Cite as: 514 U. S. 175 (1995)
Breyer, J., dissenting
Revenue, 483 U. S. 232, 254, 259-265 (1987) (Scalia, J., concurring in part and dissenting in part).
I would not apply the remainder of the eminently unhelpful, so-called "four-part test" of Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 279 (1977). Under the real Commerce Clause ("The Congress shall have Power . . . To regulate Commerce . . . among the several States," U. S. Const., Art. I, § 8), it is for Congress to make the judgment that interstate commerce must be immunized from certain sorts of nondiscriminatory state action—a judgment that may embrace (as ours ought not) such imponderables as how much "value [is] fairly attributable to economic activity within the taxing State," and what constitutes "fair relation between a tax and the benefits conferred upon the taxpayer by the State." Ante, at 185, 199 (emphases added). See Tyler Pipe, supra, at 259. I look forward to the day when Complete Auto will take its rightful place in Part II of the Court's opinion, among the other useless and discarded tools of our negative Commerce Clause jurisprudence.
Justice Breyer, with whom Justice O'Connor joins, dissenting.
Despite the Court's lucid and thorough discussion of the relevant law, I am unable to join its conclusion for one simple reason. Like the judges of the Court of Appeals, I believe the tax at issue here and the tax that this Court held unconstitutional in Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653 (1948), are, for all relevant purposes, identical. Both cases involve taxes imposed upon interstate bus transportation. In neither case did the State apportion the tax to avoid taxing that portion of the interstate activity performed in other States. And, I find no other distinguishing features. Hence, I would hold that the tax before us violates the Constitution for the reasons this Court set forth in Central Greyhound.
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