The U.S. Solicitor General has filed its amicus brief in New Hampshire v. Massachusetts (here). The Solicitor General argues that the United States Supreme Court should not exercise its original jurisdiction and it should deny New Hampshire’s facial constitutional challenge of Massachusetts’ taxation of New Hampshire residents.

For background, on October 19, 2020 New Hampshire (on behalf of its residents) filed a motion for leave to file a bill of complaint with the U.S. Supreme Court that challenges the constitutionality of Massachusetts’s emergency regulation on telework during Covid-19, 830 CMR 62.5A.3. The Massachusetts emergency regulation imposes tax on wages earned by nonresidents who previously worked in Massachusetts, but commenced telework at their residence or other out-of-state location due to a “pandemic-related circumstance.” In effect, the Massachusetts emergency regulation resembles a “temporary” convenience of the employer test – similar to the one enforced by New York – that applies from March 10, 2020 until 90 days after the governor lifts the state’s Covid-19 emergency declaration. New Hampshire alleges several constitutional infirmities of the emergency regulation, including violations of the Commerce Clause and Due Process Clause. Massachusetts counters those violations in its opposition brief to the New Hampshire motion for leave. In addition to the substantive issues raised, Massachusetts alleges that New Hampshire does not have standing to sue on behalf of its residents and, therefore, the Court should not exercise its original jurisdiction that applies to suits between states.

On January 25, 2021, the Court asked the Acting Solicitor General to file a brief expressing the views of the United States. The Solicitor General summarizes its argument as follows:

The motion for leave to file a bill of complaint should be denied. This is not an appropriate case for the exercise of this Court’s original jurisdiction, which the Court has repeatedly stated should be exercised only “sparingly.” Mississippi v. Louisiana, 506 U.S. 73, 76 (1992) (citation omitted). New Hampshire does not invoke the types of interests that would warrant such an exercise, and the issues New Hampshire seeks to present can adequately be raised and litigated by New Hampshire residents who are subject to the Massachusetts income tax. In addition, the constitutional claims would more appropriately be considered on developed factual records concerning affected individuals and with the benefit of authoritative interpretations of the relevant tax provisions by Massachusetts courts.

Brief for the United States as Amicus Curiae, as Amicus Curiae, New Hampshire v. Massachusetts, No. 22O154, May 25, 2021.

As with any dispute between states, New Hampshire v. Massachusetts has generated interest among taxpayers and state governments alike. Of note, in addition to the Solicitor General’s brief, a number of amici curiae filed briefs in support of the respective parties, including a group of ten states in support of New Hampshire (the “Ohio Brief”) and a group of four states also in support of New Hampshire (the “New Jersey Brief”). Interestingly, the Ohio Brief focuses on original jurisdiction – arguing the Court must review disputes between states. In contrast, the New Jersey Brief addresses the substantive constitutional issues.

Eversheds Sutherland SALT will continue monitoring this important and interesting case.