No. 93-1677

OKLAHOMA TAX COMMISSION, PETITIONER v. JEFFERSON LINES, INC.

on writ of certiorari to the united states court of appeals for the eighth circuit

[April 3, 1995]

Justice Scalia , with whom Justice Thomas joins, I would not apply the remainder of the eminently unhelpful, so called "four part test" of Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977). Under the real Commerce Clause ("The Congress shall have Power . . . To regulate Commerce . . . among the several States," U. S. Const., Art. I, §8), it is for Congress to make the judgment that interstate commerce must be immunized from certain sorts of nondiscriminatory state action--a judgment that may embrace (as ours ought

not) such imponderables as how much "value [is] fairly attributable to economic activity within the taxing State," and what constitutes "fair relation between a tax and the benefits conferred upon the taxpayer by the State." Ante, at 10, 24 (emphases added). See Tyler Pipe, supra, at 259. I look forward to the day when Complete Auto will take its rightful place in Part II of the Court's opinion, among the other useless and discarded tools of our negative Commerce Clause jurisprudence.