Book Description

It cannot be the case that the U.S. Congress has unfettered authority to preempt state taxes pursuant to the U.S. Constitution's Commerce Clause because the federal Government and the state Governments are separate sovereigns under the Constitution and the power to tax is a fundamental aspect of Governmental sovereignty. Further, such unlimited authority is inconsistent with the purpose and meaning of the Commerce Clause, as it has been construed by the U.S. Supreme Court starting with its earliest cases, up through its more recent federalism cases. Yet, such preemptions have become more frequent in recent years and the volume of federal bills proposing such preemptions have recently multiplied, fostered by the fact that there are no established judicial limitations that apply to such preemptive actions. The U.S. Supreme Court has in recent years emphasized our nation's dual sovereignty structure and the Framers' intentions as embodied in the Constitution in crafting rules to protect the states from federal overreaching in various contexts under the Constitution, including with respect to the Commerce Clause. This paper evaluates Congress' ability to preempt state taxation by evaluating the Commerce Clause as it applies to such proposed preemptive acts, and suggests the limits that should apply thereto.