298
Opinion of the Court
that Ohio's differential tax treatment of natural gas utilities and independent marketers violates our " 'virtually per se rule of invalidity,' " Associated Industries of Mo. v. Lohman, 511 U. S. 641, 647 (1994) (quoting Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978)), prohibiting facial discrimination against interstate commerce.
A
Conceptually, of course, any notion of discrimination12
assumes a comparison of substantially similar entities. Al-12 Although GMC raises only a "facial discrimination" challenge to Ohio's tax scheme, our cases have indicated that even nondiscriminatory state legislation may be invalid under the dormant Commerce Clause, when, in the words of the so-called Pike undue burden test, "the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits," Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). There is, however, no clear line between these two strands of analysis, Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 579 (1986), and several cases that have purported to apply the undue burden test (including Pike itself) arguably turned in whole or in part on the discriminatory character of the challenged state regulations, see, e. g., Pike, supra, at 145 (declaring packing order "virtually per se illegal" because it required business operation to be performed in-state); Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662, 677 (1981) (plurality opinion of Powell, J.) (noting that in adopting invalidated truck-length regulation the State "seems to have hoped to limit the use of its highways by deflecting some through traffic"); id., at 679-687 (Brennan, J., concurring in judgment) (emphasizing that truck-length regulation should be invalidated solely in view of its protectionist purpose); see generally Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091 (1986). Nonetheless, a small number of our cases have invalidated state laws under the dormant Commerce Clause that appear to have been genuinely nondiscriminatory, in the sense that they did not impose disparate treatment on similarly situated in-state and out-of-state interests, where such laws undermined a compelling need for national uniformity in regulation. See Bibb v. Navajo Freight Lines, Inc., 359 U. S. 520 (1959) (conflict in state laws governing truck mud flaps); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761 (1945) (train lengths); see also CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 88 (1987) ("This Court's recent
Page: Index Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: October 4, 2007