674
Scalia, J., concurring in judgment
Where such conditions are satisfied—and I have little doubt that they are satisfied here—courts may raise the doctrine on their own motion. E. g., Williams Pipe Line Co. v. Empire Gas Corp., 76 F. 3d 1491, 1496 (CA10 1996). See also 5 J. Stein, G. Mitchell, & B. Mezines, Administrative Law § 47.01[1], pp. 47-5 to 47-6 (2002); 2 Federal Procedure: Lawyers Edition § 2:337, p. 373 (2003). A court may then stay its proceedings—for a limited time, if appropriate—to allow a party to initiate agency review. Western Pacific R. Co., supra, at 64; see also Wagner & Brown v. ANR Pipeline Co., 837 F. 2d 199, 206 (CA5 1988) (stay of limited duration). Lower courts have sometimes accompanied a stay with an injunction designed to preserve the status quo. E. g., Wheelabrator Corp. v. Chafee, 455 F. 2d 1306, 1316 (CADC 1971). And, in my view, even if Maine should choose not to obtain the Secretary's views on its own, the desirability of the District Court's having those views to consider, supra, at 672, is relevant to the "public interest" determination that often factors into whether a preliminary injunction should issue, see, e. g., MacDonald v. Chicago Park District, 132 F. 3d 355, 357 (CA7 1997); 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 131-133 (1995). But cf. Rosado, 397 U. S., at 406.
For these reasons, I concur in the Court's judgment and in major part in the plurality's opinion.
Justice Scalia, concurring in the judgment.
I would reject petitioner's negative-Commerce-Clause claim because the Maine statute under challenge is neither facially discriminatory against interstate commerce nor (as the Court explains, ante, at 668-670) similar to other state action that we have hitherto found invalid on negative-Commerce-Clause grounds; and because, as I have explained elsewhere, the negative Commerce Clause, having no foundation in the text of the Constitution and not lending itself to judicial application except in the invalidation of facially
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