Harvard Law Review Harvard Law Review Harvard Law Review

Dormant Commerce Clause

South Dakota v. Wayfair, Inc.

Judicial junk, the Court has long thought, is easier to scrap when the erroneous precedent cannot be fixed by Congress, as in constitutional cases.1×1. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405–10 (1932) (Brandeis, J., dissenting); Lee Epstein, William M. Landes & Adam Liptak, The Decision to Depart (or Not) from Constitutional Precedent: An Empirical Study of the Roberts Court, 90 N.Y.U. L. Rev. 1115, 1116 (2015) (“[Justice Brandeis’s] dissenting opinion . . . now has the status of black letter law.”). On the flip side, whenever a bad precedent can be corrected by Congress, stare decisis applies with “special force.”2×2. See Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1989). The Court, following Justice Brandeis, usually articulates the rule as distinguishing between “constitutional” and “statutory” precedents. See, e.g., id. But the distinction is occasionally said to be between “constitutional” and “nonconstitutional cases.” See, e.g., Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962) (plurality opinion). Nomenclature aside, the Court has — until now — adhered to Justice Brandeis’s key insight that the important factor is whether or not the mistake may be legislatively corrected. Last Term, in South Dakota v. Wayfair, Inc.,3×3. 138 S. Ct. 2080 (2018). the Court tinkered with this thinking in overruling an outdated dormant commerce clause precedent. Dormant commerce clause decisions technically produce constitutional holdings, but Congress may override them at will.4×4. See Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 421–27 (1946). Under the usual logic of stare decisis, it should take special force to dislodge such precedents. But Wayfair applied the weakened stare decisis of constitutional cases, asserting that the Court must “address a false constitutional premise . . . . whether or not Congress can or will act.”5×5. Wayfair, 138 S. Ct. at 2096–97.

Emerging from Wayfair is an odd and ominous development in stare decisis doctrine. Odd, because it turns on a formal classification instead of on Congress’s practical ability to fix the problem. Ominous, because the Court’s logic leads far past the dormant commerce clause. Wayfair grants only feeble stare decisis to precedents that set a “constitutional default rule,”6×6. Id. at 2096 (“While . . . Congress has the authority to change the physical presence rule, Congress cannot change the constitutional default rule.”). meaning constitutional decisions that allow for legislative adjustment or override. This new stare decisis analysis makes other precedents setting constitutional default rules more vulnerable — including, perhaps, mainstays of criminal procedure like Miranda v. Arizona7×7. 384 U.S. 436 (1966). and Mapp v. Ohio.8×8. 367 U.S. 643 (1961).

Since its 1967 decision in National Bellas Hess, Inc. v. Department of Revenue,9×9. 386 U.S. 753 (1967). the Court has held that, under the “dormant” or “negative” implication of the Commerce Clause,10×10. The dormant or negative commerce clause is a judicial derivation from the Commerce Clause “prohibiting States from discriminating against or imposing excessive burdens on interstate commerce without congressional approval,” which “strikes at one of the chief evils that led to the adoption of the Constitution, namely, state tariffs and other laws that burdened interstate commerce.” Comptroller of the Treasury of Md. v. Wynne, 135 S. Ct. 1787, 1794 (2015). states may not compel remote sellers with no physical presence in the state to collect and remit sales taxes.11×11. See Bellas Hess, 386 U.S. at 759–60. In Quill Corp. v. North Dakota,12×12. 504 U.S. 298 (1992). the Court refused to overrule the “bright-line, physical-presence requirement” of Bellas Hess, leaning heavily on stare decisis.13×13. Id. at 317–18. Three Justices joined a concurrence explaining that their decision rested solely “on the basis of stare decisis.” Id. at 320 (Scalia, J., concurring in part and concurring in the judgment). So the physical presence test remained the law of the land while the internet conquered the earth. Justice Kennedy had joined the Quill majority and Justice Scalia’s concurring opinion emphasizing stare decisis, but by 2015 he had second thoughts. Writing separately in Direct Marketing Ass’n v. Brohl,14×14. 135 S. Ct. 1124 (2015). Justice Kennedy acknowledged that “[t]he Internet has caused far-reaching systemic and structural changes in the economy” and therefore “Quill now harms States to a degree far greater than could have been anticipated earlier.”15×15. Id. at 1135 (Kennedy, J., concurring). He concluded with the wish that “[t]he legal system should find an appropriate case for this Court to reexamine Quill and Bellas Hess.”16×16. Id.

