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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 93-1677
- --------
- OKLAHOMA TAX COMMISSION, PETITIONER v.
- JEFFERSON LINES, INC.
- on writ of certiorari to the united states court
- of appeals for the eighth circuit
- [April 3, 1995]
-
- Justice Scalia, with whom Justice Thomas joins,
- concurring in the judgment.
- I agree with the Court's conclusion that Oklahoma's
- sales tax does not facially discriminate against interstate
- commerce. See ante, at 24. That seems to me the most
- we can demand to certify compliance with the -negative
- Commerce Clause--which is -negative- not only because
- it negates state regulation of commerce, but also because
- it does not appear in the Constitution. See Amerada
- Hess Corp. v. Director, Division of Taxation, New Jersey
- Department of the Treasury, 490 U. S. 66, 80 (1989)
- (Scalia, J., concurring in judgment); Tyler Pipe Indus-
- tries, Inc. v. Washington State Dept. of Revenue, 483
- U. S. 232, 254, 259-265 (1987) (Scalia, J., concurring in
- part and dissenting in part).
- I would not apply the remainder of the eminently
- unhelpful, so-called -four-part test- of Complete Auto
- Transit, Inc. v. Brady, 430 U. S. 274, 279 (1977). Under
- the real Commerce Clause (-The Congress shall have
- Power . . . To regulate Commerce . . . among the several
- States,- U. S. Const., Art. I, 8), it is for Congress to
- make the judgment that interstate commerce must be
- immunized from certain sorts of nondiscriminatory state
- action-a judgment that may embrace (as ours ought
-
- not) such imponderables as how much -value [is] fairly
- attributable to economic activity within the taxing
- State,- and what constitutes -fair relation between a tax
- and the benefits conferred upon the taxpayer by the
- State.- Ante, at 10, 24 (emphases added). See Tyler
- Pipe, supra, at 259. I look forward to the day when
- Complete Auto will take its rightful place in Part II of
- the Court's opinion, among the other useless and
- discarded tools of our negative-Commerce-Clause juris-
- prudence.
-