Cite as: 512 U. S. 186 (1994)
Scalia, J., concurring in judgment
they are in the form of cash or (what comes to the same thing) tax forgiveness, are often admitted to have as their purpose—indeed, are nationally advertised as having as their purpose—making it more profitable to conduct business in State than elsewhere, i. e., distorting normal market incentives.
The Court's guiding principle also appears to call into question many garden-variety state laws heretofore permissible under the negative Commerce Clause. A state law, for example, which requires, contrary to the industry practice, the use of recyclable packaging materials, favors local non-exporting producers, who do not have to establish an additional, separate packaging operation for in-state sales. If the Court's analysis is to be believed, such a law would be unconstitutional without regard to whether disruption of the "national market" is the real purpose of the restriction, and without the need to "balance" the importance of the state interests thereby pursued, see Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). These results would greatly extend the negative Commerce Clause beyond its current scope. If the Court does not intend these consequences, and does not want to foster needless litigation concerning them, it should not have adopted its expansive rationale. Another basis for deciding the case is available, which I proceed to discuss.
II
"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). Nonetheless, we formally adopted the doctrine of the negative Commerce Clause 121 years ago, see Case of the State Freight Tax, 15 Wall. 232 (1873), and since then have decided a vast number of negative-Commerce-Clause cases, engendering considerable reliance interests.
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