Seldom has a concurring opinion signed by a lone Justice prompted a state to officially declare an emergency. Yet in 2016, in response to Justice Kennedy’s overture, the South Dakota legislature passed a law, S.B. 106, “to provide for the collection of sales taxes from certain remote sellers . . . and to declare an emergency.”17×17. 2016 S.D. Sess. Laws ch. 70 pmbl. 217 (codified at S.D. Codified Laws § 10-64 (2017)). It required every remote seller to collect and remit sales tax if the seller’s business in South Dakota comprised either a “gross revenue” greater than $100,000 or at least 200 “separate transactions” within one calendar year.18×18. Id. § 1. Significantly, the law did not apply retroactively.19×19. Id. § 5. The “emergency” declaration was necessary to give the law immediate effect, for the purpose of “permitting the most expeditious possible review of the constitutionality of this law” by the U.S. Supreme Court.20×20. Id. § 8(8). As Justice Alito put it, the “South Dakota law [was] obviously a test case.”21×21. Transcript of Oral Argument at 27, Wayfair, 138 S. Ct. 2080 (No. 17-494), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/17-494_7lho.pdf [https://perma.cc/8HYH-VU8N].

Expeditiously, a group of remote sellers challenged the law. After being sued by South Dakota for refusing to register for the newly required sales tax license, Wayfair, Inc., Overstock.com, Inc., and Newegg, Inc. moved for summary judgment in South Dakota circuit court on the grounds that S.B. 106 was unconstitutional under Quill and Bellas Hess — a point South Dakota conceded, indicating that it was seeking review by the U.S. Supreme Court to overturn Quill.22×22. State v. Wayfair Inc., 2017 SD 56, ¶¶ 9–11, 901 N.W.2d 754, 759–60. Accordingly, the South Dakota circuit court granted the motion for summary judgment and South Dakota appealed to the state’s highest court.23×23. Id. ¶ 12, 901 N.W.2d at 760. The South Dakota Supreme Court unanimously affirmed, recognizing that South Dakota’s “arguments on the merits” may be “persuasive” but “Quill remains the controlling precedent.”24×24. Id. ¶ 18, 901 N.W.2d at 761. See generally Recent Case, State v. Wayfair Inc., 2017 SD 56, 901 N.W.2d 754 (S.D. 2017), 131 Harv. L. Rev. 2089 (2018).

The U.S. Supreme Court vacated and remanded.25×25. Wayfair, 138 S. Ct. at 2100. Writing for the Court one last time, Justice Kennedy26×26. Justices Thomas, Ginsburg, Alito, and Gorsuch joined Justice Kennedy’s opinion. pilloried Quill’s physical presence rule as “arbitrary, formalistic,” “anachronistic,” and “unfair and unjust” to both states and brick-and-mortar retailers.27×27. Wayfair, 138 S. Ct. at 2092, 2095. After all, the rationale of Quill was that remote sellers lacked a sufficiently “substantial nexus” with the state to justify imposing a duty of tax collection.28×28. Quill Corp. v. North Dakota, 504 U.S. 298, 311 (1992) (quoting Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977)). This was wrong even in the mail-order catalog days of 1967 and 1992, but “the Internet revolution has made [Quill’s] earlier error all the more egregious and harmful.”29×29. Wayfair, 138 S. Ct. at 2097; see also id. at 2092. The rule deprived the states of billions of dollars, since they could not force remote sellers to collect the tax and consumers hardly ever paid it on their own.30×30. Id. at 2088 (“[C]onsumer compliance rates are notoriously low.”). Quill “serve[d] as a judicially created tax shelter” for remote retailers who do a great deal of business online.31×31. Id. at 2094.

Satisfied that Bellas Hess and Quill were wrongly decided, the Court then jumped the hurdle of stare decisis. The Quill Court had feared upsetting reliance interests.32×32. Quill, 504 U.S. at 317 (“Bellas Hess . . . has engendered substantial reliance and has become part of the basic framework of a sizable industry.”). Wayfair shrugged off this concern, noting that “stare decisis accommodates only ‘legitimate reliance interest[s]’”; by contrast, reliance on the physical presence rule was largely due to consumers evading their use-tax obligations.33×33. Wayfair, 138 S. Ct. at 2098 (alteration in original) (quoting United States v. Ross, 456 U.S. 798, 824 (1982)). Quill had also appealed to Congress’s ultimate authority over interstate commerce as a reason to abide by a precedent, even if wrongly decided.34×34. See Quill, 504 U.S. at 318–19; id. at 320 (Scalia, J., concurring in part and concurring in the judgment) (“Congress . . . can change the rule of Bellas Hess by simply saying so.”). But Wayfair denied that Congress’s ability to change the law was a proper consideration:

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.35×35. Wayfair, 138 S. Ct. at 2096–97.

