Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 46 (1997)

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Cite as: 520 U. S. 564 (1997)

Thomas, J., dissenting

out of State. A State that provides a tax exemption for real property used exclusively for the purpose of feeding the poor must provide an exemption for the facilities of an organization devoted exclusively to feeding the poor in another country. These results may well be in accord with the parable of the Good Samaritan, but they have nothing to do with the Commerce Clause.

I respectfully dissent.

Justice Thomas, with whom Justice Scalia joins, and with whom The Chief Justice joins as to Part I, dissenting.

The tax at issue here is a tax on real estate, the quintessential asset that does not move in interstate commerce. Maine exempts from its otherwise generally applicable property tax, and thereby subsidizes, certain charitable organizations that provide the bulk of their charity to Maine's own residents. By invalidating Maine's tax assessment on the real property of charitable organizations primarily serving non-Maine residents, because of the tax's alleged indirect effect on interstate commerce, the majority has essentially created a "dormant" Necessary and Proper Clause to supplement the "dormant" Commerce Clause. This move works a significant, unwarranted, and, in my view, improvident expansion in our "dormant," or "negative," Commerce Clause jurisprudence.1 For that reason, I join Justice Scalia's dissenting opinion.

1 Although the terms "dormant" and "negative" have often been used interchangeably to describe our jurisprudence in this area, I believe "negative" is the more appropriate term. See Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U. S. 175, 200 (1995) (Scalia, J., joined by Thomas, J., concurring in judgment) ("[T]he 'negative Commerce Clause' . . . is 'negative' not only because it negates state regulation of commerce, but also because it does not appear in the Constitution"). There is, quite frankly, nothing "dormant" about our jurisprudence in this area. See Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L. J. 425, 425, n. 1 (1982).

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