles to state taxes.

															A

															From early in its history, a central function
of this Court has been to adjudicate disputes that require
interpretation of the Commerce Clause in order to determine its
meaning, its reach, and the extent to which it limits state
regulations of commerce. Gibbons v. Ogden , 9 Wheat. 1
(1824), began setting the course by defining the meaning of
commerce. Chief Justice Marshall explained that commerce included
both “the interchange of commodities” and “commercial intercourse.” Id., at 189, 193. A concurring opinion further stated that
Congress had the exclusive power to regulate commerce. See id., at 236 (opinion of Johnson, J.). Had that latter
submission prevailed and States been denied the power of concurrent
regulation, history might have seen sweeping federal regulations at
an early date that foreclosed the States from experimentation with
laws and policies of their own, or, on the other hand, proposals to
reexamine Gibbons ’ broad definition of commerce to
accommodate the necessity of allowing States the power to enact
laws to implement the political will of their people.

															Just five years after Gibbons , however,
in another opinion by Chief Justice Marshall, the Court sustained
what in substance was a state regulation of interstate commerce. In Willson v. Black Bird Creek Marsh Co. , 2 Pet. 245
(1829), the Court allowed a State to dam and bank a stream that was
part of an interstate water system, an action that likely would
have been an impermissible intrusion on the national power over
commerce had it been the rule that only Congress could regulate in
that sphere. See id., at 252. Thus, by implication at least,
the Court indicated that the power to regulate commerce in some
circumstances was held by the States and Congress concurrently. And
so both a broad interpretation of interstate commerce and the
concurrent regulatory power of the States can be traced to Gibbons and Willson .

															Over the next few decades, the Court refined the
doctrine to accommodate the necessary balance between state and
federal power. In Cooley v. Board of Wardens of Port of
Philadelphia ex rel. Soc. for Relief of Distressed Pilots , 12
How. 299 (1852), the Court addressed local laws regulating river
pilots who operated in interstate waters and guided many ships on
interstate or foreign voyages. The Court held that, while Congress
surely could regulate on this subject had it chosen to act, the
State, too, could regulate. The Court distinguished between those
subjects that by their nature “imperatively deman[d] a single
uniform rule, operating equally on the commerce of the United
States,” and those that “deman[d] th[e] diversity, which alone can
meet . . . local necessities.” Id. , at 319. Though
considerable uncertainties were yet to be overcome, these
precedents still laid the groundwork for the analytical framework
that now prevails for Commerce Clause cases.

															This Court’s doctrine has developed further with
time. Modern precedents rest upon two primary principles that mark
the boundaries of a State’s authority to regulate interstate
commerce. First, state regulations may not discriminate against
interstate commerce; and second, States may not impose undue
burdens on interstate commerce. State laws that discriminate
against interstate commerce face “a virtually per se rule of invalidity.” Granholm v. Heald , 544
U. S. 460, 476 (2005) (internal quotation marks omitted).
State laws that “regulat[e] 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.” Pike v. Bruce
Church, Inc. , 397 U. S. 137, 142 (1970); see also Southern Pacific , supra , at 779. Al- though subject
to exceptions and variations, see, e.g., Hughes v. Alexandria Scrap Corp. , 426 U. S. 794 (1976); Brown-Forman Distillers Corp. v. New York State Liquor
Authority , 476 U. S. 573 (1986), these two principles
guide the courts in adjudicating cases challenging state laws under
the Commerce Clause.

															B

															These principles also animate the Court’s
Commerce Clause precedents addressing the validity of state taxes.
The Court explained the now-accepted framework for state taxation
in Complete Auto Transit, Inc. v. Brady , 430
U. S. 274 (1977). The Court held that a State “may tax
exclusively interstate commerce so long as the tax does not create
any effect forbidden by the Commerce Clause.” Id. , at 285.
After all, “interstate commerce may be required to pay its fair
share of state taxes.” D. H. Holmes Co. v. McNamara ,
486 U. S. 24, 31 (1988). The Court will sustain a tax so long
as it (1) applies to an activity with a substantial nexus with the
taxing State, (2) is fairly apportioned, (3) does not discriminate
against interstate commerce, and (4) is fairly related to the
services the State provides. See Complete Auto , supra , at 279.

															Before Complete Auto , the Court had
addressed a challenge to an Illinois tax that required out-of-state
retailers to collect and remit taxes on sales made to consumers who
purchased goods for use within Illinois. Bellas Hess , 386
U. S., at 754–755. The Court held that a mail-order company
“whose only connection with customers in the State is by common
carrier or the United States mail” lacked the requisite minimum
contacts with the State required by both the Due Process Clause and
the Commerce Clause. Id., at 758. Unless the retailer
maintained a physical presence such as “retail outlets, solicitors,
or property within a State,” the State lacked the power to require
that retailer to collect a local use tax. Ibid. The dissent
dis- agreed: “There should be no doubt that this large-scale,
systematic, continuous solicitation and exploitation of the
Illinois consumer market is a sufficient ‘nexus’ to require Bellas
Hess to collect from Illinois customers and to remit the use tax.” Id., at 761–762 (opinion of Fortas, J., joined by Black and
Douglas, JJ.).

															In 1992, the Court reexamined the physical
presence rule in Quill . That case presented a challenge to
North Dakota’s “attempt to require an out-of-state mail-order house
that has neither outlets nor sales representatives in the State to
collect and pay a use tax on goods purchased for use within the
State.” 504 U. S., at 301. Despite the fact that Bellas
Hess linked due process and the Commerce Clause together, the
Court in Quill overruled the due process holding, but not
the Commerce Clause holding; and it thus reaffirmed the physical
presence rule. 504 U. S., at 307–308, 317–318.

															The Court in Quill recognized that
intervening precedents, specifically Complete Auto , “might
not dictate the same result were the issue to arise for the first
time today.” 504 U. S., at 311. But, nevertheless, the Quill majority concluded that the physical presence rule was
necessary to prevent undue burdens on interstate commerce. Id., at 313, and n. 6. It grounded the physical
presence rule in Complete Auto ’s requirement that a tax have
a “ ‘substantial nexus’ ” with the activity being taxed.
504 U. S., at 311.

															Three Justices based their decision to uphold
the physical presence rule on stare decisis alone. Id. , at 320 (Scalia, J., joined by Kennedy and Thomas, JJ.,
concurring in part and concurring in judgment). Dissenting in
relevant part, Justice White argued that “there is no relationship
between the physical-presence/nexus rule the Court retains and
Commerce Clause considerations that allegedly justify it.” Id. , at 327 (opinion concurring in part and dissenting in
part).

															III

															The physical presence rule has “been the
target of criticism over many years from many quarters.” Direct
Marketing Assn. v. Brohl , 814 F. 3d 1129, 1148,
1150–1151 (CA10 2016) (Gorsuch, J., concurring). Quill , it
has been said, was “premised on assumptions that are unfounded” and
“riddled with internal inconsistencies.” Rothfeld, Quill :
Confusing the Commerce Clause, 56 Tax Notes 487, 488 (1992 ). Quill created an inefficient “online sales tax loophole”
that gives out-of-state businesses an advantage. A. Laffer & D.
Arduin, Pro-Growth Tax Reform and E-Fairness 1, 4 (July 2013). And
“while nexus rules are clearly necessary,” the Court “should focus
on rules that are appropriate to the twenty-first century, not the
nineteenth.” Hellerstein, Deconstructing the Debate Over State
Taxation of Electronic Commerce, 13 Harv. J. L. & Tech.
549, 553 (2000). Each year, the physical presence rule becomes
further removed from economic reality and results in significant
revenue losses to the States. These critiques underscore that the
physical presence rule, both as first formulated and as applied
today, is an incorrect interpretation of the Commerce Clause.

															A Quill is flawed on its own terms.
First, the physical presence rule is not a necessary interpretation
of the requirement that a state tax must be “applied to an activ-
ity with a substantial nexus with the taxing State.” Complete
Auto , 430 U. S., at 279. Second, Quill creates
rather than resolves market distortions. And third, Quill im- poses the sort of arbitrary, formalistic distinction that the
Court’s modern Commerce Clause precedents disavow.

															1

															All agree that South Dakota has the authority
to tax these transactions. S. B. 106 applies to sales of “tangible
personal property, products transferred electronically, or services for delivery into South Dakota .” §1 (emphasis added). “It
has long been settled” that the sale of goods or services “has a
sufficient nexus to the State in which the sale is consummated to
be treated as a local transaction taxable by that State.” Oklahoma Tax Comm’n v. Jefferson Lines, Inc. , 514
U. S. 175, 184 (1995); see also 2 C. Trost & P. Hartman,
Federal Limitations on State and Local Taxation 2d §11:1, p. 471
(2003) (“Generally speaking, a sale is attributable to its
destination”).

