concurring.
The Commerce Clause of the Constitution provides that “Congress shall have power ... to regulate commerce . . . among the several States." I have believed, and still believe, that this provision means that Congress *387can regulate commerce and that the courts cannot. But in a series of cases decided in recent years this Court over my protest has held that the Commerce Clause justifies this Court in nullifying state legislation which this Court concludes imposes an “undue burden” on interstate commerce.1 I think that whether state legislation imposes an “undue burden” on interstate commerce raises pure questions of policy, which the Constitution intended should be resolved by the Congress.
Very recently a majority of this Court reasserted its power to invalidate state laws on the ground that such legislation put an undue burden on commerce. Nippert v. Richmond, supra; Southern Pacific Co. v. Arizona, supra. I thought then, and still believe, that in these cases the Court was assuming the role of a “super-legislature” in determining matters of governmental policy. Id., at 788, n. 4.
But the Court, at least for the present, seems committed to this interpretation of the Commerce Clause. In the Southern Pacific Company case, the Court, as I understand its opinion, found an “undue burden” because a State’s requirement for shorter trains increased the cost of railroad operations and thereby delayed interstate commerce and impaired its efficiency. In the Nippert case a small tax imposed on a sales solicitor employed by concerns located outside of Virginia was found to be an “undue burden” even though a solicitor for Virginia concerns engaged in the same business would have been required to pay the same tax.
So long as the Court remains committed to the “undue burden on commerce formula,” I must make decisions under it. The “burden on commerce” imposed by the *388Virginia law here under consideration seems to me to be of a far more serious nature than those of the Nippert or Southern Pacific Company cases. The Southern Pacific Company opinion, moreover, relied in part on the rule announced in Hall v. DeCuir, 95 U. S. 485, which case held that the Commerce Clause prohibits a state from passing laws which require that “on one side of a State line . . . passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate.” The Court further said that “uniformity in the regulations by which ... [a carrier] is to be governed from one end to the other of his route is a necessity in his business” and that it was the responsibility of Congress, not the states, to determine “what such regulations shall be.” The “undue burden on commerce formula” consequently requires the majority’s decision. In view of the Court’s present disposition to apply that formula, I acquiesce.
Nippert v. Richmond, 327 U. S. 416; Southern Pacific Co. v. Arizona, 325 U. S. 761; McCarroll v. Dixie Greyhound Lines, 309 U. S. 176; Gwin, White & Prince v. Henneford, 305 U. S. 434; Adams Mfg. Co. v. Storen, 304 U. S. 307.