Federal Constitutional Limitations on Congressional Power to Legislate Regarding State Taxation of Electronic Commerce

Recent Supreme Court decisions taking a restrictive approach to Congress’ power to regulate interstate commerce under the Commerce Clause and a broader view of states’ immunity from suit under the Eleventh Amendment arguably cast doubt on Congress’ power to legislate a comprehensive solution to the problems raised by state taxation of electronic commerce. A fair reading of the U.S. Supreme Court’s recent decisions reveals that these concerns are unwarranted. In fact, the Court has reaffirmed the core Commerce Clause principles that accord Congress ample power to legislate regarding state taxation of electronic commerce. Moreover, whatever limits there may be on Congress’s power to create federal jurisdiction over nonconsenting states, Congress may employ a variety of methods, short of outright coercion, by which it may induce a state to adopt a legislative program consistent with federal interests.