Cite as: 507 U. S. 60 (1993)
Opinion of Scalia, J.
ment 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 75-76. 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 65-66, 71. 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 76. 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 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 on imports and exports is nondiscriminatory.3 See Richfield 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
3 The Import-Export Clause provides: "No State shall, without the Consent 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, § 10, cl. 2.
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