604
Scalia, J., dissenting
limiting state-provided welfare benefits to bona fide residents. As Justice Stevens once wrote for a unanimous Court: "Neither the overnight visitor, the unfriendly agent of a hostile power, the resident diplomat, nor the illegal entrant, can advance even a colorable claim to a share in the bounty that a conscientious sovereign makes available to its own citizens." Mathews v. Diaz, 426 U. S. 67, 80 (1976). States have restricted public assistance to their own bona fide residents since colonial times, see, M. Ierley, With Charity For All, Welfare and Society, Ancient Times to the Present 41 (1984), and such self-interested behavior (or, put more benignly, application of the principle that charity begins at home) is inherent in the very structure of our federal system, cf. Edgar v. MITE Corp., 457 U. S. 624, 644 (1982) ("[T]he State has no legitimate interest in protecting nonresi-dent[s]"). We have therefore upheld against equal protection challenge continuing residency requirements for municipal employment, see McCarthy v. Philadelphia Civil Serv. Comm'n, 424 U. S. 645 (1976) (per curiam), and bona fide
nondiscriminatory alternatives, which is what the exception to the "virtually per se rule of invalidity" requires. See Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93, 101 (1994) (quoting New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 278 (1988)). Surely, for example, our decision in Maine v. Taylor, 477 U. S. 131 (1986), which upheld Maine's regulatory ban on the importation of baitfish, would not have come out the other way if it had been shown that a state subsidy of sales of in-state baitfish could have achieved the same goal—by making the out-of-state fish noncompetitive and thereby excluding them from the market even more effectively than a difficult-to-police ban on importation. Where regulatory discrimination against out-of-state interests is appropriate, the negative Commerce Clause is not designed to push a State into nonregulatory discrimination instead. It permits state regulatory action disfavoring out-of-staters where disfavoring them is indispensable to the achievement of an important and nonprotectionist state objective. As applied to the present case: It is obviously impossible for a State to distribute social welfare benefits only to its residents without discriminating against nonresidents.
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