208
Scalia, J., concurring in judgment
law here is unconstitutional because it "neutraliz[es] the advantage possessed by lower cost out-of-state producers"); ante, at 195 (price order is unconstitutional because it allows in-state producers "who produce at higher cost to sell at or below the price charged by lower cost out-of-state producers"); ante, at 196 (a state program is unconstitutional where it " 'neutralizes advantages belonging to the place of origin' ") (quoting Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 527 (1935)); ante, at 205 ("Preservation of local industry by protecting it from the rigors of interstate competition is the hallmark of the economic protectionism that the Commerce Clause prohibits").
As the Court seems to appreciate by its eagerness expressly to reserve the question of the constitutionality of subsidies for in-state industry, ante, at 199, and n. 15, this expansive view of the Commerce Clause calls into question a wide variety of state laws that have hitherto been thought permissible. It seems to me that a state subsidy would clearly be invalid under any formulation of the Court's guiding principle identified above. The Court guardedly asserts that a "pure subsidy funded out of general revenue ordinarily imposes no burden on interstate commerce, but merely assists local business," ante, at 199 (emphasis added), but under its analysis that must be taken to be true only because most local businesses (e. g., the local hardware store) are not competing with businesses out of State. The Court notes that, in funding this subsidy, Massachusetts has taxed milk produced in other States, and thus "not only assists local farmers, but burdens interstate commerce." Ibid. But the same could be said of almost all subsidies funded from general state revenues, which almost invariably include moneys from use taxes on out-of-state products. And even where the funding does not come in any part from taxes on out-of-state goods, "merely assist[ing]" in-state businesses, ibid., unquestionably neutralizes advantages possessed by out-of-state enterprises. Such subsidies, particularly where
Page: Index Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: October 4, 2007