															The central dispute is whether South Dakota may
require remote sellers to collect and remit the tax without some
additional connection to the State. The Court has previously stated
that “[t]he imposition on the seller of the duty to insure
collection of the tax from the purchaser does not violate the
[C]ommerce [C]lause.” McGoldrick v. Berwind-White Coal
Mining Co. , 309 U. S. 33, 50, n. 9 (1940). It is a
“ ‘familiar and sanctioned device.’ ” Scripto,
Inc. v. Carson , 362 U. S. 207, 212 (1960). There
just must be “a substantial nexus with the taxing State.” Complete Auto , supra , at 279.

															This nexus requirement is “closely related,” Bellas Hess , 386 U. S., at 756, to the due process
requirement that there be “some definite link, some minimum
connection, between a state and the person, property or transaction
it seeks to tax,” Miller Brothers Co. v. Maryland ,
347 U. S. 340, 344–345 (1954). It is settled law that a
business need not have a physical presence in a State to satisfy
the demands of due process. Burger King Corp. v. Rudzewicz , 471 U. S. 462, 476 (1985). Although physical
presence “ ‘frequently will enhance’ ” a business’
connection with a State, “ ‘it 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.’ ” Quill , 504 U. S., at 308. Quill itself
recognized that “[t]he requirements of due process are met
irrespective of a corporation’s lack of physical presence in the
taxing State.” Ibid. When considering whether a State may levy a tax,
Due Process and Commerce Clause standards may not be identical or
coterminous, but there are significant parallels. The reasons given
in Quill for rejecting the physical presence rule for due
process purposes apply as well to the question whether physical
presence is a requisite for an out-of-state seller’s liability to
remit sales taxes. Physical presence is not necessary to create a
substantial nexus.

															The Quill majority expressed concern that
without the physical presence rule “a state tax might unduly burden
interstate commerce” by subjecting retailers to tax-collection
obligations in thousands of different taxing jurisdictions. Id. , at 313, n. 6. But the administrative costs of
compliance, especially in the modern economy with its Internet
technology, are largely unrelated to whether a company happens to
have a physical presence in a State. For example, a business with
one salesperson in each State must collect sales taxes in every
jurisdiction in which goods are delivered; but a business with 500
salespersons in one central location and a website accessible in
every State need not collect sales taxes on otherwise identical
nationwide sales. In other words, under Quill , a small
company with diverse physical presence might be equally or more
burdened by compliance costs than a large remote seller. The
physical presence rule is a poor proxy for the compliance costs
faced by companies that do business in multiple States. Other
aspects of the Court’s doctrine can better and more accurately
address any potential burdens on interstate commerce, whether or
not Quill ’s physical presence rule is satisfied.

															2

															The Court has consistently explained that the
Commerce Clause was designed to prevent States from engaging in
economic discrimination so they would not divide into isolated,
separable units. See Philadelphia v. New Jersey , 437
U. S. 617, 623 (1978). But it is “not the purpose of the
[C]ommerce [C]lause to relieve those engaged in interstate commerce
from their just share of state tax burden.” Complete Auto , supra , at 288 (internal quotation marks omitted). And it is
certainly not the purpose of the Commerce Clause to permit the
Judiciary to create market distortions. “If the Commerce Clause was
intended to put businesses on an even playing field, the [physical
presence] rule is hardly a way to achieve that goal.” Quill , supra , at 329 (opinion of White, J.). Quill puts both local businesses and many
interstate businesses with physical presence at a competitive
disadvantage relative to remote sellers. Remote sellers can avoid
the regulatory burdens of tax collection and can offer de facto lower prices caused by the widespread failure
of consumers to pay the tax on their own. This “guarantees a
competitive benefit to certain firms simply because of the
organizational form they choose” while the rest of the Court’s
jurisprudence “is all about preventing discrimination between
firms.” Direct Marketing , 814 F. 3d, at 1150–1151
(Gorsuch, J., concurring). 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.

															Worse still, the rule produces an incentive to
avoid physical presence in multiple States. Distortions caused by
the desire of businesses to avoid tax collection mean that the
market may currently lack storefronts, distribution points, and
employment centers that otherwise would be efficient or desirable.
The Commerce Clause must not prefer interstate commerce only to the
point where a merchant physically crosses state borders. Rejecting
the physical presence rule is necessary to ensure that artificial
competitive advantages are not created by this Court’s precedents.
This Court should not prevent States from collecting lawful taxes
through a physical presence rule that can be satisfied only if
there is an employee or a building in the State.

															3

															The Court’s Commerce Clause jurisprudence has
“eschewed formalism for a sensitive, case-by-case analysis of
purposes and effects.” West Lynn Creamery, Inc. v. Healy , 512 U. S. 186, 201 (1994). Quill , in
contrast, treats economically identical actors differently, and for
arbitrary reasons.

															Consider, for example, two businesses that sell
furniture online. The first stocks a few items of inventory in a
small warehouse in North Sioux City, South Dakota. The second uses
a major warehouse just across the border in South Sioux City,
Nebraska, and maintains a sophisticated website with a virtual
showroom accessible in every State, including South Dakota. By
reason of its physical presence, the first business must collect
and remit a tax on all of its sales to customers from South Dakota,
even those sales that have nothing to do with the warehouse. See National Geographic , 430 U. S., at 561; Scripto,
Inc. , 362 U. S., at 211–212. But, under Quill , the
second, hypothetical seller cannot be subject to the same tax for
the sales of the same items made through a pervasive Internet
presence. This distinction simply makes no sense. So long as a
state law avoids “any effect forbidden by the Commerce Clause,” Complete Auto , 430 U. S., at 285, courts should not
rely on anachronistic formalisms to invalidate it. The basic
principles of the Court’s Commerce Clause jurisprudence are
grounded in functional, marketplace dynamics; and States can and
should consider those realities in enacting and enforcing their tax
laws.

															B

															The Quill Court itself acknowledged
that the physical presence rule is “artificial at its edges.” 504
U. S., at 315. That was an understatement when Quill was decided; and when the day-to-day functions of marketing and
distribution in the modern economy are considered, it is all the
more evident that the physical presence rule is artificial in its
entirety.

															Modern e-commerce does not align analytically
with a test that relies on the sort of physical presence defined in Quill . In a footnote, Quill rejected the argument
that “title to ‘a few floppy diskettes’ present in a State” was
sufficient to constitute a “substantial nexus,” id ., at 315,
n. 8. But it is not clear why a single employee or a single
warehouse should create a substantial nexus while “physical”
aspects of pervasive modern technology should not. For example, a
company with a website accessible in South Dakota may be said to
have a physical presence in the State via the customers’ computers.
A website may leave cookies saved to the customers’ hard drives, or
customers may download the company’s app onto their phones. Or a
company may lease data storage that is permanently, or even
occasionally, located in South Dakota. Cf. United States v. Microsoft Corp. , 584 U. S. ___ (2018) ( per
curiam ). What may have seemed like a “clear,” “bright-line
tes[t]” when Quill was written now threatens to compound the
arbitrary consequences that should have been apparent from the
outset. 504 U. S., at 315.

															The “dramatic technological and social changes”
of our “increasingly interconnected economy” mean that buyers are
“closer to most major retailers” than ever before—“regardless of
how close or far the nearest storefront.” Direct Marketing
Assn. v. Brohl , 575 U. S. ___, ___, ___ (2015)
(Kennedy, J., concurring) (slip op., at 2, 3). Between targeted
advertising and instant access to most consumers via any
internet-enabled device, “a business may be present in a State in a
meaningful way without” that presence “being physical in the
traditional sense of the term.” Id. , at ___ (slip op., at
3). A virtual showroom 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. Yet the
continuous and pervasive virtual presence of retailers today is,
under Quill , simply irrelevant. This Court should not
maintain a rule that ignores these substantial virtual connections
to the State.

															C

															The physical presence rule as defined and
enforced in Bellas Hess and Quill is not just a
technical legal problem—it is an extraordinary imposition by the
Judiciary on States’ authority to collect taxes and perform
critical public functions. Forty-one States, two Territories, and
the District of Columbia now ask this Court to reject the test
formulated in Quill . See Brief for Colorado et al. as Amici Curiae . Quill ’s physical presence rule intrudes
on States’ reasonable choices in enacting their tax systems. And
that it allows remote sellers to escape an obligation to remit a
lawful state tax is unfair and unjust. It is unfair and unjust to
those competitors, both local and out of State, who must remit the
tax; to the consumers who pay the tax; and 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.

