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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 91-321
- --------
- ITEL CONTAINERS INTERNATIONAL CORPORA-
- TION, PETITIONER v. JOE HUDDLESTON,
- COMMISSIONER OF REVENUE
- OF TENNESSEE
- on writ of certiorari to the supreme court of
- tennessee, middle division
- [February 23, 1993]
-
- Justice Scalia, concurring in part and concurring in
- the judgment.
- I join all of the Court's opinion except those sections
- disposing of the petitioner's -negative- Foreign Commerce
- Clause and Import-Export Clause arguments (Parts IV
- and V, respectively). As to those sections, I concur only
- in the judgment of the Court.
- I have previously recorded my view that the Commerce
- Clause contains no -negative- component, no self-operative
- prohibition upon the States' regulation of commerce. -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); see also American Trucking
- Assns., Inc. v. Smith, 496 U. S. 167, 202-203 (1990)
- (Scalia, J., concurring in judgment). On stare decisis
- grounds, however, I will enforce a self-executing, -nega-
- tive- Commerce Clause in two circumstances: (1) against
- a state law that facially discriminates against interstate
- commerce, and (2) against a state law that is indistin-
- guishable from a type of law previously held unconstitu-
- tional by this Court. These acknowledgments of prece-
- dent serve the principal purposes of stare decisis, which
- are to protect reliance interests and to foster stability in
- the law. I do not believe, however, that either of those
- purposes is significantly furthered by continuing to apply
- the vague and open-ended tests that are the current
- content of our negative-Commerce-Clause jurisprudence,
- such the four-factor test set forth in Complete Auto
- Transit, Inc. v. Brady, 430 U. S. 274, 279 (1977), or the
- -balancing- approach of Pike v. Bruce Church, Inc., 397
- U. S. 137 (1970). Unlike the prohibition on rank discrimi-
- nation against interstate commerce, which has long and
- consistently appeared in the precedents of this Court, see
- New Energy Co. of Indiana v. Limbach, 486 U. S. 269,
- 273 (1988), those tests are merely the latest in a series
- of doctrines that we have successively applied, and succes-
- sively discarded, over the years, to invalidate nondiscrimi-
- natory state taxation and regulation-including, for
- example, the -original package- doctrine, see Leisy v.
- Hardin, 135 U. S. 100 (1890), the -uniformity- test, see
- Case of the State Freight Tax, 15 Wall. 232, 279-280
- (1873), cf. Cooley v. Board of Wardens of Port of Philadel-
- phia, 12 How. 299, 319 (1852), the -directness- test, see
- Hall v. DeCuir, 95 U. S. 485, 488-489 (1878), and the
- -privilege of doing interstate business- rule, see Spector
- Motor Service, Inc. v. O'Connor, 340 U. S. 602, 609 (1951).
- Like almost all their predecessors, these latest tests are
- so uncertain in their application (and in their anticipated
- life-span) that they can hardly be said to foster stability
- or to engender reliance deserving of stare decisis protec-
- tion.
- I have not hitherto had occasion to consider an asserted
- application of the negative Commerce Clause to commerce
- -with foreign Nations--as opposed to commerce -among
- the several States--but the basic point that the Com-
- merce Clause is a power conferred upon Congress (and not
- a power denied to the States) obviously applies to all
- portions of the Clause. I assume that, for reasons of stare
- decisis, I must apply the same categorical prohibition
- against laws that facially discriminate against foreign
- commerce as I do against laws that facially discriminate
- against interstate commerce-though it may be that the
- rule is not as deeply rooted in our precedents for the
- former field. I need not reach that issue in the present
- case, since the Tennessee tax is nothing more than a
- garden-variety state sales tax that clearly does not dis-
- criminate against foreign commerce. As with the Inter-
- state Commerce Clause, however, stare decisis cannot bind
- me to a completely indeterminate test such as the -four-
- factored test plus two- found in Japan Line, Ltd. v.
- County of Los Angeles, 441 U. S. 434, 446-451 (1979),
- which combines Complete Auto with two additional tests.