Having dispensed with the physical presence rule, the Court remanded the case to the South Dakota courts to determine in the first instance “whether some other principle in the Court’s Commerce Clause doctrine might invalidate the Act.”36×36. Id. at 2099. But the Court listed “several features [of South Dakota law] that appear[ed] designed to prevent discrimination against or undue burdens upon interstate commerce.” Id.

Justices Thomas and Gorsuch each filed concurring opinions. Justice Thomas wistfully likened himself to Justice White — who voted for Bellas Hess but against Quill a quarter-century later — and confessed that he “should have joined [Justice White’s dissenting] opinion.”37×37. Id. at 2100 (Thomas, J., concurring). Justice Thomas added that the “Court’s entire negative Commerce Clause jurisprudence” is wrong and should be abandoned.38×38. Id. Justice Gorsuch also wrote separately to express skepticism of the Court’s dormant commerce clause jurisprudence, raising “questions for another day” of whether the doctrine “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.”39×39. Id. at 2100–01 (Gorsuch, J., concurring).

Chief Justice Roberts dissented.40×40. Justices Breyer, Sotomayor, and Kagan joined the Chief Justice’s dissent. Surprisingly, the dissenting Justices “agree[d] that Bellas Hess was wrongly decided, for many of the reasons given by the Court.”41×41. Wayfair, 138 S. Ct. at 2101 (Roberts, C.J., dissenting). The dispute between the majority and the dissent turned entirely on the principles and application of stare decisis. Chief Justice Roberts argued that whether or how to reverse Quill should be left to Congress, which “has the flexibility to address these questions in a wide variety of ways” and “can focus directly on current policy concerns rather than past legal mistakes.”42×42. Id. at 2104. He also pointed to the “baffling” burdens of compliance with the idiosyncratic tax codes of “[o]ver 10,000 jurisdictions,” particularly for small businesses, and doubted that new “software” — the majority’s proposed solution to this mess43×43. Id. at 2098 (majority opinion) (“Eventually, software that is available at a reasonable cost may make it easier for small businesses to cope with these problems.”). — would soon solve the problem.44×44. Id. at 2103–04 (Roberts, C.J., dissenting). In Bellas Hess, the Court reasoned that the dormant commerce clause protects interstate business from being “entangle[d] . . . in a virtual welter of complicated obligations to local jurisdictions.” Nat’l Bellas Hess, Inc. v. Dep’t of Revenue, 386 U.S. 753, 759–60 (1967). The dissent replied that the Court “vastly underestimate[d] the skill of contemporary man and his machines.” Id. at 766 (Fortas, J., dissenting). The dispute in Wayfair over whether software is up to the task effectively reprised the old debate from Bellas Hess, only this time couched as part of the stare decisis inquiry’s concern for reliance interests rather than as a matter of dormant commerce clause doctrine. While Wayfair acknowledged that “[c]omplex state tax systems could have the effect of discriminating against interstate commerce,” 138 S. Ct. at 2099, the Court remarked that “[t]he physical presence rule is a poor proxy” for an inquiry into any actual burdens imposed on interstate commerce, id. at 2093.

