concurring.
I am pleased to join Judge Fairchild’s excellent opinion for the court. If anything, I think the problem here may be even simpler than he suggests. There really is no problem of discrimination at all except as may have been insinuated into the matter by United States v. County of Cook, Ill., 725 F.2d 1128 (7th Cir.1984) (which we now overrule). A question of discrimination may arise, for example, when a state legislature levies a tax more onerously on a taxpayer because that taxpayer is doing business with the United States. See, e.g., James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937). The theory is that such an indirect tax is a proxy for a forbidden direct tax against the United States.
*1444But no tax can be levied against the United States without its consent. M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819). Consent, not absence of “discrimination,” is the key to constitutionality. Here Congress clearly authorized a direct tax on certain federal property. And it did so without condition. Certainly there was no condition that the state also refrain from taxing comparable property. To find such a condition is to do violence to the language and to look in vain for a rational supporting policy.1 I am, therefore, in complete agreement with the majority.
. The dissent quotes the district court's observation that the legislative history of ¶ 500.9a "reveals the clear intent of the Illinois legislature to 'get at’ the federal government and overcome its tax immunity.” Dissent at 1445-46. I am unable to see the Illinois legislative intent as nefarious — or even relevant — given that Congress had long since freely and deliberately waived its immunity for the benefit of Illinois and other states.
Nor do I quite understand the dissent’s attempt (at pages 1447-48) to collapse the doctrine of intergovernmental tax immunity, stemming from the Supremacy Clause, see M’Culloch, 17 U.S. (4 Wheat.) at 316, into the more general doctrine of federal sovereign immunity, which notoriously lacks a home in the Constitution's text, see generally Kennecott Copper Corp. v. Tax Comm'n, 327 U.S. 573, 580, 66 S.Ct. 745, 748-49, 90 L.Ed. 862 (1946) (Frankfurter, J., dissenting). Of course, I do not particularly quarrel with the contention that, despite the distinct lineages of these two doctrines, comparable formulations of their waiver standards may apply. But in any case the waiver of the immunity (however understood) given in 40 U.S.C. § 602a(d) (property "shall be subject to State and local taxes”) seems sufficiently "clear, express and affirmative” to satisfy any standard.