Quill Corp. v. Heitkamp, 504 U.S. 298 (1992)
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in part and concurring in the judgment.
National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U.S. 753 (1967), held that the Due Process and Commerce Clauses of the Constitution prohibit a State from imposing the duty of use tax collection and payment upon a seller whose only connection with the State is through common carrier or the United States mail. I agree with the Court that the Due Process Clause holding of Bellas Hess should be overruled. Even before Bellas Hess, we had held, correctly I think, that state regulatory jurisdiction could be asserted on the basis of contacts with the State through the United States mail. See Travelers Health Assn. v. Virginia ex rel. State Corp. Comm’n, 339 U.S. 643, 646-650 (1950) (Blue Sky laws). It is difficult to discern any principled basis for distinguishing between jurisdiction to regulate and jurisdiction to tax. As an original matter, it might have been possible to distinguish between jurisdiction to tax and jurisdiction to compel collection of taxes as agent for the State, but we have rejected that. National Geographic Soc. v. California Bd. of Equalization, 430 U.S. 551, 558 (1977); Scripto, Inc. v. Carson, 362 U.S. 207, 211 (1960). I agree with the Court, moreover, that abandonment of Bellas Hess’s due process holding is compelled by reasoning "[c]omparable" to that contained in our post-1967 cases dealing with state jurisdiction to adjudicate. Ante at 308. I do not understand this to mean that the due process standards for adjudicative jurisdiction and those for legislative (or prescriptive) jurisdiction are necessarily identical; and on that basis, I join Parts I, II, and III of the Court’s opinion. Compare Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987), with American Oil Co. v. Neill, 380 U.S. 451 (1965).
I also agree that the Commerce Clause holding of Bellas Hess should not be overruled. Unlike the Court, however, I would not revisit the merits of that holding, but would adhere to it on the basis of stare decisis.American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 204 (1990) (SCALIA, J., concurring in judgment). Congress has the final say over regulation of interstate commerce, and it can change the rule of Bellas Hess by simply saying so. We have long recognized that the doctrine of stare decisis has "special force" where "Congress remains free to alter what we have done." Patterson v. McLean Credit Union, 491 U.S. 164, 172-173 (1989). See also Hilton v. South Carolina Pub. Railways Comm’n, 502 U.S. 197, 202 (1991); Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977). Moreover, the demands of the doctrine are "at their acme . . . where reliance interests are involved," Payne v. Tennessee, 501 U.S. 808, 828 (1991). As the Court notes, "the Bellas Hess rule has engendered substantial reliance, and has become part of the basic framework of a sizeable industry," ante at 317.
I do not share JUSTICE WHITE’s view that we may disregard these reliance interests because it has become unreasonable to rely upon Bellas Hess, post at 331-332. Even assuming for the sake of argument (I do not consider the point) that later decisions in related areas are inconsistent with the principles upon which Bellas Hess rested, we have never acknowledged that, but have instead carefully distinguished the case on its facts. See, e.g., D.H. Holmes Co. v. McNamara, 486 U.S. 24, 33 (1988); National Geographic Soc., supra, 430 U.S. at 559. It seems to me important that we retain our ability -- and, what comes to the same thing, that we maintain public confidence in our ability -- sometimes to adopt new principles for the resolution of new issues without abandoning clear holdings of the past that those principles contradict. We seemed to be doing that in this area. Having affirmatively suggested that the "physical presence" rule could be reconciled with our new jurisprudence, we ought not visit economic hardship upon those who took us at our word. We have recently told lower courts that,
[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [they] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). It is strangely incompatible with this to demand that private parties anticipate our overrulings. It is my view, in short, that reliance upon a square, unabandoned holding of the Supreme Court is always justifiable reliance (though reliance alone may not always carry the day). Finally, the "physical presence" rule established in Bellas Hess is not "unworkable," Patterson, supra, 491 U.S. at 173, to the contrary, whatever else may be the substantive pros and cons of the rule, the "bright-1ine" regime that it establishes, see ante at 314, is unqualifiedly in its favor. JUSTICE WHITE’s concern that reaffirmance of Bellas Hess will lead to a flurry of litigation over the meaning of "physical presence," see post at 331, seems to me contradicted by 25 years of experience under the decision.
For these reasons, I concur in the judgment of the Court and join Parts I, II, and III of its opinion.
1. See, e.g., P. Hartman, Federal Limitations on State and Local Taxation § 10.8 (1981); Hartman, Collection of Use Tax on Out-of-State Mail-Order Sales, 39 Vand.L.Rev. 993, 1006-1015 (1986); Hellerstein, Significant Sales and Use Tax Developments During the Past Half Century, 39 Vand.L.Rev. 961, 984-985 (1986); McCray, Overturning Bellas Hess: Due Process Considerations, 1985 B.Y.U.L.Rev. 265, 288-290; Rothfeld, Mail Order Sales and State Jurisdiction to Tax, 53 Tax Notes 1405, 1414-1418 (1991).
2. Similarly, I am unconvinced by the majority’s reliance on subsequent decisions that have cited Bellas Hess.See ante at 311. In D.H. Holmes Co. v. McNamara, 486 U.S. 24, 33 (1988), for example, we distinguished Bellas Hess on the basis of the company’s
significant economic presence in Louisiana, its many connections with the State, and the direct benefits it receives from Louisiana in conducting its business.
We then went on to note that the situation presented was much more analogous to that in National Geographic Society v. California Bd. of Equalization, 430 U.S. 551 (1977). See id., 486 U.S. at 33-34. In Commonwealth Edison Co. v. Montana, 453 U.S. 609, 626 (1981), the Court cited Bellas Hess not to revalidate the physical presence requirement, but rather to establish that a "nexus" must exist to justify imposition of a state tax. And finally, in Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 437 (1980), the Court cited Bellas Hess for the due process requirements necessary to sustain a tax. In my view, these citations hardly signal the continuing support of Bellas Hess that the majority seems to find persuasive.
3. Instead of remanding for consideration of whether Quill’s ownership of software constitutes sufficient physical presence under its new Commerce Clause nexus requirement, the majority concludes as a matter of law that it does not. See ante,n. 8. In so doing, the majority rebuffs North Dakota’s challenge without setting out any clear standard for what meets the Commerce Clause physical presence nexus standard and without affording the State an opportunity on remand to attempt to develop facts or otherwise to argue that Quill’s presence is constitutionally sufficient.
4. For the federal rule, see Flora v. United States, 357 U.S. 63 (1958); see generally J. Mertens, Law of Federal Income Taxation § 58A.05 (1992). North Dakota appears to follow the same principle. See First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 586 (N.D.1984) (citing 72 Am.Jur.2d § 1087).