618
Thomas, J., dissenting
the actual letter, of the Constitution. Thus, in one of our early uses of the negative Commerce Clause, we invalidated a state tax on the privilege of selling goods "which are not the growth, produce, or manufacture of the State." Welton v. Missouri, 91 U. S., at 278. And in Cook v. Pennsylvania, 97 U. S. 566 (1878), we struck down a state tax on out-of-state goods sold at auction. See also, e. g., I. M. Darnell & Son Co. v. Memphis, 208 U. S. 113 (1908); Voight v. Wright, 141 U. S. 62 (1891); Walling v. Michigan, 116 U. S. 446 (1886); Webber v. Virginia, 103 U. S. 344 (1881). To this day, we find discriminatory state taxes on out-of-state goods to be "virtually per se invalid" under our negative Commerce Clause. See, e. g., West Lynn Creamery, Inc. v. Healy, 512 U. S. 186 (1994); Associated Industries of Mo. v. Lohman, 511 U. S. 641 (1994); New Energy Co. of Ind. v. Limbach, 486 U. S. 269 (1988); Maryland v. Louisiana, 451 U. S. 725 (1981). Though each of these cases reached what intuitively seemed to be a desirable result—and in some cases arguably was the constitutionally correct result, as I describe below—the negative Commerce Clause rationale upon which they rested remains unsettling because of that rationale's lack of a textual basis.
Moreover, our negative Commerce Clause jurisprudence has taken us well beyond the invalidation of obviously discriminatory taxes on interstate commerce. We have used the Clause to make policy-laden judgments that we are ill equipped and arguably unauthorized to make. See Moor-man Mfg. Co. v. Bair, 437 U. S. 267, 278-280 (1978) (recognizing that establishing a formula for apportioning taxes on multistate corporations would require "extensive judicial lawmaking" for which the courts are ill suited). In so doing, we have developed multifactor tests in order to assess the perceived "effect" any particular state tax or regulation has on interstate commerce. See Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977); see also Quill Corp. v. North
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