															In essence, respondents ask this Court to retain
a rule that allows their customers to escape payment of sales
taxes—taxes that are essential to create and secure the active
market they supply with goods and services. An example may suffice.
Wayfair offers to sell a vast selection of furnishings. Its
advertising seeks to create an image of beautiful, peaceful homes,
but it also says that “ ‘[o]ne of the best things about buying
through Wayfair is that we do not have to charge sales tax.’ ”
Brief for Petitioner 55. What Wayfair ignores in its subtle offer
to assist in tax evasion is that creating a dream home assumes
solvent state and local governments. State taxes fund the police
and fire departments that protect the homes containing their
customers’ furniture and ensure goods are safely delivered;
maintain the public roads and municipal services that allow
communication with and access to customers; support the “sound
local banking institutions to support credit transactions [and]
courts to ensure collection of the purchase price,” Quill ,
504 U. S., at 328 (opinion of White, J.); and help create the
“climate of consumer confidence” that facilitates sales, see ibid. According to respondents, it is unfair to stymie their
tax-free solicitation of customers. But there is nothing unfair
about requiring companies that avail themselves of the States’
benefits to bear an equal share of the burden of tax collection.
Fairness dictates quite the opposite result. Helping respondents’
customers evade a lawful tax unfairly shifts to those consumers who
buy from their competitors with a physical presence that satisfies Quill —even one warehouse or one salesperson—an increased
share of the taxes. It is essential to public confidence in the tax
system that the Court avoid creating inequitable exceptions. This
is also essential to the confidence placed in this Court’s Commerce
Clause decisions. Yet the physical presence rule undermines that
necessary confidence by giving some online retailers an arbitrary
advantage over their competitors who collect state sales taxes.

															In the name of federalism and free markets, Quill does harm to both. The physical presence rule it
defines has limited States’ ability to seek long-term prosperity
and has prevented market participants from competing on an even
playing field.

															IV “ Although we approach the
reconsideration of our decisions with the utmost caution, stare
decisis is not an inexorable command.” Pearson v. Callahan , 555 U. S. 223, 233 (2009) (quoting State
Oil Co. v. Khan , 522 U. S. 3, 20 (1997);
alterations and internal quotation marks omitted). Here, stare
decisis can no longer support the Court’s prohibition of a
valid exercise of the States’ sovereign power.

															If 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. While it can be conceded that
Congress has the authority to change the physical presence rule,
Congress cannot change the constitutional default rule. It is
inconsistent with the Court’s proper role to ask Congress to
address a false constitutional premise of this Court’s own
creation. Courts have acted as the front line of review in this
limited sphere; and hence it is important that their principles be
accurate and logical, whether or not Congress can or will act in
response. It is currently the Court, and not Congress, that is
limiting the lawful prerogatives of the States.

															Further, the real world implementation of
Commerce Clause doctrines now makes it manifest that the physical
presence rule as defined by Quill must give way to the
“far-reaching systemic and structural changes in the economy” and
“many other societal dimensions” caused by the Cyber Age. Direct
Marketing , 575 U. S., at ___ (Kennedy, J., concurring)
(slip op., at 3). Though Quill was wrong on its own terms
when it was decided in 1992, since then the Internet revolution has
made its earlier error all the more egregious and harmful.

															The Quill Court did not have before it
the present realities of the interstate marketplace. In 1992, less
than 2 percent of Americans had Internet access. See Brief for
Retail Litigation Center, Inc., et al. as Amici Curiae 11, and n. 10. Today that number is about 89 percent. Ibid., and n. 11. When it decided Quill , the
Court could not have envisioned a world in which the world’s
largest retailer would be a remote seller, S. Li, Amazon Overtakes
Wal-Mart as Biggest Retailer, L. A. Times, July 24, 2015,
http://www.
latimes.com/business/la-fi-amazon-walmart-20150724-story.html (all
Internet materials as last visited June 18, 2018).

															The Internet’s prevalence and power have changed
the dynamics of the national economy. In 1992, mail-order sales in
the United States totaled $180 billion. 504 U. S., at 329
(opinion of White, J.). Last year, e-commerce retail sales alone
were estimated at $453.5 billion. Dept. of Commerce, U. S.
Census Bureau News, Quarterly Retail E-Commerce Sales: 4th Quarter
2017 (CB18–21, Feb. 16, 2018). Combined with traditional remote
sellers, the total exceeds half a trillion dollars. Sales Taxes
Report, at 9. Since the Department of Commerce first began tracking
e-commerce sales, those sales have increased tenfold from 0.8
percent to 8.9 percent of total retail sales in the United States.
Compare Dept. of Commerce, U. S. Census Bureau, Retail
E-Commerce Sales in Fourth Quarter 2000 (CB01–28, Feb. 16, 2001),
https://www.census.gov/mrts/ www/data/pdf/00Q4.pdf, with U. S.
Census Bureau News, Quarterly Retail E-Commerce Sales: 4th Quarter
2017. And it is likely that this percentage will increase. Last
year, e-commerce grew at four times the rate of traditional retail,
and it shows no sign of any slower pace. See ibid .

															This expansion has also increased the revenue
shortfall faced by States seeking to collect their sales and use
taxes. In 1992, it was estimated that the States were losing
between $694 million and $3 billion per year in sales tax revenues
as a result of the physical presence rule. Brief for Law Professors
et al. as Amici Curiae 11, n. 7. Now estimates
range from $8 to $33 billion. Sales Taxes Report, at 11–12; Brief
for Petitioner 34–35. The South Dakota Legislature has declared an
emergency, S. B. 106, §9, which again demonstrates urgency of
overturning the physical presence rule.

															The argument, moreover, that the physical
presence rule is clear and easy to apply is unsound. Attempts to
apply the physical presence rule to online retail sales are proving
unworkable. States are already confronting the complexities of
defining physical presence in the Cyber Age. For example,
Massachusetts proposed a regulation that would have defined
physical presence to include making apps available to be downloaded
by in-state residents and placing cookies on in-state residents’
web browsers. See 830 Code Mass. Regs. 64H.1.7 (2017). Ohio
recently adopted a similar standard. See Ohio Rev. Code Ann.
§5741.01(I)(2)(i) (Lexis Supp. 2018). Some States have enacted
so-called “click through” nexus statutes, which define nexus to
include out-of-state sellers that contract with in-state residents
who refer customers for compensation. See e.g., N. Y.
Tax Law Ann. §1101(b)(8)(vi) (West 2017); Brief for Tax Foundation
as Amicus Curiae 20–22 (listing 21 States with similar
statutes). Others still, like Colorado, have imposed notice and
reporting requirements on out-of-state retailers that fall just
short of actually collecting and remitting the tax. See Direct
Marketing , 814 F. 3d, at 1133 (discussing Colo. Rev. Stat.
§39–21–112(3.5)); Brief for Tax Foundation 24–26 (listing nine
States with similar statutes). Statutes of this sort are likely to
embroil courts in technical and arbitrary disputes about what
counts as physical presence.

															Reliance interests are a legitimate
consideration when the Court weighs adherence to an earlier but
flawed precedent. See Kimble v. Marvel Entertainment,
LLC , 576 U. S. ___, ___–___ (2015) (slip op., at 9–10).
But even on its own terms, the physical presence rule as defined by Quill is no longer a clear or easily applicable standard, so
arguments for reliance based on its clarity are misplaced. And,
importantly, stare decisis accommodates only “legitimate
reliance interest[s].” United States v. Ross , 456
U. S. 798, 824 (1982). Here, the tax distortion created by Quill exists in large part because consumers regularly fail
to comply with lawful use taxes. Some remote retailers go so far as
to advertise sales as tax free. See S. B. 106, §8(3); see also
Brief for Petitioner 55. A business “is in no position to found a
constitutional right on the practical opportunities for tax
avoidance.” Nelson v. Sears, Roebuck & Co. , 312
U. S. 359, 366 (1941).

															Respondents argue that “the physical presence
rule has permitted start-ups and small businesses to use the
Internet as a means to grow their companies and access a national
market, without exposing them to the daunting complexity and
business-development obstacles of nationwide sales tax collection.”
Brief for Respondents 29. These burdens may pose legitimate
concerns in some instances, particularly for small businesses that
make a small volume of sales to customers in many States. State
taxes differ, not only in the rate imposed but also in the
categories of goods that are taxed and, sometimes, the relevant
date of purchase. Eventually, software that is available at a
reasonable cost may make it easier for small businesses to cope
with these problems. Indeed, as the physical presence rule no
longer controls, those systems may well become available in a short
period of time, either from private providers or from state taxing
agencies themselves. And in all events, Congress may legislate to
address these problems if it deems it necessary and fit to do
so.

															In this case, however, South Dakota affords
small merchants a reasonable degree of protection. The law at issue
requires a merchant to collect the tax only if it does a
considerable amount of business in the State; the law is not
retroactive; and South Dakota is a party to the Streamlined Sales
and Use Tax Agreement, see infra at 23.