Chief Justice Roberts emphasized that a “heightened form of stare decisis45×45. Wayfair, 138 S. Ct. at 2102 (Roberts, C.J., dissenting). applies when “Congress . . . can, if it wishes, override this Court’s decisions with contrary legislation.”46×46. Id. at 2101 (first citing Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2036 (2014) (tribal sovereign immunity); then citing Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (statutory interpretation); and then citing Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398, 2411 (2014) (judicially created doctrine implementing a judicially created cause of action)). In Quill, the Chief Justice noted, the Court had taken to heart that “Congress may be better qualified” and “has the ultimate power to resolve” the question47×47. Id. at 2102 (quoting Quill Corp. v. North Dakota, 504 U.S. 279, 318 (1992)). while Justice Scalia had “recogniz[ed] that stare decisis has ‘special force’ in the dormant Commerce Clause context due to Congress’s ‘final say over regulation of interstate commerce.’”48×48. Id. (quoting Quill, 504 U.S. at 320 (Scalia, J., concurring in part and concurring in the judgment)). Moreover, “[i]f stare decisis applied with special force in Quill, it should be an even greater impediment” afterward since Quill effectively “tossed [the ball] into Congress’s court.”49×49. Id. (alteration in original) (quoting Kimble, 135 S. Ct. at 2409); cf. Bay Mills, 134 S. Ct. at 2039 n.12 (“When we inform Congress that it has primary responsibility over a sphere of law, and invite Congress to consider a specific issue within that sphere, we cannot deem irrelevant how Congress responds.”). Because the Court invited Congress to act and then “suddenly chang[ed] the ground rules, the Court may have waylaid Congress’s consideration of the issue.”50×50. Wayfair, 138 S. Ct. at 2102–03 (Roberts, C.J., dissenting).

In Wayfair, the Court applied the flimsier form of stare decisis to a precedent that could have been overruled by Congress. It did so in the context of a dormant commerce clause case, but Wayfair’s logic extends to all constitutional default rules — that is, constitutional decisions that Congress remains free to change. Not only does Wayfair deviate from the Court’s decades-old stare decisis analysis, it also imperils other precedents that set constitutional default rules.

The Court’s reasoning in Wayfair departs from its prior stare decisis analysis. In 1932, Justice Brandeis posited that stare decisis must bend “in cases involving the Federal Constitution, where correction through legislative action is practically impossible.”51×51. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–07 (1932) (Brandeis, J., dissenting). The Court has long since adopted his argument,52×52. See, e.g., Smith v. Allwright, 321 U.S. 649, 665 (1944). as well as its corollary — that stare decisis commands “special force in the area of statutory interpretation” where “Congress remains free to alter what [the Court has] done.”53×53. Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1989). For normative evaluations of heightened stare decisis for statutory precedents, see generally Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation 211–23 (2008); and William N. Eskridge, Jr., Overruling Statutory Precedents, 76 Geo. L.J. 1361, 1364–1409 (1988). Justice Brandeis’s logic demands that dormant commerce clause cases, where Congress is free to act, be granted the weightier stare decisis.54×54. Scholars have noted the curious fact that Justice Brandeis included many dormant commerce clause cases as examples of overruled constitutional precedents. See, e.g., Earl M. Maltz, Commentary, Some Thoughts on the Death of Stare Decisis in Constitutional Law, 1980 Wis. L. Rev. 467, 468–469, 469 n.11. One explanation for this is that Justice Brandeis sought the authority of Chief Justice Taney’s dictum that the Court’s “opinion upon the construction of the Constitution is always open to discussion” — which referred to the dormant commerce clause. See Burnet, 285 U.S. at 408 n.3 (Brandeis, J., dissenting) (quoting The Passenger Cases, 48 U.S. (7 How.) 283, 470 (1849) (Taney, C.J., dissenting)). In Chief Justice Taney’s time, it was thought that Congress could not override the Court’s dormant commerce clause decisions, see Cooley v. Bd. of Wardens, 53 U.S. (12 How.) 299, 321 (1852), so the context of Chief Justice Taney’s dictum does not conflict with Justice Brandeis’s theory of stare decisis. The Court applied this reasoning in Quill, as Chief Justice Roberts underscored.55×55. Wayfair, 138 S. Ct. at 2102 (Roberts, C.J., dissenting).

