Cite as: 520 U. S. 564 (1997)
Scalia, J., dissenting
Once having concluded that the statute is facially discriminatory, the Court rests. "[T]he Town," it asserts, "has made no effort to defend the statute under the per se rule." Ante, at 582. This seems to me a pointless technicality. The town of Harrison (Town) has asserted that the State's interest in encouraging private entities to shoulder part of its social-welfare burden validates this provision under the negative Commerce Clause. Whether it does so because the presence of that interest causes the resident-benefiting charities not to be "similarly situated" to the non-resident-benefiting charities, and hence negates "facial discrimination," or rather because the presence of that interest justifies "facial discrimination," is a question that is not only of no consequence but is also probably unanswerable. To strike down this statute because the Town's lawyers put the argument in one form rather than the other is truly senseless.2
If the Court were to proceed with that further analysis it would have to conclude, in my view, that this is one of those cases in which the "virtually per se rule of invalidity" does not apply. Facially discriminatory or not, the exemption is no more an artifice of economic protectionism than any state law which dispenses public assistance only to the State's residents.3 Our cases have always recognized the legitimacy of
2 I do not understand the Court's contention, ante, at 582, and n. 16, that Fulton Corp. v. Faulkner, 516 U. S. 325 (1996), provides precedent for such a course. In Fulton, the arguments left unaddressed had not been made in another form, but had not been made at all. There (unlike here) the State conceded facial discrimination, and relied exclusively on the compensatory tax defense, see id., at 333, which the Court found had not been made out, see id., at 344. That narrow defense could not possibly have been regarded as an invocation of broader policy justifications such as those asserted here.
3 In a footnote responding to this dissent, the Court does briefly address whether the statute fails the "virtually per se rule of invalidity." It concludes that it does fail because "Maine has ample alternatives short of a facially discriminatory property tax exemption," such as offering direct cash subsidies to parents of resident children or to camps that serve residents. Ante, at 582, n. 16. These are nonregulatory alternatives (and hence immune from negative Commerce Clause attack), but they are not
603
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