															Finally, other aspects of the Court’s Commerce
Clause doctrine can protect against any undue burden on interstate
commerce, taking into consideration the small businesses, startups,
or others who engage in commerce across state lines. For example,
the United States argues that tax-collection requirements should be
analyzed under the balancing framework of Pike v. Bruce
Church, Inc. , 397 U. S. 137. Others have argued that
retroactive liability risks a double tax burden in violation of the
Court’s apportionment jurisprudence because it would make both the
buyer and the seller legally liable for collecting and remitting
the tax on a transaction intended to be taxed only once. See Brief
for Law Professors et al. as Amici Curiae 7, n. 5.
Complex state tax systems could have the effect of discriminating
against interstate commerce. Concerns that complex state tax
systems could be a burden on small business are answered in part by
noting that, as discussed below, there are various plans already in
place to simplify collection; and since in-state businesses pay the
taxes as well, the risk of discrimination against out-of-state
sellers is avoided. And, if some small businesses with only de
minimis contacts seek relief from collection systems thought to
be a burden, those entities may still do so under other theories.
These issues are not before the Court in the instant case; but
their potential to arise in some later case cannot justify
retaining this artificial, anachronistic rule that deprives States
of vast revenues from major businesses.

															For these reasons, the Court concludes that the
physical presence rule of Quill is unsound and incorrect.
The Court’s decisions in Quill Corp. v. North Dakota ,
504 U. S. 298 (1992), and National Bellas Hess, Inc. v. Department of Revenue of Ill. , 386 U. S. 753 (1967),
should be, and now are, overruled.

															V

															In the absence of Quill and Bellas
Hess , 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. 430 U. S., at 279. “[S]uch a
nexus is established when the taxpayer [or collector] ‘avails
itself of the substantial privilege of carrying on business’ in
that jurisdiction.” Polar Tankers, Inc. v. City of
Valdez , 557 U. S. 1, 11 (2009).

															Here, the nexus is clearly sufficient based on
both the economic and virtual contacts respondents have with the
State. The Act applies only to sellers that deliver more than
$100,000 of goods or services into South Dakota or engage in 200 or
more separate transactions for the delivery of goods and services
into the State on an annual basis. S. B. 106, §1. This quantity of
business could not have occurred unless the seller availed itself
of the substantial privilege of carrying on business in South
Dakota. And respondents are large, national companies that
undoubtedly maintain an extensive virtual presence. Thus, the
substantial nexus requirement of Complete Auto is satisfied
in this case.

															The question remains whether some other
principle in the Court’s Commerce Clause doctrine might invalidate
the Act. Because the Quill physical presence rule was an
obvious barrier to the Act’s validity, these issues have not yet
been litigated or briefed, and so the Court need not resolve them
here. That said, South Dakota’s tax system includes several
features that appear designed to prevent discrimination against or
undue burdens upon interstate commerce. First, the Act applies a
safe harbor to those who transact only limited business in South
Dakota. Second, the Act ensures that no obligation to remit the
sales tax may be applied retroactively. S. B. 106, §5. Third, South
Dakota is one of more than 20 States that have adopted the
Streamlined Sales and Use Tax Agreement. This system standardizes
taxes to reduce administrative and compliance costs: It requires a
single, state level tax administration, uniform definitions of
products and services, simplified tax rate structures, and other
uniform rules. It also provides sellers access to sales tax
administration software paid for by the State. Sellers who choose
to use such software are immune from audit liability. See App.
26–27. Any remaining claims regarding the application of the
Commerce Clause in the absence of Quill and Bellas
Hess may be addressed in the first instance on remand.

															The judgment of the Supreme Court of South
Dakota is vacated, and the case is remanded for further proceedings
not inconsistent with this opinion.

															It is so ordered. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 17–494

															_________________

															SOUTH DAKOTA, PETITIONER v. WAYFAIR,
INC., et al.

															on writ of certiorari to the supreme court of
south dakota

															[June 21, 2018]

															Justice Thomas, concurring.

															Justice Byron White joined the majority opinion
in National Bellas Hess, Inc. v. Department of Revenue of
Ill. , 386 U. S. 753 (1967). Twenty-five years later, we
had the opportunity to overrule Bellas Hess in Quill
Corp. v. North Dakota , 504 U. S. 298 (1992). Only
Justice White voted to do so. See id. , at 322 (opinion
concurring in part and dissenting in part). I should have joined
his opinion. Today, I am slightly further removed from Quill than Justice White was from Bellas Hess . And like Justice
White, a quarter century of experience has convinced me that Bellas Hess and Quill “can no longer be rationally
justified.” 504 U. S., at 333. The same is true for this
Court’s entire negative Commerce Clause jurisprudence. See Comptroller of Treasury of Md. v. Wynne , 575
U. S. ___, ___ (2015) (Thomas, J., dissenting) (slip op., at
1). Although I adhered to that jurisprudence in Quill , it is
never too late to “surrende[r] former views to a better considered
position.” McGrath v. Kristensen , 340 U. S. 162,
178 (1950) (Jackson, J., concurring). I therefore join the Court’s
opinion. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 17–494

															_________________

															SOUTH DAKOTA, PETITIONER v. WAYFAIR,
INC., et al.

															on writ of certiorari to the supreme court of
south dakota

															[June 21, 2018 ]

															Justice Gorsuch, concurring.

															Our dormant commerce cases usually prevent
States from discriminating between in-state and out-of-state firms. National Bellas Hess, Inc. v. Department of Revenue of
Ill ., 386 U. S. 753 (1967), and Quill Corp. v. North Dakota , 504 U. S. 298 (1992), do just the
opposite. For years they have enforced a judicially created tax
break for out-of-state Internet and mail-order firms at the expense
of in-state brick-and-mortar rivals. See ante, at 12–13; Direct Marketing Assn. v. Brohl , 814 F. 3d, 1129,
1150 (CA10 2016) (Gorsuch, J. concurring). As Justice White
recognized 26 years ago, judges have no authority to construct a
discriminatory “tax shelter” like this. Quill, supra, at 329 (opinion concurring in part and dissenting in part). The
Court is right to correct the mistake and I am pleased to join its
opinion.

															My agreement with the Court’s discussion of the
history of our dormant commerce clause jurisprudence, however,
should not be mistaken for agreement with all aspects of the
doctrine. The Commerce Clause is found in Article I and authorizes Congress to regulate interstate commerce. Meanwhile our
dormant commerce cases suggest Article III courts may
invalidate state laws that offend no congressional statute. Whether
and how much of this can be squared with the text of the Commerce
Clause, justified by stare decisis , or defended as
misbranded products of federalism or antidiscrimination imperatives
flowing from Article IV’s Privileges and Immunities Clause are
questions for another day. See Energy & Environment Legal
Inst. v. Epel , 793 F.3d 1169, 1171 (CA10 2015); Comptroller of Treasury of Md. v. Wynne , 575
U. S. ___, ___–___ (2015) (Scalia, J., dissenting) (slip op.,
at 1–3); Camps Newfound/Owatonna, Inc. v. Town of
Harrison , 520 U. S. 564, 610–620 (1997) (Thomas, J.,
dissenting). Today we put Bellas Hess and Quill to
rest and rightly end the paradox of condemning interstate
discrimination in the national economy while promoting it
ourselves. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 17–494

															_________________

															SOUTH DAKOTA, PETITIONER v. WAYFAIR,
INC., et al.

															on writ of certiorari to the supreme court of
south dakota

															[June 21, 2018]

															Chief Justice Roberts, with whom Justice
Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.

															In National Bellas Hess, Inc. v. Department of Revenue of Ill. , 386 U. S. 753 (1967),
this Court held that, under the dormant Commerce Clause, a State
could not require retailers without a physical presence in that
State to collect taxes on the sale of goods to its residents. A
quarter century later, in Quill Corp. v. North
Dakota , 504 U. S. 298 (1992), this Court was invited to
overrule Bellas Hess but declined to do so. Another quarter
century has passed, and another State now asks us to abandon the
physical-presence rule. I would decline that invitation as
well.

															I agree that Bellas Hess was wrongly
decided, for many of the reasons given by the Court. The Court
argues in favor of overturning that decision because the
“Internet’s prevalence and power have changed the dynamics of the
national economy.” Ante, at 18. But that is the very reason
I oppose discarding the physical-presence rule. 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. 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, solely
to expiate a mistake it made over 50 years ago.

															I

															This Court “does not overturn its precedents
lightly.” Michigan v. Bay Mills Indian Community , 572
U. S. ___, ___ (2014) (slip op., at 15). Departing from the
doctrine of stare decisis is an “exceptional action”
demanding “special justification.” Arizona v. Rumsey ,
467 U. S. 203, 212 (1984). The bar is even higher in fields in
which Congress “exercises primary authority” and can, if it wishes,
override this Court’s decisions with contrary legislation. Bay
Mills , 572 U. S., at ___ (slip op., at 16) (tribal
sovereign immunity); see, e.g., Kimble v. Marvel
Entertainment, LLC , 576 U. S. ___, ___ (2015) (slip op.,
at 8) (statutory interpretation); Halliburton Co. v. Erica P. John Fund, Inc. , 573 U. S. ___, ___ (2014)
(slip op., at 12) (judicially created doctrine implementing a
judicially created cause of action). In such cases, we have said
that “the burden borne by the party advocating the abandonment of
an established precedent” is “greater” than usual. Patterson v. McLean Credit Union , 491 U. S. 164, 172 (1989). That
is so “even where the error is a matter of serious concern,
provided correction can be had by legislation.” Square D Co. v. Niagara Frontier Tariff Bureau, Inc. , 476 U. S. 409,
424 (1986) (quoting Burnet v. Coronado Oil & Gas
Co. , 285 U. S. 393, 406 (1932) (Brandeis, J.,
dissenting)).