Yet the Wayfair majority refused to consider Congress’s authority to legislate as a relevant factor for stare decisis.56×56. Even Justice Kennedy’s earlier opinion in Direct Marketing contemplated judicially overruling Quill, conspicuously neglecting a possible legislative solution. See supra p. 278. The Court even insisted that to do so “is inconsistent with the Court’s proper role,” since Quill embodied “a false constitutional premise of th[e] Court’s own creation.”57×57. Wayfair, 138 S. Ct. at 2096 (emphasis added). This refusal breaks from the practical Brandeisian wisdom that has guided the Court’s treatment of precedent for the better part of a century. The point is not that stare decisis should have ultimately propped up Bellas Hess yet again, as Wayfair’s dissenting Justices maintained. After all, a realistic approach that is alert to each branch’s institutional capacities might have led to the conclusion that Congress was actually ill-equipped to overrule Quill. In this vein, the Court could have sensibly pointed out that Congress is unlikely to stick its neck out with a tax hike (or a look-alike) from which only the states would benefit.58×58. For two practical arguments to this effect, see Brian Galle, Essay, Kill Quill, Keep the Dormant Commerce Clause: History’s Lessons on Congressional Control of State Taxation, 70 Stan. L. Rev. Online 158, 160–62 (2018), https://review.law.stanford.edu/wp-content/uploads/sites/3/2018/03/70-Stan.-L.-Rev.-Online-158-Galle.pdf [https://perma.cc/22YP-P4V5]; Edward A. Zelinsky, The Political Process Argument for Overruling Quill, 82 Brook. L. Rev. 1177, 1191–92 (2017). Indeed, South Dakota advanced such practical arguments in its brief.59×59. See Petitioner’s Brief at 54, Wayfair, 138 S. Ct. 2080 (No. 17-494) (“Congress has little incentive to act here because it would be (or appear to be) authorizing new or greater tax collections from its constituents, while receiving none of the revenue in return.”). More generally, the Court might have discussed the limits of the states’ influence in the federal system as a reason not to wait for congressional intervention, a topic it has debated on other occasions.60×60. See Richard H. Pildes, Institutional Formalism and Realism in Constitutional and Public Law, 2013 Sup. Ct. Rev. 1, 30–32; see also Galle, supra note 58, at 159 (“Congress is not a trustworthy guardian of state fiscal power, making continuing judicial involvement a more appealing prospect.”). Or it could have argued that new facts on the ground — namely, the blast of e-commerce that hit like a comet after Quill — overpowered stare decisis of any force, special or plain.61×61. Two recent studies of stare decisis highlighted the physical presence rule as exemplifying a precedent that may reasonably be overruled due to changed facts. See Bryan A. Garner et al., The Law of Judicial Precedent 364–65 (2016); Randy J. Kozel, Settled Versus Right: A Theory of Precedent 112–13 (2017). It should be noted that the authors of The Law of Judicial Precedent classify the physical presence rule as a constitutional precedent for stare decisis purposes, thus anticipating the Court’s misstep in Wayfair. Garner et al., supra, at 354–65. Because even statutory precedents may sometimes be overruled,62×62. See Patterson v. McLean Credit Union, 491 U.S. 164, 173–74 (1989) (discussing justifications for overruling statutory precedents). Contra Lawrence C. Marshall, “Let Congress Do It”: The Case for an Absolute Rule of Statutory Stare Decisis, 88 Mich. L. Rev. 177 (1989). the Court could have killed Quill without first planting its constitutional kiss of death.63×63. Cf. Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 704 (1999) (“Justice Brandeis’ . . . memorable prose has since become a mandatory part of the burial rite for any constitutional precedent.”).

The Court resisted such arguments. Instead, Wayfair reasoned that Congress’s total ability to correct an erroneous decision counts for nothing when the Court gets the Constitution wrong. That such a theory sprouts from a case like Wayfair, which repudiated a “formalistic distinction,”64×64. Wayfair, 138 S. Ct. at 2092. is ironic. Wayfair’s stare decisis analysis resorts to the formalism of making constitutional a “magic” word65×65. See Transcript of Oral Argument, supra note 21, at 12. rather than asking whether Congress can step in.

Moreover, the Court’s new thinking on stare decisis threatens other constitutional default rules. Wayfair now stands for the proposition that a “constitutional default rule” — a term the Court apparently lifted from South Dakota’s reply brief on the merits66×66. Reply Brief at 22, Wayfair, 138 S. Ct. 2080 (No. 17-494) (“Congress is polarized, which makes it critical . . . to get the constitutional default rule right.”). — gets only weakened stare decisis. To appreciate why this holding matters, it is worth exploring the concept and scope of constitutional default rules. Contract theory describes default rules as legal rules that the parties may “contract around.”67×67. See, e.g., Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 87 (1989). Although “constitutional default rule” could be read broadly to include a variety of actors and contracting mechanisms,68×68. See John Ferejohn & Barry Friedman, Toward a Political Theory of Constitutional Default Rules, 33 Fla. St. U. L. Rev. 825, 826 (2006) (“When we speak of default rules in constitutional law, we typically are talking about specifications of ways the government can act (or modify its behavior) to get around a constitutional prohibition.”). the Court’s use of the term for purposes of stare decisis may be narrowly defined as judicial precedents of constitutional law that “are ultimately subject to congressional control.”69×69. Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 Harv. L. Rev. 1468, 1525 (2007) (describing judicially enforceable “constitutional default rules imposing obligations on the states in the name of union [that] are ultimately subject to congressional control”). The dormant commerce clause is a paradigmatic constitutional default rule because what the Court does today Congress may undo tomorrow. Justice Scalia declared this fact “[t]he clearest sign that the negative Commerce Clause is a judicial fraud,” for “[h]ow could congressional consent lift a constitutional prohibition?”70×70. Comptroller of the Treasury of Md. v. Wynne, 135 S. Ct. 1787, 1808 (2015) (Scalia, J., dissenting). But that’s what a constitutional default rule is. The Court has allowed Congress to overturn its dormant commerce clause cases since 1891.71×71. See In re Rahrer, 140 U.S. 545, 560–62 (1891).

