312
Scalia, J., concurring
differential tax treatment of LDC and independent marketer sales does not facially discriminate against interstate commerce. And in any event, there is unquestionably a rational basis for Ohio's distinction between these two kinds of entities.
* * *
We conclude that Ohio's differential tax treatment of public utilities and independent marketers violates neither the Commerce Clause nor the Equal Protection Clause and that petitioner's claims are without merit otherwise. The judgment of the Supreme Court of Ohio is affirmed.
It is so ordered.
Justice Scalia, concurring.
I join the Court's opinion, which thoroughly explains why the Ohio tax scheme at issue in this case does not facially discriminate against interstate commerce. I write separately to note my continuing adherence to the view that the so-called "negative" Commerce Clause is an unjustified judicial invention, not to be expanded beyond its existing domain. "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).
I have previously stated that I will enforce on stare decisis grounds a "negative" self-executing Commerce Clause in two situations: (1) against a state law that facially discriminates against interstate commerce, and (2) against a state law that is indistinguishable from a type of law previously held unconstitutional by this Court. West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 210 (1994) (opinion concurring in judgment); Itel Containers Int'l Corp. v. Huddleston, 507 U. S. 60, 78 (1993) (opinion concurring in part and concurring in
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