610
Thomas, J., dissenting
I write separately, however, because I believe that the improper expansion undertaken today is possible only because our negative Commerce Clause jurisprudence, developed primarily to invalidate discriminatory state taxation of interstate commerce, was already both overbroad and unnecessary. It was overbroad because, unmoored from any constitutional text, it brought within the supervisory authority of the federal courts state action far afield from the discriminatory taxes it was primarily designed to check. It was unnecessary because the Constitution would seem to provide an express check on the States' power to levy certain discriminatory taxes on the commerce of other States—not in the judicially created negative Commerce Clause, but in the Art. I, § 10, Import-Export Clause, our decision in Wood-ruff v. Parham, 8 Wall. 123 (1869), notwithstanding. That the expansion effected by today's decision finds some support in the morass of our negative Commerce Clause case law only serves to highlight the need to abandon that failed jurisprudence and to consider restoring the original Import-Export Clause check on discriminatory state taxation to what appears to be its proper role. As I explain in Part III, the tax (and tax exemption) at issue in this case seems easily to survive Import-Export Clause scrutiny; I would therefore, in all likelihood, sustain Maine's tax under that Clause as well, were we to apply it instead of the judicially created negative Commerce Clause.
I
The negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application. See, e. g., Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S. 232, 259-265 (1987) (Scalia, J., dissenting); Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888, 895-898 (1988) (Scalia, J., concurring in judgment). In one fashion
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