Dormant commerce clause cases are not the only constitutional default rules. Professor Laurence Tribe’s treatise identifies two others.72×72. 1 Laurence H. Tribe, American Constitutional Law § 6-35 (3d ed. 2000). And in a groundbreaking article, Professor Henry Monaghan revealed “a substructure of substantive, procedural, and remedial rules” forming “a constitutional common law subject to amendment, modification, or even reversal by Congress.”73×73. Henry P. Monaghan, The Supreme Court, 1974 Term — Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1, 2–3 (1975); see also Susan R. Klein, Identifying and (Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 Mich. L. Rev. 1030 (2001) (further developing Monaghan’s theory in criminal procedure context). What follows is a list of six lines of cases beyond the dormant commerce clause that may be fairly described as constitutional default rules. The first two are drawn from Tribe’s treatise while the next four are found in Monaghan’s article:

(1) State Taxation of Federal Instrumentalities: States may not tax instrumentalities of the federal government74×74. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819). — unless Congress consents.75×75. See, e.g., Helvering v. Gerhardt, 304 U.S. 405, 411 n.1 (1938) (“Congress may curtail an immunity which might otherwise be implied or enlarge it beyond the point where, Congress being silent, the Court would set its limits.” (citations omitted)). One court has described such judicial decisions as setting a “constitutional default rule.” United States v. Delaware, 958 F.2d 555, 560 n.9 (3d Cir. 1992) (“[W]e must decide the constitutional default rule for this type of tax, fully aware that Congress could decide at any time to reverse our decision statutorily.”). (2) Article I, Section 10 Cases: Article I, Section 10 provides that certain prohibitions on the states may be waived by Congress.76×76. See U.S. Const. art. I, § 10, cls. 2–3. The Court has taken note of this when considering whether to overrule, for instance, an Import-Export Clause precedent.77×77. See Hooven & Allison Co. v. Evatt, 324 U.S. 652, 668 (1945) (“In view of the fact that the Constitution gives Congress authority to consent to state taxation of imports and hence to lay down its own test for determining when the immunity ends, we see no convincing practical reason for abandoning the test which has been applied for more than a century . . . .”), overruled on other grounds by Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984). In Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976), the Court left open the question whether “Congress may authorize, under the Import-Export Clause, an exaction that it could not directly impose under the Tax Clause.” Id. at 301 n.13. Metzger, however, argues that the Import-Export Clause is free of other clauses’ limits on congressional power. See Metzger, supra note 69, at 1500 & n.120. (3) Bivens Cases: In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,78×78. 403 U.S. 388 (1971). the Court held that a violation of the Fourth Amendment gives rise to a right to sue for damages.79×79. Id. at 397. But the Court has also held that “[s]uch a cause of action may be defeated . . . when . . . Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.”80×80. Carlson v. Green, 446 U.S. 14, 18–19 (1980). (4) Miranda Cases: The Miranda Court famously “encourage[d]” Congress and the states to explore alternative “procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it.”81×81. Miranda v. Arizona, 384 U.S. 436, 467 (1966). In Dickerson v. United States, 530 U.S. 428 (2000), the Court struck down a congressional attempt to effectively abolish Miranda, holding that “Miranda announced a constitutional rule that Congress may not supersede legislatively.” Id. at 444. But Dickerson also stood by Miranda’s “invitation for legislative action” to replace Miranda with an adequate substitute. Id. at 440; see also Michael C. Dorf & Barry Friedman, Shared Constitutional Interpretation, 2000 Sup. Ct. Rev. 61 (discussing legislative alternatives to Miranda). (5) The Police Lineup Case: In United States v. Wade,82×82. 388 U.S. 218 (1967). the Court created an exclusionary rule for evidence obtained from a police lineup in violation of the Sixth Amendment right to counsel but acknowledged that it could be replaced by “[l]egislative or other regulations . . . which eliminate the risks of abuse.”83×83. Id. at 239. (6) The Exclusionary Rule Cases: Mapp v. Ohio made the Fourth Amendment “exclusionary rule” binding on the states,84×84. 367 U.S. 643, 655 (1961). yet Congress is thought to have the power to replace it.85×85. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 422–24 (1971) (Burger, C.J., dissenting) (inviting Congress to replace the Fourth Amendment exclusionary rule); Harold J. Krent, How to Move Beyond the Exclusionary Rule: Structuring Judicial Response to Legislative Reform Efforts, 26 Pepp. L. Rev. 855, 864–71 (1999).

