422
Souter, J., dissenting
from the virtually fatal scrutiny imposed in those earlier cases. I believe they do.
The justification for subjecting the local processing laws and the broader class of clearly discriminatory commercial regulation to near-fatal scrutiny is the virtual certainty that such laws, at least in their discriminatory aspect, serve no legitimate, nonprotectionist purpose. See Philadelphia v. New Jersey, 437 U. S., at 624 ("[W]here simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected").11 Whether we find "the evil of protectionism," id., at 626, in the clear import of specific statutory provisions or in the legislature's ultimate purpose, the discriminatory scheme is almost always designed either to favor local industry, as such, or to achieve some other goal while exporting a disproportionate share of the burden of attaining it, which is merely a subtler form of local favoritism, id., at 626-628.
On the other hand, in a market served by a municipal facility, a law that favors that single facility over all others is a law that favors the public sector over all private-sector processors, whether local or out of State. Because the favor does not go to local private competitors of out-of-state firms, out-of-state governments will at the least lack a motive to favor their own firms in order to equalize the positions of private competitors. While a preference in favor of the government may incidentally function as local favoritism as well, a more particularized enquiry is necessary before a court can say whether such a law does in fact smack too strongly of economic protectionism. If Local Law 9 is to be struck down, in other words, it must be under that test most readily
11 For the rare occasion when discriminatory laws are the best vehicle for furthering a legitimate state interest, Maine v. Taylor, 477 U. S. 131 (1986), provides an exception, but we need not address that exception here because this ordinance is not subject to the presumption of unconstitutionality appropriate for protectionist legislation.
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