During the past 25 years, Congress has with increasing frequency enacted legislation that is intended to override inconsistent provisions in U.S. tax treaties. These legislative overrides are harmful, and have been decried by our treaty partners, members of the executive branch, and commentators.
Until now, commentators have generally devoted themselves to describing and deploring legislative overrides of tax treaties, and have done no more than repeatedly call on Congress to cease enacting such legislation. Congress has ignored these pleas, and has continued to enact legislative overrides with impunity.
Given this background, the essay calls on commentators to cease pleading with Congress and instead to devote their time to developing theories for circumscribing Congress' ability to enact legislative overrides. Having issued this call, the remainder of the essay is devoted to the development of an argument that Congress lacks the constitutional authority to enact legislative overrides. The analytical framework of this argument is patterned after the Supreme Court's decision in Clinton v. City of New York, in which the Line Item Veto Act was held unconstitutional.
Anthony C. Infanti,
Curtailing Tax Treaty Overrides: A Call to Action,
University of Pittsburgh Law Review
Available at: https://scholarship.law.pitt.edu/fac_articles/149