332
Opinion of O'Connor, J.
and concurring in judgment), "I will enforce a self-executing, 'negative' Commerce Clause in two circumstances: (1) against a state law that facially discriminates against interstate [or foreign] commerce, and (2) against a state law that is indistinguishable from a type of law previously held unconstitutional by this Court." Id., at 78-79 (footnote omitted). Absent one of these circumstances, I will permit the States to employ whatever means of taxation they choose insofar as the Commerce Clause is concerned. Neither circumstance exists here, and the California tax therefore survives Commerce Clause attack.
I am not sure that the Court's opinion today, which requires no more than legislative inaction to establish that "Congress implicitly has permitted" the States to impose a particular restriction on foreign commerce, ante, at 326, will prove much different from my approach in its consequences. It is, moreover, an unquestionable improvement over Itel: whereas the "speak with one voice" analysis of that opinion gave the power to determine the constitutionality of a state law to the Executive Branch, see 507 U. S., at 80 (Scalia, J., concurring in part and concurring in judgment), today's opinion restores the power to Congress—albeit in a form that strangely permits it to be exercised by silence.
Justice O'Connor, with whom Justice Thomas joins, concurring in the judgment in part and dissenting in part.
I joined Justice Powell in dissent in Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159 (1983), and I continue to think the Court erred in upholding California's use of worldwide combined reporting in taxing the income of a domestic-based corporate group. But because the State and private parties have justifiably relied on the constitutionality of taxing such corporations, and Congress has not seen fit to override our decision, I agree with the Court that Container Corp. should not be overruled, cf. Quill Corp. v. North Dakota, 504 U. S. 298, 318-319 (1992), and that it
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