Opinion

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE POWELL join, dissenting.

In finding Pennsylvania's "flat" highway use taxes unconstitutional under the Commerce Clause, the Court today directly overrules the holdings of at least three cases: Capitol Greyhound Lines v. Brice, 339 U. S. 542 (1950); Aero Mayflower Transit Corp. v. Board of Railroad Comm'rs, 332 U. S. 495 (1947); and Aero Mayflower Transit Co. v. Georgia Public Service Comm'n, 295 U. S. 285 (1935). These cases were apparently cited with approval as recently as Massachusetts v. United States, 435 U. S. 444, 435 U. S. 463 -464 (1978), and Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U. S. 707, 405 U. S. 715 -717 (1972). In Massachusetts, the opinion states:

[W]e turn to consider the Commonwealth's argument that § 4491 should not be treated as a user fee, because the amount of the tax is a flat annual fee, and hence is not directly related to the degree of use of the airways. This argument has been confronted and rejected in analogous contexts. Capitol Greyhound Lines v. Brice, 339 U. S. 542 (1950) is illustrative.... Noting that the tax 'should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted,' id. at 339 U. S. 545, the Court rejected the carrier's argument: Complete fairness would require that a state tax formula vary with every factor affecting appropriate compensationfor road use. These factors, like those relevant in considering the constitutionality of other state taxes, are so countless that we must be content with 'rough approximation, rather than precision.'... Each additional factor adds to administrative burdens of enforcement, which fall alike on taxpayers and government. We have recognized that such burdens may be sufficient to justify states in ignoring even such a key factor as mileage, although the result may be a tax which, on its face, appears to bear with unequal weight upon different carriers.... Upon this type of reasoning rests our general rule that taxes like that of Maryland here are valid unless the amount is shown to be in excess of fair compensation for the privilege of using state roads. Id. at 339 U. S. 546 -547. (Citations and footnotes omitted). See also Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U. S. 495 (1947)....

Massachusetts v. United States, supra, at 435 U. S. 463 -464.

I am aware of the substantially contemporaneous criticism of the Aero Mayflower line of decisions. See, e.g., Capitol Greyhound Lines v. Brice, supra, at 339 U. S. 548 -560 (Frankfurter, J., dissenting); Brown, The Open Economy: Justice Frankfurter and the Position of the Judiciary, 67 Yale L.J. 219, 232 (1957); Lockhart, State Tax Barriers to Interstate Trade, 53 Harv.L.Rev. 1253, 1267-1270 (1940). Flat highway use taxes may potentially pose a serious practical burden for interstate commerce. See ante at 483 U. S. 284 -287. Certainly, as a matter of first impression, the constitutionality of flat highway use taxes could have been resolved differently. Nonetheless, this particular issue has been settled now for over 50 years, and Congress has not seen fit to preempt these taxes by exercising its commerce power, though, of course, it has had recent occasion to consider and reconsider the problems of the trucking industry. See Motor Carrier Act of 1980, 94 Stat. 793 et seq., as amended, 49 U.S.C. § 10101 et seq.; see generally Thoms, Rollin' On... To a Free Market: Motor Carrier Regulation 1935-1980, 13 Trans.L.J. 43 (1983). If and when the practical problems that the Court envisions occur, Congress may correct them. Indeed, as the Brief for State of Vermont as Amicus Curiae 3-8 sets out in some detail, Congress, the Executive, and the States have, in fact, recently and actively considered the issue. See H.R. 4518, 98th Cong., 1st Sess. (1983); Surface Transportation Issues: Hearings before the Subcommittee on Surface Transportation of the House Committee on Public Works and Transportation, 98th Cong., 2d Sess. (1984) (hereinafter 1984 Hearings); Oversight of the Motor Carrier Act of 1980: Hearings before the Subcommittee on Surface Transportation of the House Committee on Public Works and Transportation, 98th Cong., 1st Sess. (1983). Federal action has been deferred while the National Governors' Association attempts to develop uniform national standards for taxation of interstate motor carriers. 1984 Hearings 1201-1213; see National Governors' Association Center for Policy Research, An Experiment in Federalism: Can the States Improve the Interstate Motor Carrier Taxation System?, Capital Ideas (Feb. 1, 1986).

In the meantime, the reliance interest sought to be protected by the doctrine of stare decisis has grown up around the settled rule. For example, Pennsylvania has collected some $300 million in axle taxes to be spent on highway improvements that, of course, largely benefit the interstate trucking industry. Brief for Appellees 7. In my view, Pennsylvania, in structuring its program for financing highway construction and repair, had every reason to rely upon the settled understanding that flat highway taxes reasonably related to the extent of the benefit conferred do not violate the Commerce Clause. Similarly, Arkansas, appearing as amicus curiae here, opened its highways to the heaviest trucks only upon the understanding that it might collect sufficient revenue from those trucks by means of flat taxes to compensate for the damage they do to its roads. See American Trucking Assns., Inc. v. Gray, 288 Ark. 488, 503-504, 707 S.W.2d 759, 766-767 (1986), cert. pending, No. 86-358. If this flat tax is also unconstitutional, then Arkansas is left with the damage, but without the taxes. Brief for State of Arkansas as Amicus Curiae 6 (estimating incremental damage by heavy trucks at $53 million annually). In light of these reliance interests, in my view, if a new rule is to be declared, Congress should do it. Capitol Greyhound Lines v. Brice, 339 U.S. at 339 U. S. 547.

