Colonial Pipeline Co. v. Traigle

Mb. Justice Blackmun,

with whom Mb. Justice Rehnquist joins, concurring in the judgment.

I share the misgivings that are suggested by Mb. Justice Stewabt in his dissent, but I join the judgment of the Court.

I am not at all satisfied that this Court’s decisions of the past 30 years, some of them by sharply divided votes, are so plain and so analytically consistent as the Court’s opinion would seem to imply. Thus, I find it difficult to reconcile Spector Motor Service v. O’Connor, 340 U. S. 602 (1951), with today’s holding. And if the present case had gone the other way, I would find it difficult to reconcile the judgment with Memphis Gas Co. v. Stone, 335 U. S. 80 (1948). If, however, the Court’s decisions of the past are consistent — and if there is consistency between what the Louisiana Legislature and that *115State’s courts have done in Colonial’s 1969 case and in the present one — then, for me, the legal distinctions this Court and the Louisiana courts (under the compulsion of our decisions) have drawn are too finespun and far too gossamer. They fail to provide what taxpayers and the lawyers who advise them have a right to expect, namely, a firm and solid basis of differentiation between that which runs afoul of the Commerce Clause, and that which is consistent with that Clause. It makes little constitutional sense — and certainly no practical sense — to say that a State may not impose a fairly apportioned, nondiscriminatory franchise tax with an adequate nexus upon the conduct of business in interstate commerce, but that it may impose that same tax upon the conduct of business in interstate commerce “in a corporate form” or, for that matter, in partnership or individual form. Tr. of Oral Arg. 28-31. Certainly to the lay mind, or to any mind other than the purely legal, these are distinctions with little substantive difference and this is taxation by semantics.

I therefore feel that the Court should face the issue and make the choice. I would make that choice in favor of Memphis Gas, as buttressed by the philosophy and holding of Northwestern Cement Co. v. Minnesota, 358 U. S. 450 (1959), and against Spector j Spector, it seems to me, is a derelict and an aberration,' and I would discard it. I would hold that in this day, when the realities of “Our Federalism”* have become apparent, and when the ability of our States and of the Federal Government to coexist have matured, a state franchise tax that does not threaten interstate commerce by being discriminatory, or unfairly apportioned, or devoid of sufficient nexus, passes constitutional muster under the Commerce Clause and may be imposed in the *116absence of congressional proscription. On this record, Louisiana's corporation franchise tax meets that standard.

Younger v. Harris, 401 U. S. 37, 44 (1971).