															We have applied this heightened form of stare
decisis in the dormant Commerce Clause context. Under our
dormant Commerce Clause precedents, when Congress has not yet
legislated on a matter of interstate commerce, it is the province
of “the courts to formulate the rules.” Southern Pacific Co. v. Arizona ex rel. Sullivan , 325 U. S. 761, 770 (1945).
But because Congress “has plenary power to regulate commerce among
the States,” Quill , 504 U. S., at 305, it may at any
time replace such judicial rules with legislation of its own, see Prudential Ins. Co. v. Benjamin , 328 U. S. 408,
424–425 (1946).

															In Quill , this Court emphasized that the
decision to hew to the physical-presence rule on stare
decisis grounds was “made easier by the fact that the
underlying issue is not only one that Congress may be better
qualified to resolve, but also one that Congress has the ultimate
power to resolve.” 504 U. S., at 318 (footnote omitted). Even
assuming we had gone astray in Bellas Hess , the “very fact”
of Congress’s superior authority in this realm “g[a]ve us pause and
counsel[ed] withholding our hand.” Quill , 504 U. S., at
318 (alterations omitted). We postulated that “the better part of
both wisdom and valor [may be] to respect the judgment of the other
branches of the Government.” Id., at 319; see id., at
320 (Scalia, J., concurring in part and concurring in judgment)
(recognizing that stare decisis has “special force” in the
dormant Commerce Clause context due to Congress’s “final say over
regulation of interstate commerce”). The Court thus left it to
Congress “to decide whether, when, and to what extent the States
may burden interstate mail-order concerns with a duty to collect
use taxes.” Id., at 318 (majority opinion).

															II

															This is neither the first, nor the second, but
the third time this Court has been asked whether a State may
obligate sellers with no physical presence within its borders to
collect tax on sales to residents. Whatever salience the adage
“third time’s a charm” has in daily life, it is a poor guide to
Supreme Court decisionmaking. If stare decisis applied with
special force in Quill , it should be an even greater
impediment to overruling precedent now, particularly since this
Court in Quill “tossed [the ball] into Congress’s court, for
acceptance or not as that branch elects.” Kimble , 576
U. S., at ___ (slip op., at 8); see Quill , 504
U. S., at 318 (“Congress is now free to decide” the
circumstances in which “the States may burden interstate
. . . concerns with a duty to collect use taxes”).

															Congress has in fact been considering whether to
alter the rule established in Bellas Hess for some time. See
Addendum to Brief for Four United States Senators as Amici
Curiae 1–4 (compiling efforts by Congress between 2001 and 2017
to pass legislation respecting interstate sales tax collection);
Brief for Rep. Bob Goodlatte et al. as Amici Curiae 20–23 (Goodlatte Brief) (same). Three bills addressing the issue
are currently pending. See Marketplace Fairness Act of 2017, S.
976, 115th Cong., 1st Sess. (2017); Remote Transactions Parity Act
of 2017, H. R. 2193, 115th Cong., 1st Sess. (2017); No
Regulation Without Representation Act, H. R. 2887, 115th Cong., 1st
Sess. (2017). Nothing in today’s decision precludes Congress from
continuing to seek a legislative solution. But by suddenly changing
the ground rules, the Court may have waylaid Congress’s
consideration of the issue. Armed with today’s decision, state
officials can be expected to redirect their attention from working
with Congress on a national solution, to securing new tax revenue
from remote retailers. See, e.g., Brief for Sen. Ted Cruz
et al. as Amici Curiae 10–11 (“Overturning Quill would undo much of Con- gress’ work to find a workable national
compromise under the Commerce Clause.”).

															The Court proceeds with an inexplicable sense of
urgency. It asserts that the passage of time is only increasing the
need to take the extraordinary step of overruling Bellas
Hess and Quill : “Each year, the physical presence rule
becomes further removed from economic reality and results in
significant revenue losses to the States.” Ante , at 10. The
factual predicates for that assertion include a Government
Accountability Office (GAO) estimate that, under the
physical-presence rule, States lose billions of dollars annually in
sales tax revenue. See ante , at 2, 19 (citing GAO, Report to
Congressional Requesters: Sales Taxes, States Could Gain Revenue
from Expanded Authority, but Businesses Are Likely to Experience
Compliance Costs 5 (GAO–18–114, Nov. 2017) (Sales Taxes Report)).
But evidence in the same GAO report indicates that the pendulum is
swinging in the opposite direction, and has been for some time.
States and local governments are already able to collect
approximately 80 percent of the tax revenue that would be available
if there were no physical-presence rule. See Sales Taxes Report 8.
Among the top 100 Internet retailers that rate is between 87 and 96
percent. See id., at 41. Some companies, including the
online behemoth Amazon,[ 1 ]* now
voluntarily collect and remit sales tax in every State that
assesses one—even those in which they have no physical presence.
See id., at 10. To the extent the physical-presence rule is
harming States, the harm is apparently receding with time.

															The Court rests its decision to overrule Bellas Hess on the “present realities of the interstate
marketplace.” Ante, at 18. As the Court puts it, allowing
remote sellers to escape remitting a lawful tax is “unfair and
unjust.” Ante, at 16. “[U]nfair and unjust to
. . . competitors . . . who must remit the tax;
to the consumers who pay the tax; and to the States that seek fair
enforcement of the sales tax.” Ante, at 16. But “the present
realities of the interstate marketplace” include the possibility
that the marketplace itself could be affected by abandoning the
physical-presence rule. The Court’s focus on unfairness and
injustice does not appear to embrace consideration of that current
public policy concern.

															The Court, for example, breezily disregards the
costs that its decision will impose on retailers. Correctly
calculating and remitting sales taxes on all e-commerce sales will
likely prove baffling for many retailers. Over 10,000 jurisdictions
levy sales taxes, each with “different tax rates, different rules
governing tax-exempt goods and services, different product category
definitions, and different standards for determining whether an
out-of-state seller has a substantial presence” in the
jurisdiction. Sales Taxes Report 3. A few examples: New Jersey
knitters pay sales tax on yarn purchased for art projects, but not
on yarn earmarked for sweaters. See Brief for eBay, Inc.,
et al. as Amici Curiae 8, n. 3 (eBay Brief ).
Texas taxes sales of plain deodorant at 6.25 percent but imposes no
tax on deodorant with antiperspirant. See id. , at 7.
Illinois categorizes Twix and Snickers bars—chocolate-and-caramel
confections usually displayed side-by-side in the candy aisle—as
food and candy, respectively (Twix have flour; Snickers don’t), and
taxes them differently. See id., at 8; Brief for Etsy, Inc.,
as Amicus Curiae 14–17 (Etsy Brief ) (providing
additional illustrations).

															The burden will fall disproportionately on small
businesses. One vitalizing effect of the Internet has been
connecting small, even “micro” businesses to potential buyers
across the Nation. People starting a business selling their
embroidered pillowcases or carved decoys can offer their wares
throughout the country—but probably not if they have to figure out
the tax due on every sale. See Sales Taxes Report 22 (indicating
that “costs will likely increase the most for businesses that do
not have established legal teams, software systems, or outside
counsel to assist with compliance related questions”). And the
software said to facilitate compliance is still in its infancy, and
its capabilities and expense are subject to debate. See Etsy Brief
17–19 (describing the inadequacies of such software); eBay Brief
8–12 (same); Sales Taxes Report 16–20 (concluding that businesses
will incur “high” compliance costs). The Court’s decision today
will surely have the effect of dampening opportunities for commerce
in a broad range of new markets.

															A good reason to leave these matters to Congress
is that legislators may more directly consider the competing
interests at stake. Unlike this Court, Congress has the flexibility
to address these questions in a wide variety of ways. As we have
said in other dormant Commerce Clause cases, Congress “has the
capacity to investigate and analyze facts beyond anything the
Judiciary could match.” General Motors Corp. v. Tracy , 519 U. S. 278, 309 (1997); see Department of
Revenue of Ky. v. Davis , 553 U. S. 328, 356
(2008).

															Here, after investigation, Congress could
reasonably decide that current trends might sufficiently expand tax
revenues, obviating the need for an abrupt policy shift with
potentially adverse consequences for e-commerce. Or Congress might
decide that the benefits of allowing States to secure additional
tax revenue outweigh any foreseeable harm to e-commerce. Or
Congress might elect to accommodate these competing interests, by,
for example, allowing States to tax Internet sales by remote
retailers only if revenue from such sales exceeds some set amount
per year. See Goodlatte Brief 12–14 (providing varied examples of
how Congress could address sales tax collection). In any event,
Congress can focus directly on current policy concerns rather than
past legal mistakes. Congress can also provide a nuanced answer to
the troubling question whether any change will have retroactive
effect.

