Open Letter to Senator Robert Menendez (D-NJ) in Response to His Support for the Marketplace Fairness Act of 2013

Senator Menendez,

Thank you for the speedy response.  I understand the benefits that you feel this act will confer on small businesses through the exemptions for online sales below $1 million and the usefulness of this federal initiative which offers states increased authority through the multistate compact, known as the SSUTA, in exchange for greater tax code simplification. However, I think there are significant downsides that cannot be ignored.

As always, my first response to any policy comes from our nation’s greatest of documents, the U.S. Constitution.  Though the word federalism never comes up in the document, it is clear through the separation of powers created by the 5 articles of the Constitution that the framers had intended to create a government that had competing branches as well as state governments.  This leads me to my first objection: the authority you intend to convey is not in the province of the federal government.

In fact, federalists believed that the Bill of Rights would be unnecessary because of how weak a government they had created.  They believed that the competition between branches and the state governments would all balance each other out to protect the rights of individual citizens.  This view leads to one conclusion: collusion between government entities has great potential to infringe upon our freedoms.

Further, to convey authority such as this is to upset the balance of federalism, which was made to protect the rights of citizens against taxation without representation.  Your bill creates a scenario where a state may tax a citizen who has never lived in, visited, drove through, or in anyway assented to the laws and authority of that state.

Additionally, though I appreciate the Marketplace Fairness Act’s goal of helping small businesses, I find the inclusion of an exception to be performatively contradictory.  This Act intends to encourage tax code simplicity, but the Act itself adds a loophole and encourages the expansion of the SSUTA, which will only increase the size of our nation’s bureaucracy, another cost for the taxpayers.

While I may be able to agree on some of the goals of this legislation, I find its means woefully inadequate and ultimately barred by our nation’s most central document.  I recognize that the vote on this bill has already passed, however its chances in the House appear dim in the view of most pundits.  Ultimately, whether you participate in a joint committee on this bill or if upon further change this bill returns to the Senate, I hope you will change your outlook on the bill and your vote on the floor.


Hassan A. Sheikh
J.D. Candidate, 2015

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