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SUPREME COURT OF THE UNITED STATES
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No. 91-321
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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, "negative" Commerce Clause in
two circumstances: (1) against a state law that facially discriminates against
interstate 91-321 - CONCUR
2 ITEL CONTAINERS INT'L CORP. v. HUDDLESTON ____
commerce, (Ftnote. 1) and (2) against a state law that is indistinguishable from (Ftnote. 1)
a type of law previously held unconstitutional by this
Court. (Ftnote. 2) These acknowledgments of precedent serve the principal (Ftnote. 2)
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 discrimination____
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 successively discarded, over the years, to
invalidate nondiscriminatory 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 Philadelphia, 12 How. ______ ________________________________________
299, 319 (1852), the "directness" test, see Hall v. DeCuir, 95 U. S. 485, ____ ______
488-489 (1878), and the
____________________
1) See Healy v. The Beer Institute, 491 U. S. 324, 344 (1989) (SCALIA, J., 1) _____ __________________
concurring in part and concurring in judgment); New Energy Co. of Indiana v. _________________________
Limbach, 486 U. S. 269 (1988); Trinova Corp. v. Michigan Dept. of Treasury, 498_______ _____________ __________________________
U. S. 358, 387 (1991) (SCALIA, J., concurring in judgment); Amerada Hess Corp. __________________
v. Director, Div. of Taxation, N.J. Dept. of Treasury, 490 U. S. 66, 80 (1989) __________________________________________________
(SCALIA, J., concurring in judgment); American Trucking Assns., Inc. v. ______________________________
Scheiner, 483 U. S. 266, 304 (1987) (SCALIA, J., dissenting).________
2) See American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 204 (1990); 2) ______________________________ _____
Quill Corp. v. North Dakota, 504 U. S. ___, ___ (1992) (SCALIA, J., concurring___________ ____________
in part and concurring in judgment) (slip op., at 2). 91-321 - CONCUR
ITEL CONTAINERS INT'L CORP. v. HUDDLESTON 3 ____
"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 protection. _____________
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 Commerce
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 discriminate against
foreign commerce. As with the Interstate 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, whether 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 literally, this test
would always be satisfied, since no state law 91-321 - CONCUR
4 ITEL CONTAINERS INT'L CORP. v. HUDDLESTON ____
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 proscriptions;
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 constitutional text that cannot be avoided by
showing that the tax 91-321 - CONCUR
ITEL CONTAINERS INT'L CORP. v. HUDDLESTON 5 ____
on imports and exports is nondiscriminatory. (Ftnote. 3) See Richfield Oil (Ftnote. 3) _____________
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 _________
California could not impose its nondiscriminatory sales tax on a shipment of oil
that was being exported to New Zealand. 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 overseas. 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-
____________________
3) The Import-Export Clause provides: "No State shall, without the Consent 3)
of the Congress, lay any Imposts or Duties on Imports or Exports, except what
may be absolutely necessary for executing its inspection laws . . . ." U. S.
Const., Art. I, S10, cl. 2. 91-321 - CONCUR
6 ITEL CONTAINERS INT'L CORP. v. HUDDLESTON ____
sion that Tennessee's tax is not unconstitutional under the Foreign Commerce
Clause or the Import-Export Clause.