															An erroneous decision from this Court may well
have been an unintended factor contributing to the growth of
e-commerce. See, e.g., W. Taylor, Who’s Writing the Book on
Web Business? Fast Company (Oct. 31, 1996),
https: // www.fastcompany.com / 27309 / whos-writing-book-web-business.
The Court is of course correct that the Nation’s economy has
changed dramatically since the time that Bellas Hess and Quill roamed the earth. I fear the Court today is
compounding its past error by trying to fix it in a totally
different era. The Constitution gives Congress the power “[t]o
regulate Commerce . . . among the several States.”
Art. I, §8. I would let Congress decide whether to depart from
the physical-presence rule that has governed this area for half a
century.

															I respectfully dissent. Notes 1 * C. Isidore, Amazon To
Start Collecting State Sales Taxes Everywhere (Mar. 29, 2017), CNN
Tech,
http://money.cnn.com/2017/03/29/technology/amazon-sales-tax/
(all Internet materials as last visited June 19,
2018).


U.S. Supreme Court Moore v. Dempsey, 261 U.S.
86 (1923) Moore v. Dempsey No.199 Argued January 9,
1923 Decided February 19,
1923 261 U.S.
86 APPEAL FROM THE DISTRICT COURT OF
THE UNITED STATES FOR THE EASTERN DISTRICT OF
ARKANSAS Syllabus 1. Upon an appeal from an order of the District Court dismissing
a petition for habeas corpus upon demurrer, the allegations of fact
pleaded in the petition and admitted by the demurrer must be
accepted as true. P. 261 U. S.
87 .

															2. A trial for murder in a state court in which the accused are
hurried to conviction under mob domination without regard for their
rights is without due process of law and absolutely void. P. 261 U. S.
90 .

															3. In the absence of sufficient corrective process afforded by
the state courts, when persons held under a death sentence and
alleging facts showing that their conviction resulted from such a
trial, apply to the Federal District Court for habeas corpus, that
court must find whether the facts so alleged are true, and whether
they can be explained so far as to leave the state proceedings
undisturbed. P. 261 U. S.
91 . Reversed. APPEAL from an order of the District Court dismissing a petition
for habeas corpus upon demurrer. Page 261 U. S. 87 MR. JUSTICE HOLMES delivered the opinion of the Court.

															This is an appeal from an order of the District Court for the
Eastern District of Arkansas dismissing a writ of habeas corpus
upon demurrer, the presiding judge certifying that there was
probable cause for allowing the appeal. There were two cases
originally, but, by agreement, they were consolidated into one. The
appellants are five negroes who were convicted of murder in the
first degree and sentenced to death by the Court of the State of
Arkansas. The ground of the petition for the writ is that the
proceedings in the State Court, although a trial in form, were only
a form, and that the appellants were hurried to conviction under
the pressure of a mob without any regard for their rights and
without according to them due process of law.

															The case stated by the petition is as follows, and it will be
understood that, while we put it in narrative form, we are not
affirming the facts to be as stated, but only what we must take
them to be, as they are admitted by the demurrer. On the night of
September 30, 1919, a number of colored people assembled in their
church were attacked and fired upon by a body of white men, and in
the disturbance that followed, a white man was killed. The report
of the killing caused great excitement, and was followed by the
hunting down and shooting of many negroes and also by the killing
on October 1 of one Clinton Lee, a white man, for whose murder the
petitioners were indicted. They seem to have been arrested with
many others on the same day. The petitioners say that Lee must have
been killed by other whites, but that we leave on one side, as what
we have to deal with is not the petitioners' innocence Page 261 U. S. 88 or guilt, but solely the question whether their constitutional
rights have been preserved. They say that their meeting was to
employ counsel for protection against extortions practiced upon
them by the landowners, and that the landowners tried to prevent
their effort, but that again we pass by as not directly bearing
upon the trial. It should be mentioned, however, that O. S.
Bratton, a son of the counsel who is said to have been contemplated
and who took part in the argument here, arriving for consultation
on October 1, is said to have barely escaped being mobbed; that he
was arrested and confined during the month on a charge of murder,
and, on October 31, was indicted for barratry, but later in the day
was told that he would be discharged, but that he must leave
secretly by a closed automobile to take the train at West Helena.,
four miles away, to avoid being mobbed. It is alleged that the
judge of the Court in which the petitioners were tried facilitated
the departure and went with Bratton to see him safely off.

															A Committee of Seven was appointed by the Governor in regard to
what the committee called the "insurrection" in the county. The
newspapers daily published inflammatory articles. On the 7th, a
statement by one of the committee was made public to the effect
that the present trouble was

															"a deliberately planned insurrection of the negroes against the
whites, directed by an organization known as the 'Progressive
Farmers' and Household Union of America' established for the
purpose of banding negroes together for the killing of white
people."

															According to the statement, the organization was started by a
swindler to get money from the blacks.

															Shortly after the arrest of the petitioners, a mob marched to
the jail for the purpose of lynching them, but were prevented by
the presence of United States troops and the promise of some of the
Committee of Seven and other leading officials that, if the mob
would refrain, as Page 261 U. S. 89 the petition puts it, they would execute those found guilty in
the form of law. The Committee's own statement was that the reason
that the people refrained from mob violence was "that this
Committee gave our citizens their solemn promise that the law would
be carried out." According to affidavits of two white men and the
colored witnesses on whose testimony the petitioners were
convicted, produced by the petitioners since the last decision of
the Supreme Court hereafter mentioned, the Committee made good
their promise by calling colored witnesses and having them whipped
and tortured until they would say what was wanted, among them being
the two relied on to prove the petitioners' guilt. However this may
be, a grand jury of white men was organized on October 27 with one
of the Committee of Seven and, it is alleged, with many of a posse
organized to fight the blacks upon it, and, on the morning of the
29th, the indictment was returned. On November 3, the petitioners
were brought into Court, informed that a certain lawyer was
appointed their counsel, and were placed on trial before a white
jury -- blacks being systematically excluded from both grand and
petit juries. The Court and neighborhood were thronged with an
adverse crowd that threatened the most dangerous consequences to
anyone interfering with the desired result. The counsel did not
venture to demand delay or a change of venue, to challenge a
juryman or to ask for separate trials. He had had no preliminary
consultation with the accused, called no witnesses for the defence,
although they could have been produced, and did not put the
defendants on the stand. The trial lasted about three-quarters of
an hour, and in less than five minutes, the jury brought in a
verdict of guilty of murder in the first degree. According to the
allegations and affidavits, there never was a chance for the
petitioners to be acquitted; no juryman could have voted for an
acquittal and continued to live in Phillips County, and if Page 261 U. S. 90 any prisoner by any chance had been acquitted by a jury, he
could not have escaped the mob.

															The averments as to the prejudice by which the trial was
environed have some corroboration in appeals to the Governor, about
a year later, earnestly urging him not to interfere with the
execution of the petitioners. One came from five members of the
Committee of Seven, and stated, in addition to what has been quoted
heretofore, that "all our citizens are of the opinion that the law
should take its course." Another, from a part of the American
Legion, protests against a contemplated commutation of the sentence
of four of the petitioners and repeats that a

															"solemn promise was given by the leading citizens of the
community that, if the guilty parties were not lynched, and let the
law take its course, that justice would be done and the majesty of
the law upheld."

															A meeting of the Helena Rotary Club, attended by members
representing, as it said, seventy-five of the leading industrial
and commercial enterprises of Helena, passed a resolution approving
and supporting the action of the American Legion post. The Lions
Club of Helena, at a meeting attended by members said to represent
sixty of the leading industrial and commercial enterprises of the
city, passed a resolution to the same effect. In May of the same
year, a trial of six other negroes was coming on, and it was
represented to the Governor by the white citizens and officials of
Phillips County that, in all probability, those negroes would be
lynched. It is alleged that, in order to appease the mob spirit and
in a measure secure the safety of the six, the Governor fixed the
date for the execution of the petitioners at June 10, 1921, but
that the execution was stayed by proceedings in Court; we presume
the proceedings before the Chancellor to which we shall advert.

															In Frank v. Mangum, 237 U. S. 309 , 237 U. S. 335 ,
it was recognized, of course, that if, in fact, a trial is
dominated by a Page 261 U. S. 91 mob so that there is an actual interference with the course of
justice, there is a departure from due process of law, and
that,

															"if the State, supplying no corrective process, carries into
execution a judgment of death or imprisonment based upon a verdict
thus produced by mob domination, the State deprives the accused of
his life or liberty without due process of law."

															We assume in accordance with that case that the corrective
process supplied by the State may be so adequate that interference
by habeas corpus ought not to be allowed. It certainly is true that
mere mistakes of law in the course of a trial are not to be
corrected in that way. But if the case is that the whole proceeding
is a mask -- that counsel, jury and judge were swept to the fatal
end by an irresistible wave of public passion, and that the State
Courts failed to correct the wrong; neither perfection in the
machinery for correction nor the possibility that the trial court
and counsel saw no other way of avoiding an immediate outbreak of
the mob can prevent this Court from securing to the petitioners
their constitutional rights.

