Michael T. Fatale
(Chief, Rulings & Regulations Bureau,
Massachusetts Department of Revenue), Common Sense: Implicit Constitutional Limitations on Congressional Preemptions of State Tax, 2012 Mich. St. L. Rev. 41:

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.

Michael received the Paull Mines Award for Outstanding Contribution to State Tax Jurisprudence at the annual meeting of the Multistate Tax Commission:

Mr. Fatale’s outstanding contributions include a number of influential
law review articles, several of which have been cited for important
propositions in landmark state appellate decisions, such as Kmart
Props., Inc. v. Taxation & Revenue Department, Tax Comm’r v. MBNA
America Bank N.A., and KFC Corp. v. Iowa Department of Revenue. His
most recent publication, Common Sense: Implicit Constitutional
Limitations on Congressional Preemptions of State Tax, like his earlier
publications, contributes an insightful and sophisticated analysis that
moves forward the discussion on an important topic in a constructive
way. Mr. Fatale’s willingness to share his insight at national
conferences and during Commission meetings, teleconferences, and
training sessions has helped shape the debate and the resolution of some
of today’s most complex issues in state taxation. In 2005, his
leadership role in a significant multistate bankruptcy matter on behalf
of a large number of states was recognized in a feature article by the
Boston Globe titled Hooray for the Taxman, a sentiment rarely
expressed and truly deserved by Mr. Fatale.