Nos. 92-1384 and 92-1839

BARCLAYS BANK PLC, PETITIONER 92-1384 v. FRANCHISE TAX BOARD OF CALIFORNIA COLGATE PALMOLIVE COMPANY, PETITIONER 92-1839

on writs of certiorari to the court of appeal of california, third appellate district

[June 20, 1994]

Justice Scalia , concurring in part and concurring in As I stated last Term in Itel Containers Int'l Corp. v. Huddleston, 507 U. S. ___, ___ (1993) (Scalia, J., concurring in part and concurring in judgment), "I will enforce a self executing, `negative' Commerce Clause in two circumstances: (1) against a state law that facially discriminates against [interstate or foreign] commerce, and (2) against a state law that is indistinguishable from a type of law previously held unconstitutional by this Court." Id., at ___ (footnote omitted). Absent one of these circumstances, I will permit the States to employ whatever means of taxation they choose insofar as the Commerce Clause is concerned. Neither circumstance exists here, and the California tax therefore survives commerce clause attack.

I am not sure that the Court's opinion today, which requires no more than legislative inaction to establish that "Congress implicitly has permitted" the States to impose a particular restriction on foreign commerce, ante, at 28, will prove much different from my approach in its consequences. It is, moreover, an unquestionable improvement over Itel: whereas the "speak with one voice" analysis of that opinion gave the power to determine the constitutionality of a state law to the Executive Branch, see 507 U. S., at ___ (Scalia, J., concurring in part and concurring in judgment), today's opinion restores the power to Congress--albeit in a form that strangely permits it to be exercised by silence.