NEW YORK, NEW YORK – JUNE 24: New York mayoral candidate, State Rep. Zohran Mamdani (D-NY) speaks to supporters during an election night gathering at The Greats of Craft LIC on June 24, 2025 in the Long Island City neighborhood of the Queens borough in New York City. Mamdani was announced as the winner of the Democratic nomination for mayor in a crowded field in the City’s mayoral primary to choose a successor to Mayor Eric Adams, who is running for re-election on an independent ticket. (Photo by Michael M. Santiago/Getty Images)
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President Donald Trump is casting about for an answer as to whether the federal government can stop New York’s new pied-à-terre tax. There is an answer—but he probably isn’t going to like it.
His administration has few good options for killing the tax on its own. Congress, however, has a somewhat stronger one.
Trump’s Options are Few
The top-line answer is President Trump can’t simply nullify a state tax by executive order. The Justice Department could intervene in the litigation already surrounding the tax, or bring a federal challenge of its own, but neither route provides a clear path to victory. The Tax Injunction Act would curtail them in the latter case—it keeps federal district courts out of state tax collection when taxpayers have an adequate remedy in state court—and the former is little more than a statement of position.
When the Justice Department previously challenged an allegedly discriminatory residential property-tax system in New York, a federal court held that the federal government couldn’t evade TIA restrictions by suing on behalf of homeowners. So that is probably a nonstarter.
Congress to the Rescue?
Congress has considerably more power over state taxation than Trump does—though, admittedly, not unlimited power. Congress has repeatedly used its constitutional powers to place federal limits on state and local taxes. The Railroad Revitalization and Regulatory Reform Act, for example, prohibits states from imposing certain property taxes on railroads and expressly gives federal courts jurisdiction to stop them, notwithstanding the aforementioned TIA.
And the Supreme Court has approved more direct intervention. In Arizona Public Service Co. v. Snead, the Court upheld a federal statute enacted specifically to preempt a New Mexico tax that Congress determined was discriminatory against interstate commerce. The lesson is pretty straightforward, Congress needn’t wait for a state tax to violate the dormant Commerce Clause. Exercising its affirmative Commerce Clause power, it can prohibit state taxation it determines burdens interstate commerce. Provided, that is, the connection is sufficient and the remedy reasonably tailored to the harm caused.
Congress can’t tell New York lawmakers what law they must repeal, that would invite an anti-commandeering challenge. It would need to instead regulate all the states directly by making a defined category of state taxation invalid under federal law.
Simple Enough
Congress could, for example, create a federal protection against any state or local property-tax surcharges triggered by a residential property’s failure to qualify as an owner’s primary residence—perhaps tailored just to owners domiciled in another state or properties acquired through an interstate transaction. It could expressly preempt conflicting state law, give affected property owners a federal cause of action, and authorize federal courts to hear those claims notwithstanding the TIA. Simple enough.
Except Congress would still need a constitutional basis for doing all that. Real property taxation lies about as near the core of traditional state authority as one can get. New York’s tax isn’t expressly limited to out-of-state owners, as a New York resident’s vacation apartment can be subject to the surcharge just as readily as a Vermont resident’s. Congress therefore would need to identify the interstate economic activity it is regulating—perhaps interstate investment in residential real estate—and build a record showing how taxes conditioned on primary-residence use burden the market.
So our hypothetical federal law is getting pretty narrow. Perhaps Congress could prohibit supplemental taxes on non-primary residences purchased by out-of-state residents, after finding that those taxes substantially burden interstate residential real estate investment. But then Congress would have to explain why its rule reaches a tax that doesn’t distinguish between interstate and intrastate owners. And why prohibiting that tax is an appropriately tailored response to that interstate burden.
And there is another problem. New York’s pied-à-terre tax is drafted to avoid the most obvious constitutional collision in the first place—the Supreme Court has invalidated property-tax discrimination under the dormant Commerce Clause, but New York distinguishes between uses rather than residents and outsiders. An apartment owned by someone in New Jersey can qualify for an exemption if it is used as a primary residence. A New Yorker’s second home can be taxed. Whatever the practical incidence of the tax may be, that policy drafting decision makes a straightforward discrimination claim considerably harder.
Congressional preemption would flip that inquiry. Instead of asking whether the Constitution already prohibits New York’s tax, a court would be asking whether Congress acted within its power to regulate interstate commerce. Sneaddemonstrates, in limited circumstances, the answer can be yes—even when Congress targets a particular state tax. But Snead involved a tax Congress found discriminated against interstate commerce. Here, Congress would have to manufacture a considerably longer logical chain between a facially residence-neutral property tax and interstate commerce.
Define “Can”
So, sure, there is a federal solution. Congress could enact a nationwide prohibition carefully defining a class of second-home property taxes, establish their implausible effect on interstate commerce, tailor the prohibition to that effect, expressly preempt contrary state law, create a federal cause of action, and override the Tax Injunction Act. Then it could defend the resulting statute in court.
Trump’s search for federal authority isn’t necessarily futile—but his reach for unilateral authority very likely is. The executive branch can litigate, intervene, apply political pressure, and post to Truth Social. But if Washington wants to make New York’s tax unenforceable, the most plausible legal route is going to run through Congress. Which is another way of saying that there probably isn’t much the administration can do.
But my bet? Trump just stops posting about it.