| Concurrence [ Scalia ] | Syllabus | Dissent [ Stevens ] | Opinion [ Souter ] |
|---|---|---|---|
| HTML version WordPerfect version | HTML version WordPerfect version | HTML version WordPerfect version | HTML version WordPerfect version |
SUPREME COURT OF THE UNITED STATES
No.
GENERAL MOTORS CORPORATION, PETITIONER v. ROGER W. TRACY, TAX COMMISSIONER OF OHIO
on writ of certiorari to the supreme court of ohio
[
Justice Scalia , concurring.
I join the Court's opinion, which thoroughly explains why the Ohio tax scheme at issue in this case does not facially discriminate against interstate commerce. I write separately to note my continuing adherence to the view that the so called "negative" Commerce Clause is an unjustified judicial invention, not to be expanded beyond its existing domain. "The historical record provides no grounds for reading the Commerce Clause to be other than what it says--an authorization for Congress to regulate Commerce." Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U.S. 232, 263 (1987) (Scalia, J., concurring in part and dissenting in part).
I have previously stated that I will enforce on stare decisis grounds a "negative" self executing Commerce Clause in two situations: (1) against a state law that facially discriminates against interstate commerce, and (2) against a state law that is indistinguishable from a type of law previously held unconstitutional by this Court. West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 210 (1994) (Scalia, J., concurring in judgment); Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 78 (1993) (Scalia, J., concurring in part and concurring injudgment) (collecting cases). Although petitioner contends that Ohio facially discriminates against interstate commerce with respect to natural gas sales, its argument is based on a novel premise: that private marketers engaged in the sale of natural gas are similarly situated to public utility companies. Nothing in this Court's negative Commerce Clause jurisprudence compels that conclusion. To hold that States must tax gas sales by these two types of entities equally would broaden the negative Commerce Clause beyond its existing scope, and intrude on a regulatory sphere traditionally occupied by Congress and the States.