448
Opinion of Breyer, J.
U. S. C. § 1443; Maryland v. Soper (No. 1), 270 U. S. 9, 33 (1926); Willingham v. Morgan, supra, at 407-409. What should defeat respondents here is that even though their federal defense is colorable, their claim to have acted in official capacity in not paying the fee is not.
* * *
For the foregoing reasons, I would hold that this case was improperly removed. In view, however, of the decision of a majority of the Court to reach the merits, I join Parts I, III, and IV of the Court's opinion. Cf. Edgar v. MITE Corp., 457 U. S. 624, 646 (1982) (Powell, J., concurring in part); United States v. Jorn, 400 U. S. 470, 488 (1971) (Black, J., concurring in judgment).
Justice Breyer, with whom Justice O'Connor joins, concurring in part and dissenting in part.
I agree that we have jurisdiction to hear the merits of this case, and I join Parts I, II, and III of the Court's opinion. I do not agree with the majority, however, about the constitutionality of the tax.
If Jefferson County's license fee amounts to a tax imposed directly upon a federal official's performance of his official duties, it runs afoul of the intergovernmental tax immunity doctrine. See United States v. New Mexico, 455 U. S. 720, 733 (1982) ("[A] State may not, consistent with the Supremacy Clause, U. S. Const., Art. VI, cl. 2, lay a tax 'directly upon the United States' " (citation omitted)); James v. Dravo Contracting Co., 302 U. S. 134, 157 (1937); e. g., Leslie Miller, Inc. v. Arkansas, 352 U. S. 187, 190 (1956) (per curiam) (" '[I]mmunity' " of federal " 'instruments' " from state control in performance of duties extends to state requirement that " 'they desist from performance' " until they take an examination to satisfy the State " 'that they are competent' " and " 'pay a fee for permission to go on' ") (quoting Johnson v. Maryland, 254 U. S. 51, 57 (1920)). On the other
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