															In this case, a motion for a new trial on the ground alleged in
this petition was overruled, and, upon exceptions and appeal to the
Supreme Court, the judgment was affirmed. The Supreme Court said
that the complaint of discrimination against petitioners by the
exclusion of colored men from the jury came too late, and, by way
of answer to the objection that no fair trial could be had in the
circumstances, stated that it could not say "that this must
necessarily have been the case"; that eminent counsel was appointed
to defend the petitioners, that the trial was had according to law,
the jury correctly charged, and the testimony legally sufficient.
On June 8, 1921, two days before the date fixed for their
execution; a petition for habeas corp?s was presented to the
Chancellor, and he issued the writ and an injunction against the
execution of the petitioners; but the Supreme Court of the
State Page 261 U. S. 92 held that the Chancellor had no jurisdiction under the state
law, whatever might be the law of the United States. The present
petition perhaps was suggested by the language of the Court: "What
the result would be of an application to a Federal Court, we need
not inquire." It was presented to the District Court on September
21. We shall not say more concerning the corrective process
afforded to the petitioners than that it does not seem to us
sufficient to allow a Judge of the United States to escape the duty
of examining the facts for himself when, if true as alleged, they
make the trial absolutely void. We have confined the statement to
facts admitted by the demurrer. We will not say that they cannot be
met, but it appears to us unavoidable that the District Judge
should find whether the facts alleged are true and whether they can
be explained so far as to leave the state proceedings
undisturbed. Order reverse. The case to stand for hearing before the
District Court. Mr. Justice McREYNOLDS, dissenting.

															We are asked to overrule the judgment of the District Court
discharging a writ of habeas corpus by means of which five negroes
sought to escape electrocution for the murder of Clinton Lee. §
753, Rev.Stats. [ Footnote 1 ]
They were convicted and sentenced in the Circuit Court of Phillips
County, Arkansas, two years before the writ issued. The petition
for the writ was supported by affidavits of these five ignorant men
whose lives were at stake, the ex parte affidavits of
three other negroes who had pleaded guilty Page 261 U. S. 93 and were then confined in the penitentiary under sentences for
the same murder, and the affidavits of two white men -- low
villains according to their own admissions. It should be remembered
that to narrate the allegations of the petition is but to repeat
statements from these sources. Considering all the circumstances --
the course of the cause in the state courts and upon application
here for certiorari, etc. -- the District Court held the alleged
facts insufficient prima facie to show nullity of the
original judgment.

															The matter is one of gravity. If every man convicted of crime in
a state court may thereafter resort to the federal court and by
swearing, as advised, that certain allegations of fact tending to
impeach his trial are "true to the best of his knowledge and
belief," thereby obtain as of right further review, another way has
been added to a list already unfortunately long to prevent prompt
punishment. The delays incident to enforcement of our criminal laws
have become a national scandal and give serious alarm to those who
observe. Wrongly to decide the present cause probably will produce
very unfortunate consequences.

															In Frank v. Mangum, 237 U. S. 309 , 237 U. S. 325 , 237 U. S. 326 , 237 U. S. 327 , 237 U. S. 329 , 237 U. S. 335 ,
after great consideration, a majority of this Court approved the
doctrine which should be applied here. The doctrine is right and
wholesome. I cannot agree now to put it aside and substitute the
views expressed by the minority of the Court in that cause.

															Much of the opinion in the Frank case might be repeated
here if emphasis were necessary. It will suffice Page 261 U. S. 94 to quote a few paragraphs; but fully to understand, the whole
should be read.

															"In dealing with these contentions, we should have in mind the
nature and extent of the duty that is imposed upon a Federal court
on application for the writ of habeas corpus under § 753, Rev.Stat.
Under the terms of that section, in order to entitle the present
appellant to the relief sought, it must appear that he is held in
custody in violation of the Constitution of the United States. Rogers v. Peck, 199 U. S. 425 , 199 U. S.
434 . Moreover, if he is held in custody by reason of his
conviction upon a criminal charge before a court having plenary
jurisdiction over the subject matter or offense, the place where it
was committed, and the person of the prisoner, it results from the
nature of the writ itself that he cannot have relief on habeas
corpus. Mere errors in point of law, however serious, committed by
a criminal court in the exercise of its jurisdiction over a case
properly subject to its cognizance, cannot be reviewed by habeas
corpus. That writ cannot be employed as a substitute for the writ
of error."

															"As to the 'due process of law' that is required by the
Fourteenth Amendment, it is perfectly well settled that a criminal
prosecution in the courts of a State, based upon a law not in
itself repugnant to the Federal Constitution and conducted
according to the settled course of judicial proceedings as
established by the law of the State, so long as it includes notice,
and a hearing, or an opportunity to be heard, before a court of
competent jurisdiction, according to established modes of
procedure, is 'due process' in the constitutional sense."

															"It is, therefore, conceded by counsel for appellant that, in
the present case, we may not review irregularities or erroneous
rulings upon the trial, however serious, and that the writ of
habeas corpus will lie only in case the judgment under which the
prisoner is detained is shown to be absolutely Page 261 U. S. 95 void for want of jurisdiction in the court that pronounced it,
either because such jurisdiction was absent at the beginning or
because it was lost in the course of the proceedings."

															"But it would be clearly erroneous to confine the inquiry to the
proceedings and judgment of the trial court. The laws of the State
of Georgia (as will appear from decisions elsewhere cited), provide
for an appeal in criminal cases to the Supreme Court of that State
upon divers grounds, including such as those upon which it is here
asserted that the trial court was lacking in jurisdiction."

															"It follows as a logical consequence that where, as here, a
criminal prosecution has proceeded through all the courts of the
State, including the appellate as well as the trial court, the
result of the appellate review cannot be ignored when afterwards
the prisoner applies for his release on the ground of a deprivation
of Federal rights sufficient to oust the State of its jurisdiction
to proceed to judgment and execution against him. This is not a
mere matter of comity, as seems to be supposed. The rule stands
upon a much higher plane, for it arises out of the very nature and
ground of the inquiry into the proceedings of the state tribunals,
and touches closely upon the relations between the state and the
Federal governments. As was declared by this court in Ex parte
Royall, 117 U. S. 241 , 117 U. S.
252 -- applying in a habeas corpus case what was said in Covell v. Heyman, 111 U. S. 176 , 111 U. S.
182 , a case of conflict of jurisdiction: --"

															"The forbearance which courts of coordinate jurisdiction,
administered under a single system, exercise towards each other,
whereby conflicts are avoided, by avoiding interference with the
process of each other, is a principle of comity, with perhaps no
higher sanction than the utility which comes from concord; but
between state courts and those of the United States, it is
something more. It is a principle of right and of law, Page 261 U. S. 96 and, therefore, of necessity."

															" And see In re Tyler, Petitioner, 149 U. S.
164 , 149 U. S. 186 . . . ."

															"We, of course, agree that, if a trial is, in fact, dominated by
a mob, so that the jury is intimidated and the trial judge yields,
and so that there is an actual interference with the course of
justice, there is, in that court, a departure from due process of
law in the proper sense of that term. And if the State, supplying
no corrective process, carries into execution a judgment of death
or imprisonment based upon a verdict thus produced by mob
domination, the State deprives the accused of his life or liberty
without due process of law."

															"But the State may supply such corrective process as to it seems
proper. Georgia has adopted the familiar procedure of a motion for
a new trial followed by an appeal to its Supreme Court, not
confined to the mere record of conviction but going at large, and
upon evidence adduced outside of that record, into the question
whether the processes of justice have been interfered with in the
trial court. Repeated instances are reported of verdicts and
judgments set aside and new trials granted for disorder or mob
violence interfering with the prisoner's right to a fair trial. Myers v. State, 97 Georgia 76(5), 99; Collier v.
State, 115 Georgia 803."

															Let us consider with some detail what was presented to the court
below.

															There was the complete record of the cause in the state courts
-- trial and Supreme -- showing no irregularity. After indictment,
the defendants were arraigned for trial and eminent counsel
appointed to defend them. He cross-examined the witnesses, made
exceptions, and evidently was careful to preserve a full and
complete transcript of the proceedings. The trial was unusually
short, but there is nothing in the record to indicate that it was
illegally hastened. November 3, 1919, the jury returned a verdict
of "guilty;" November 11th the defendants were sentenced Page 261 U. S. 97 to be executed on December 27th; December 20th new counsel
chosen by them or their friends moved for a new trial and supported
the motion by affidavits of defendants and two other negroes who
declared they testified falsely because of torture. This motion
questioned the validity of the conviction upon the very grounds now
advanced -- torture, prejudice, mob domination, failure of counsel
to protect interests, etc. It is thus summarized by counsel for
appellants --

															"The grounds urged in the motion were the state of public
feeling against the defendants, the fact that the defendants and
witnesses were frequently subjected to torture for the purpose of
extracting from them admissions of guilt and to make them testify
against the defendants; that they were given no opportunity to
consult with their friends and seek assistance, or informed of the
charge against them until after their indictment; that they were
carried from jail to the courtroom without having been permitted to
see or talk with an attorney or any other person in regard to their
defense; that the court appointed counsel for the defendants
without consulting them, or giving them an opportunity to employ
their own counsel; that the state of public feeling was such that
they could not have a fair jury; that the trial proceeded without
their consulting with their counsel or any witnesses, or being
given an opportunity to obtain witnesses; that they were never in
court before and were entirely ignorant of what they could do to
defend themselves; that the trial from beginning to end occupied
three-fourths of an hour and the verdict was returned in from three
to six minutes. Four of the defendants say that they never had a
copy of the indictment served upon them, one had it only
forty-eight hours before the trial."

