Andrew Appleby (Tennessee, SSRN) presents Constitutional Commandeering, 62 Wake Forest L. Rev. ___ (forthcoming 2026) at Florida State today as part of its Law and Business Speaker Series hosted by Jeffrey Kahn:
The anti-commandeering doctrine has emerged as one of the most consequential principles in contemporary federalism jurisprudence, with implications extending across immigration enforcement, firearms regulation, data privacy, and a widening array of domains where federal and state authority intersect. Yet despite the doctrine’s growing prominence, courts and scholars lack a coherent framework for distinguishing permissible federal preemption from unconstitutional commandeering of state governments. This Article argues that state taxation provides an ideal lens through which to develop and evaluate such a framework. Taxation lies at the core of state sovereign authority and serves as a cornerstone of fiscal federalism.
Congress has shown an increasing willingness to enact statutes that restrict state taxing power—legislation that tests the boundaries between legitimate Supremacy Clause preemption and impermissible commandeering. Through a detailed analysis of five significant federal tax preemption efforts, including proposed federal legislation that would preempt state regulation and taxation of artificial intelligence (AI), this Article demonstrates that current jurisprudence fails to provide adequate guidance for resolving this tension.
After tracing the doctrinal evolution of both the anti-commandeering doctrine and federal tax preemption efforts, this Article proposes two novel analytical frameworks to determine when federal restrictions on state taxing authority cross constitutional boundaries. The first offers a bright-line rule that provides certainty and ease of application; the second presents a multi-factor balancing test that affords greater contextual sensitivity. Both frameworks aim to preserve the structural integrity of fiscal federalism while accommodating legitimate federal interests in regulatory uniformity. If the anti-commandeering doctrine is to remain a meaningful constraint on federal power, it must protect the foundation of fiscal federalism: state taxing authority.