The Court's suggestion, ante at 483 U. S. 294 -296, that the Aero Mayflower line of cases is somehow intimately bound up with the rule of Spector Motor Service, Inc. v. O'Connor, 340 U. S. 602 (1951), and therefore was overruled sub silentio along with Spector in Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977), is easily refuted. The fact of the matter is that Spector and Complete Auto Transit involved a state tax on the privilege of doing business, an entirely different form of state taxation, that Spector found that form of taxation unconstitutional, and therefore had to distinguish the Aero Mayflower line of decisions, see Spector Motor Service, Inc. v. O'Connor, supra, at 340 U. S. 607, and n. 4, and that this Court explicitly relied on the Aero Mayflower line after Complete Auto Transit in Massachusetts v. United States, 435 U.S. at 435 U. S. 463 -464. Similarly, the Court's reliance upon Nippert v. Richmond, 327 U. S. 416 (1946), is inappropriate. Again a somewhat different form of taxation was involved in Nippert, and the case predates both Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U. S. 495 (1947), and Capitol Greyhound Lines v. Brice, supra.

Appellants argue that circumstances have so substantially changed since the days of Aero Mayflower and its progeny that the cases, even if they had some basis when they were decided, have no basis now. They point to the growth of the interstate trucking industry and the increased reliance on mileage apportioned taxes in our time, and argue that presently the extent of the burden on interstate commerce is greater, and the administrative inconvenience associated with apportioned taxes less. These arguments are not without some force. Significantly changed circumstances can make an older rule, defensible when formulated, inappropriate, and we have reconsidered cases in the dormant Commerce Clause area before. See, e.g., Commonwealth Edison Co. v. Montana, 453 U. S. 609, 453 U. S. 614 -617 (1981), disapproving statements in Heisler v. Thomas Colliery Co., 260 U. S. 245 (1922); Hughes v. Oklahoma, 441 U. S. 322, 441 U. S. 326 -336 (1979), overruling Geer v. Connecticut, 161 U. S. 519 (1896); Complete Auto Transit, Inc., supra, at 430 U. S. 278 -289, overruling Spector Motor Service, Inc., supra. But the changes that appellants point to are of degree, not kind. Interstate trucking and mileage-based taxes were certainly not oddities when Capitol Greyhound Lines v. Brice, supra, was decided in 1950. See, e.g., Interstate Busses Corp. v. Blodgett, 276 U. S. 245 (1928) (upholding mileage-based tax and noting existence of fuel tax). Indeed, the substantial contemporaneous criticism of the Aero Mayflower line of cases makes clear that the potential burden on interstate commerce that flat taxes posed, and the existence of feasible alternatives, were fully understood at the time these cases were decided. In short, I do not believe that the evolutionary changes we have seen in the trucking industry are substantial enough to defeat the strong stare decisis concerns, and the resulting reliance interests of the States, present here.

Neither does Armco Inc. v. Hardesty, 467 U. S. 638 (1984), dictate a different result. The West Virginia taxation scheme in that case, on its face, discriminated against out-of-state manufacturers:

if the property was manufactured in the State, no tax on the sale is imposed. If the property was manufactured out of the State and imported for sale, a tax of 0.27% is imposed on the sale price.

Id. at 467 U. S. 642. Since this facially discriminatory tax could not be justified under the compensatory tax doctrine, id. at 467 U. S. 642 -643, it was held unconstitutional. See Maryland v. Louisiana, 451 U.S. 725, 451 U. S. 758 -760 (1981). There is nothing in Armco to suggest that the Aero Mayflower line of cases was being implicitly disapproved, or even that these cases were considered at all relevant to the case before the Court. Nor do I read Armco as establishing a grandiose version of the "internal consistency test" as the constitutional measure of all state taxes under the Commerce Clause. See ante at 483 U. S. 282 -284; cf. Tyler Pipe Industries, Inc. v. Washington Dept. of Revenue, ante at 483 U. S. 254 -259 (SCALIA, J., dissenting). In my view, the fact that the tax in Armco was facially discriminatory sufficiently supports holding that tax invalid under the Commerce Clause. At most, Armco may be read for the proposition that a tax that is facially discriminatory is unconstitutional if it is not "internally consistent." In no way does it stand for the proposition that nondiscriminatory state taxes must also generally be "internally consistent" to pass constitutional muster. Creating an "internal consistency" rule of general application is an entirely novel enterprise that the Court undertakes for the first time in this case. Yet the Court gives no reason why such a rule is necessary or desirable, nor does it discuss the views of the lower courts or commentators. Indeed, the limited scholarly work on general application of the internal consistency test is largely negative. See, e.g., Judson & Duffy, An Opportunity Missed: Armco, Inc. v. Hardesty, A Retreat From Economic Reality in Analysis of State Taxes, 87 W.Va.L.Rev. 723, 739-740 (1985); Lathrop, Armco -A Narrow and Puzzling Test for Discriminatory State Taxes Under the Commerce Clause, 63 Taxes 551, 557 (1985). I am simply unwilling to follow the Court down this path without some greater understanding of the need, and authority, for doing so. I respectfully dissent.