Cite as: 512 U. S. 186 (1994)
Scalia, J., concurring in judgment
merce Clause. See, e. g., Guy v. Baltimore, 100 U. S. 434, 443 (1880). The second of them, "exemption" from or "credit" against a "neutral" tax, is no different in principle from the first, and has likewise been held invalid. See Maryland v. Louisiana, 451 U. S. 725, 756 (1981); Westinghouse Elec. Corp. v. Tully, 466 U. S. 388, 399-400, and n. 9 (1984). The fourth methodology, application of a state subsidy from general revenues, is so far removed from what we have hitherto held to be unconstitutional, that prohibiting it must be regarded as an extension of our negative-Commerce-Clause jurisprudence and therefore, to me, unacceptable. See New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 278 (1988). Indeed, in my view our negative-Commerce-Clause cases have already approved the use of such subsidies. See Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 809-810 (1976).
The issue before us in the present case is whether the
third of these methodologies must fall. Although the question is close, I conclude it would not be a principled point at which to disembark from the negative-Commerce-Clause train. The only difference between methodology (2) (discriminatory "exemption" from nondiscriminatory tax) and methodology (3) (discriminatory refund of nondiscriminatory tax) is that the money is taken and returned rather than simply left with the favored in-state taxpayer in the first place. The difference between (3) and (4), on the other hand, is the difference between assisting in-state industry through discriminatory taxation and assisting in-state industry by other means.
I would therefore allow a State to subsidize its domestic industry so long as it does so from nondiscriminatory taxes that go into the State's general revenue fund. Perhaps, as some commentators contend, that line comports with an important economic reality: A State is less likely to maintain a subsidy when its citizens perceive that the money (in the general fund) is available for any number of competing,
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