Congress's Authority to Regulate State and Local Taxation.

The near universal consensus is that -- although the Supreme Court has never squarely decided the question -- Congress has the constitutional authority to regulate how states impose taxes. Assuming this is true, this Article contends that the Constitution must constrain this power. In other words, there must exist a constitutional principle that limits this authority beyond those limits on Congress's regulation of the states already articulated by the Court (such as the anti-commandeering doctrine). This principle should center on two criteria. The first is the practical impact of the statute on states' taxing powers, both in terms of their capacity to raise revenue and their discretion to determine how to raise it. The second concerns the purpose of the statute. The Framers granted Congress the commerce power largely to prevent the states from harming neighboring states or the nation as a whole. So Congress is on much surer footing when it regulates state taxes in pursuit of this objective: to protect interstate commerce from overlapping or inconsistent state tax rules. This likely means that most of the statutes Congress has thus far enacted that regulate state and local taxes are constitutional (though some are potentially problematic). Perhaps more important, it means that a range of statutes Congress might enact in the near future would raise serious constitutional concerns. States have recently considered several new taxes in reaction to changing economic conditions -- taxes that could prove vital to their ability to remain meaningfully independent centers of governmental power. Congressional attempts to preempt these innovations may well violate the structural principles of federalism. [ABSTRACT FROM AUTHOR]