- Japan Line, like Complete Auto and Pike, ultimately
- asks courts to make policy judgments-essentially, wheth-
- er nondiscriminatory state regulations of various sorts are
- -worth- their effects upon interstate or foreign commerce.
- One element of Japan Line, however, the so-called -speak
- with one voice- test, has a peculiar effect that underscores
- the inappropriateness of our engagement in this enterprise
- of applying a negative Commerce Clause. Applied literal-
- ly, this test would always be satisfied, since no state law
- can ever actually -prevent this Nation from `speaking with
- one voice' in regulating foreign commerce,- Japan Line,
- supra, at 451 (emphasis added), or -interfere with [the
- United States'] ability `to speak with one voice,'- Brief for
- United States as Amicus Curiae 24 (emphasis added).
- The National Government can always explictly pre-empt
- the offending state law. What, then, does the -one voice-
- test mean? Today, the Court relies on two considerations
- in determining that Tennessee's tax passes it: (1) that
- federal treaties, statutes and regulations restrict a State's
- ability to tax containers in certain defined circumstances,
- and the state tax here does not fall within those proscrip-
- tions; and (2) that the Government has filed an amicus
- brief in support of the State. Ante, at 14-15. The first
- of these considerations, however, does not distinguish the
- ad valorem property tax invalidated in Japan Line, which
- would also not violate the Container Conventions or the
- relevant federal statutes and regulations as construed in
- today's opinion, ante, at 4, 10. The second consideration
- does distinguish Japan Line, and it thus appears that a
- ruling on the constitutionality of a state law ultimately
- turns on the position of the Executive Branch. Having
- appropriated a power of Congress for its own use, the
- Court now finds itself, at least in the area of foreign
- commerce, incompetent to wield that power, and passes
- it off (out of -due regard- for foreign-policy expertise) to
- the President. Ante, at 15. I certainly agree that he is
- better able to decide than we are which state regulatory
- interests should currently be subordinated to our national
- interest in foreign commerce. Under the Constitution,
- however, neither he nor we were to make that decision,
- but only the Congress.
- Petitioner's Import-Export Clause challenge is, for me,
- a more difficult matter. It has firm basis in a constitu-
- tional text that cannot be avoided by showing that the tax
- on imports and exports is nondiscriminatory. See Rich-
- field Oil Corp. v. State Bd. of Equalization, 329 U. S. 69,
- 76 (1946). To come within this constitutional exemption,
- however, the taxed good must be either an import or an
- export -at the time that the tax accrued.- Id., at 78. I
- do not think a good can be an export when it will be used
- in this country, for its designed purpose, before being
- shipped abroad. In Richfield, the Court held that Califor-
- nia could not impose its nondiscriminatory sales tax on
- a shipment of oil that was being exported to New Zea-
- land. The tax accrued upon the delivery of the oil to the
- purchaser, which was accomplished by pumping the oil
- into the hold of the vessel that would transport it over-
- seas. The Richfield Court noted not only that no portion
- of the oil was -used or consumed in the United States,-
- id., at 71, but also that -there was nothing equivocal in
- the transaction which created even a probability that the
- oil would be diverted to domestic use,- id., at 83. With
- respect to the containers at issue in the present case, by
- contrast, it was entirely certain that after the time at
- which the tax accrued (viz., upon delivery of the empty
- containers to the lessee) they would be used in this
- country, to be loaded with goods for export. See Brief for
- Petitioner 7 (-[E]ach [leased] container initially was used
- to export American goods to foreign ports-). It could not
- be said, when the tax attached, that -the process of [their]
- exportation ha[d] started.- Richfield, supra, at 82.
- Because I find that the containers at issue were not
- protected by the Import-Export Clause, I need not consider
- whether the Tennessee tax would satisfy the test set forth
- in Michelin Tire Corp. v. Wages, 423 U. S. 276 (1976).
- For the reasons stated, I concur in the Court's conclu-
- sion that Tennessee's tax is not unconstitutional under the
- Foreign Commerce Clause or the Import-Export Clause.
-