															"Another ground was that, under the practice which prevailed in
the State, only white men were summoned Page 261 U. S. 98 to sit on the grand jury or the jury, and that, by this
discrimination, the defendants were deprived of their rights under
the Constitution of the United States; that they had no notice or
knowledge of what steps they should take to raise this point before
the trial; that the verdict is contrary to the law and
evidence."

															"To this motion are attached two affidavits, one of Alf Banks,
Jr., and another of William Wordlaw who testified to the fact that
they were whipped, placed in the electric chair and strangled by
something put in their noses to make them testify. These defendants
did not suffer from what was done to these witnesses, as they did
not testify at their trial, but their affidavits confirm the
testimony of the others as to the treatment to which the Negroes in
confinement were exposed."

															A new trial having been denied, an appeal was granted to the
State Supreme Court and sixty days allowed for preparing bill of
exceptions; March 22, 1920, this appeal was argued orally and by
briefs; March 29th the court announced its opinion, reviewed the
proceedings and affirmed the judgment. Hicks v. State, 143
Ark. 158. A petition for rehearing was presented April 19th and
overruled April 26th.

															A petition for certiorari filed in this Court May 24, 1920, with
the record of proceedings in the state courts, set forth in detail
the very grounds of complaint now before us. It was presented
October 5th, denied October 11th, 1920.

															April 29, 1921, the Governor directed execution of the
defendants on June 10th. June 8th, the Chancery Court of Pulaski
County granted them a writ of habeas corpus; on June 20th, the
State Supreme Court held that the Chancery Court lacked
jurisdiction and prohibited further proceedings. State v.
Martineau, 149 Ark. 237. August 4th, a justice of this Court
denied writ of error. Thereupon, the Governor fixed September 23rd
for execution. Page 261 U. S. 99 On September 21st, the present habeas corpus proceeding began,
and since then, the matter has been in the courts.

															It appears that, during September, 1919, bloody conflicts took
place between whites and blacks in Phillips County, Arkansas --
"The Elaine Riot." Many negroes and some whites were killed. A
committee of seven prominent white men was chosen to direct
operations in putting down the so-called insurrection and conduct
investigation with a view of discovering and punishing the guilty.
This committee published a statement, certainly not intemperate,
about October 7th, wherein they stated the "ignorance and
superstition of a race of children" was played upon for gain by a
black swindler, and told of an organization to attack the whites.
It urged all persons, white or black, in possession of information
which might assist in discovering those responsible for the
insurrection, to confer with it upon the understanding that such
action would be for the public safety, and informant's identity
carefully safeguarded. I find nothing in this statement which
counsels lawlessness or indicates more than an honest effort by
upstanding men to meet the grave situation.

															It is true that, in October, 1920, almost a year after the trial
here under consideration, the American Legion post at Helena --
approximately three hundred ex service white men -- made protest to
the Governor against commutation of the sentences. It is copied in
the margin as printed in the record. [ Footnote 2 ] The Helena Rotary Club, November 10, Page 261 U. S. 100 1920, expressed emphatic approval of this protest, and the Lions
Club took like action. These resolutions are not violent, and
certainly do not establish the theory that defendants' conviction
in November, 1919 -- a year before was an empty form and utterly
void; nor, as the Page 261 U. S. 101 petition recklessly alleges, do they

															"further and conclusively show the existence of the mob spirit
prevailing among all the white people of Phillips County at the
time petitioners and the other defendants were put through the form
of trials and show that the only reason the mob stayed its hand,
the only reason they were not lynched, was that the leading
citizens of the community made a solemn promise to the mob that
they should be executed in the form of law."

															The Supreme Court of the State twice reversed the conviction of
other negroes charged with committing murder during the disorders
of September, 1919. The first opinion came down on the very day
upon which the judgment against petitioners was affirmed, and held
the verdict so defective that no judgment could be entered upon it.
The second directed a reversal because the trial court had refused
to hear evidence on the motion to set aside the regular panel of
the petit jury. Banks v. State, 143 Ark. 154; Ware v.
State, 146 Ark. 321. The Supreme Court, as well as the trial
court, considered the claims of petitioners set forth by trusted
counsel in the motion for a new trial. This Court denied a petition
for certiorari wherein the facts and circumstances now relied upon
were set out with great detail. Years have passed since they were
convicted of an atrocious crime. Certainly they have not been
rushed towards the death chair; on the contrary, there has been
long delay, and some impatience over the result is not unnatural.
The recent execution of assassins in England within thirty days of
the crime, affords a striking contrast.

															With all those things before him, I am unable to say that the
District Judge, acquainted with local conditions, erred when he
held the petition for the writ of habeas corpus insufficient. His
duty was to consider the whole case and decide whether there
appeared to be substantial reason for further proceedings. Page 261 U. S. 102 Under the disclosed circumstances, I cannot agree that the
solemn adjudications by courts of a great State, which this Court
has refused to review, can be successfully impeached by the mere ex parte affidavits made upon information and belief of
ignorant convicts joined by two white men -- confessedly atrocious
criminals. The fact that petitioners are poor an ignorant and black
naturally arouses sympathy; but that does not release us from
enforcing principles which are essential to the orderly operation
of our federal system.

															I am authorized to say that MR. JUSTICE SUTHERLAND concurs in
this dissent.

															[ Footnote 1 ]

															"The writ of habeas corpus shall in no case extend to a prisoner
in jail, unless where he is in custody under or by color of the
authority of the United States, or is committed for trial before
some court thereof; or is in custody for an act done or omitted in
pursuance of a law of the United States, or of an order, process,
or decree of a court or judge thereof; or is in custody in
violation of the Constitution or of a law or treaty of the United
States; or, being a subject or citizen of a foreign state, and
domiciled therein, is in custody for an act done or omitted under
any alleged right, title, authority, privilege, protection, or
exemption claimed under the commission, or order, or sanction of
any foreign state, or under color thereof, the validity and effect
whereof depend upon the law of nations; or unless it is necessary
to bring the prisoner into court to testify."

															[ Footnote 2 ]

															" RESOLUTION" "It has been brought to the attention of the Richard L. Kitchens
Post No. 31, American Legion, Helena, Arkansas, that the Governor
is contemplating commuting the sentence of four of the negroes who
are now under death sentences for their participation in the Elaine
Riot, to lesser sentences, and we, the members of this Post feel
that any action toward this end by the Governor would do more harm
in the community and breed lawlessness, as well as disregard for
constituted authority, as at the time of this race riot the members
of this Post were called upon to go to Hoop Spur and Elaine to
protect life and property, and in compliance with this request,
there were two American Legion members killed and one seriously
injured, besides the other nonmembers who also perished, and when
the guilty negroes were apprehended, a solemn promise was given by
the leading citizens of the community that, if these guilty parties
were not lynched, and let the law take its course, that justice
would be done and the majesty of the law upheld."

															"The twelve negroes now under sentence of death, but whose
sentences are suspended -- account of court procedure, and six of
these negro cases have -- taken to the Supreme Court of the United
States, which court declined to review. The other six cases, whose
original trials were reversed and new trials given them, were
convicted, and their cases were appealed to the Supreme Court of
the State and attorneys of their own selection were permitted to
handle their cases."

															"Now therefore be it resolved by this Post assembled on this the
19th day of October, 1920, that we most earnestly protest against
the commutation of any of the sentences of these twelve negroes
convicted of murder in the Elaine riot of October, 1919, their
having received a fair trial and -- proven guilty, and the leniency
of the court was shown in the balance of the cases tried, these
being the ring leaders and guilty murderers, and that law and order
will be vindicated and a solemn promise kept."

															"Be it further resolved that a committee of four be appointed by
the Post Commander. This Committee is hereby empowered to represent
this Post at a conference, or several conferences, with the
Governor of Arkansas and to take such steps as they may deem
necessary to carry out the wishes of this resolution and leaving
nothing undone to have these sentences carried out. This committee
to report in full to the next meeting of this Post."

															"Passed unanimously 8:30 P.M. October 19, 1920, basement of the
Episcopal Church, Helena, Arkansas."