Weekend Read: From The ‘Amazon tax’ To Litigation, U.S. Arm-Wrestles Over State v. Fed

By Randy Wyrick, NCM contributing editor

If you’ve ever been to a high school basketball game, you know that using local refs begets screaming parents. Congratulations, you now understand a core idea of legal jurisdiction: No home cooking.

The Denver Post said as much by beginning a story about the famous Amazon Tax with “… the U.S. Supreme Court stripped Colorado Attorney General Cynthia Coffman of home field advantage Tuesday in the long-running — and closely watched — legal challenge of a state law requiring online retailers to report purchases made by their Colorado customers for tax purposes.”

It took the nation’s high court to move “Amazon” to federal court, but it is one issue among many. Across the country we are arm-wrestling over who should be calling the fouls.

Okay, most of us learned in junior high civics class that in America’s Statutory Sleepover, federal laws get the top bunk over state laws. Yet we play civic tug-of-war with the feds. Some of us are paying state taxes for stuff that, under federal law, might mean paying fines – or going to prison. And, from west of the Mississippi to just past the California state line, federal regulation is the only reason Interstate speed limits are not represented by the infinity symbol.

Clearly, Americans have become jurisdiction connoisseurs. Look around. From Common Core educational policy to immigration enforcement (is that a Texas border with Mexico or a U.S. border?), your state-or-federal view depends on which rules benefit your opinion. It does not help that Congress and President Obama effectively out-source governing to regulators, in the same way, and perhaps for many of the same reasons, that big-box retailers out-source manufacturing potentially toxically-painted toys to Ubangi-Bangi.

Granted, not even HBO’s John Oliver could make these jurisdictional debates entertaining, although maybe I’m wrong since he turned civil forfeiture into knee-slapping good times. But if Mr. Oliver tackles the issue, he might start with Charles J.  “Chuck” Cooper, the Washington attorney and constitutional guru perhaps best known for his U.S. Supreme Court arguments for the “no way” side of same-sex marriage in that California Proposition, which is of course another of those federal/state struggles.

Mr. Cooper has been to limited federal government what Billy Graham has been to presidential conscience. So when he recently argued that federal courts are getting it wrong by too narrowly defining their jurisdiction, folks got nervous in the way you get nervous about the Pope announcing that belief in alien life was okay – sort of, “what does he really know?”

Well, what Mr. Cooper knows is the nation’s litigation landscape.

Mr. Constitution has taken leave (temporarily, no doubt) from the state-power camp because of “diversity jurisdiction,” a form of what the Supreme Court tackled with Amazon. It’s oft noted that America’s Founding Fathers from one state did not exactly trust that all other states would play fair, so they set up federal courts to settle claims between folks from different states – in other words, they banned home cooking.

That’s fine when “Mr. A” from New York sues “Mr. B” from Virginia – clearly federal. If they are both in New York, then state. It is horse-and-buggy simple.

But, what if Mr. A, the suer, (suer, not sewer, although the metaphorical diversion is tempting) sues not only the aforementioned scoundrel Mr. B, but also Mrs. C and gender-neutral Person D? And what if only one of those resides in the home state of Mr. A? Does Mr. A get the potential home field advantage over the others? Goodbye horse-and-buggy simplicity, hello Tesla-and-SpaceX.

Currently, the person suing mostly gets to choose the kitchen. The courts have ruled that Mr. A can remain in state court so long as any one of what might be an entire alphabet of defendants is in that state. Mr. Cooper and others are starting to argue another approach – that interstate lawsuits should be presumed to go to federal court if any of the parties are from different states.

Connect the dots between op-eds in the conservative Washington Times amid right-leaning podcasts and panel discussions, and you see the real target is what they would call “forum shopping,” the controversial term for lawyers picking the court situation most favorable for their clients – and, really, who wouldn’t? Certainly, Colorado hoped for home-field advantage in that Amazon case.

Still, Mr. Cooper taking his approach is one thing, kind of like John Boehner signing up for Obamacare. But the Federalist Society recently convened a panel discussion, and it seems to support some core Cooper arguments – if they support the federal approach, that would be like if the Tea Party caucus signed up for Obamacare.

Not since instant replay has anyone called for such a sweeping change in how we settle disputes. When the Mile High Joint Jousting brings the avalanche of marijuana lawsuits (and it will), this state-or-federal recipe is going to become tricky. As somebody who usually favors home cooking, especially of the country fried steak variety, it’s already interesting that people like Mr. Cooper are finding status quo less appetizing.

I just hope it doesn’t somehow mean I’ll end up having to digest that darned Amazon Tax.

(Randy Wyrick is a longtime Colorado journalist, former UPI political writer
and now the newest contributing editor for the National Courts Monitor.)