All of the above are arguably constitutional default rules set by the Court that remain, to one degree or another, open to congressional revision. The list could be longer or shorter, depending on which default rules the Court will view as constitutional86×86. A shorter list could be produced by whittling away at the constitutional status of the cases identified by Monaghan. While the Court has held that Miranda is a constitutional decision, Dickerson, 530 U.S. at 444, some of the other cases may be viewed as nonconstitutional. See, e.g., Collins v. Virginia, 138 S. Ct. 1663, 1675–80 (2018) (Thomas, J., concurring) (arguing that Mapp is “nonconstitutional,” id. at 1678 n.5); Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal Courts and the Federal System 775–77 (7th ed. 2015) (discussing whether Bivens is constitutionally required). Conversely, a longer list might include any constitutional right that can be waived by a party. See, e.g., Daniel A. Farber, Another View of the Quagmire: Unconstitutional Conditions and Contract Theory, 33 Fla. St. U. L. Rev. 913, 918 (2006) (describing the Eleventh Amendment as “just a contractual default rule that the states are free to barter away”). Such a list might also include various constitutionally inspired judicial presumptions. See, e.g., Jack Goldsmith & John F. Manning, The President’s Completion Power, 115 Yale L.J. 2280, 2299 (2006) (describing the Chevron presumption of delegated interpretive power to administrative agencies as “a constitutionally inspired default rule”); Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2097–98 (2002) (describing clear statement rules as “constitutional default rules” reversible by Congress). Many other decisions could likely be characterized as constitutional default rules; the list above is only an initial stab. and on how it will answer open questions about congressional authority over certain constitutional provisions.87×87. See, e.g., Thomas v. Wash. Gas Light Co., 448 U.S. 261, 272 n.18 (1980) (plurality opinion) (leaving unresolved whether Congress may limit constitutional full faith and credit obligations); White v. Mass. Council of Constr. Emp’rs, Inc., 460 U.S. 204, 215 n.1 (1983) (Blackmun, J., concurring in part and dissenting in part) (leaving unresolved “whether Congress may authorize . . . what otherwise would be a violation” of the Privileges and Immunities Clause); 1 Tribe, supra note 72, § 6-35, at 1243–44 (arguing that Congress cannot override judicial constructions of the Privileges and Immunities Clause); Metzger, supra note 69, at 1486–89 (arguing the opposite). But the takeaway is clear: weaker stare decisis for constitutional default rules. Pre-Wayfair, one would have thought that stare decisis applies with special force to such precedents, given congressional power to set them straight. Not anymore. Why? Because it is improper to “ask Congress to address a false constitutional premise of th[e] Court’s own creation.”88×88. Wayfair, 138 S. Ct. at 2096. The Latin for Wayfair’s doctrine is not stare decisis, which should reflect a realistic, working relationship between the legislative and judicial branches. It is mea culpa.

In its zeal to update the Constitution for “the Cyber Age,”89×89. Id. at 2097. the Court deleted Congress from stare decisis doctrine in constitutional cases. The Court had better options. It could have left Quill on Congress’s doorstep, as the dissent argued. Or it could have justified overruling Quill notwithstanding the special force of stare decisis. Instead, the Court reasoned that it doesn’t matter whether Congress is willing and able to do the job: a constitutional mess calls for a judicial clean-up crew. For constitutional default rules — a category of decisions embracing the dormant commerce clause and sweeping far beyond — Wayfair’s new theory of stare decisis makes the Court’s precedents less sticky and Congress less relevant.