JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE KENNEDY, concluded that the Arkansas Supreme Court misapplied Chevron Oil in certain respects and, therefore, Scheiner applies to some taxation of highway use pursuant to the HUE tax. Thus, the case must be remanded to that court to determine appropriate relief in light of McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., ante, p. 18. Pp. 176-200. (a) Whether the State Supreme Court applied Chevron Oil correctly is a federal question. However, it is important to distinguish that question from the distinct remedial question at issue in McKesson. While the relief provided by the State from a tax statute held invalid under the Commerce Clause must be in accord with federal due process principles, see ante, at 36-43, 51-52, federal-state comity dictates that state courts have the initial duty of determining appropriate relief. Pp. 176179.

(b) Under Chevron Oil's three-factor nonretroactivity test, Scheiner does not apply to taxation of highway use prior to the date it was decided, June 23, 1987, for the HUE tax year ending June 30, 1987. First, Scheiner clearly established a new principle of law by expressly overruling those aspects of the Aero Mayflower line of cases on which Arkansas relied in enacting and assessing the HUE tax. In its original decision upholding the tax, the State Supreme Court correctly followed the Aero Mayflower cases rather than Complete Auto Transit, since the latter case only questioned the Aero Mayflower line, and this Court cited that line with approval in a decision subsequent to Complete Auto Transit, Massachusetts v. United States, 435 U. S. 444, 463-464. Second, the purpose of the Commerce Clause does not dictate retroactive application of Scheiner, since such application would not tend to deter future free trade violations by the States. The HUE tax when enacted was entirely consistent with the Aero Mayflower cases, and it is not the Clause's purpose to prevent legitimate state taxation of interstate commerce. Third, applying Scheiner retroactively would produce substantial inequitable results. Especially in light of McKesson's holding that a ruling that a tax is unconstitutional under the Commerce Clause places substantial obligations on the States to provide relief, invalidating the HUE tax has the potential for severely burdening the State's current operations and future plans. A refund, if required, could deplete the state treasury and entail potentially significant administrative costs, while retroactively increasing taxes on the favored taxpayers would also entail such administrative costs and could at some point run afoul of the Due Process Clause under McKesson, ante, at 40-41, n. 23. Where a State can easily foresee the invalidation of its tax statutes, the burden on state operations may merit little concern. See McKesson,

ante, at 44-46, 50. It is unjust, however, to impose this burden when the State relied on valid existing precedent in enacting and implementing its tax. Pp. 179–186.

(c) However, the conclusion that Scheiner applies only prospectively does not protect those HUE taxes paid to the State for the tax year beginning July 1, 1987. The State Supreme Court's refusal to order refunds for any 1987-1988 HUE taxes paid prior to JUSTICE BLACKMUN'S escrow order arose from a misapprehension of the force of Chevron Oil. Scheiner applies prospectively to the flat taxing of highway use after the date of that decision, regardless of when the taxes for such use were actually collected. Holding otherwise would result in similarly situated taxpayers receiving different remedies depending solely and fortuitously on the date they paid the tax. Pp. 186-188.

(d) The dissent's criticisms of this decision lack merit. First, the claim that this decision is unjust because it treats the taxpayers in this case differently from those in Scheiner is unpersuasive, since this case resolves a retroactivity question not considered in Scheiner, which was concerned only with a state court's ruling on the constitutionality of certain tax statutes and remanded for a determination of retroactivity and remedial issues. Second, the claim that this Court has consistently applied new decisions retroactively to civil cases which are pending on direct review is an inaccurate characterization, since a review of the Court's decisions shows that it has consistently applied the principles underlying the retroactivity doctrine enunciated in Chevron Oil rather than the approach suggested by the dissent. See, e. g., Cipriano v. City of Houma, 395 U. S. 701. Third, contrary to the dissent's assertion, this Court has never equated its retroactivity principles with remedial principles, but has instead considered nonretroactivity to be a doctrine for determining when past precedent should be applied to a case before the Court. As such, it is better understood as part of the doctrine of stare decisis, rather than part of the law of remedies. See, e. g., Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 364. Finally, the reasons for adopting a per se rule of retroactivity in criminal cases, see Griffith v. Kentucky, 479 U. S. 314—primarily, to provide expanded procedural protections to criminal defendants-are not applicable in the civil sphere, where nonretroactivity functions to avoid injustice or hardship to civil litigants who have justifiably relied on prior law, see, e. g., Chevron Oil, supra, at 107. These distinctions compel the rejection of the dissent's invitation to abandon the nonretroactivity doctrine in the civil arena as the Court did in the criminal arena. Pp. 188-200.

JUSTICE SCALIA concluded that prospective decisionmaking by the Court cannot be reconciled with the scope of the judicial power under

Article III. Nonetheless, because this Court's so-called “negative” Commerce Clause jurisprudence has no basis in the text of the Commerce Clause, see, e. g., American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 303-306 (SCALIA, J., concurring in part and dissenting in part), and because Scheiner was therefore wrongly decided, the only reason to apply Scheiner is the doctrine of stare decisis. The purpose underlying that doctrine, which is to protect settled expectations, justifies holding that Arkansas violated the Constitution in imposing its HUE tax after Scheiner was announced, but does not justify holding that Arkansas violated the Constitution in imposing its HUE tax before Scheiner overruled this Court's earlier cases on which Arkansas presumably relied. To apply Scheiner retroactively, solely in the name of stare decisis, would turn the purpose of stare decisis against itself. Accordingly, the decision below should be affirmed with respect to the preScheiner taxes and reversed with respect to the post-Scheiner taxes. Pp. 200-205.

O'CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and WHITE and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 200. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 205.

Andrew L. Frey reargued the cause for petitioners. With him on the briefs were Kenneth S. Geller, Mark I. Levy, Andrew J. Pincus, Peter G. Kumpe, Daniel R. Barney, Robert Digges, Jr., Laurie T. Baulig, and William S. Busker. A. Raymond Randolph reargued the cause for respondents. With him on the briefs were Daniel I. Prywes, Bruce R. Stewart, Herschel H. Friday, B. S. Clark, Robert S. Shafer, Robert L. Wilson, A. T. Goodloe II, and Christopher O. Parker.*

*Briefs of amici curiae urging reversal were filed for the Crow Tribe of Indians by Daniel M. Rosenfelt; for the Committee on State Taxation of the Council of State Chambers of Commerce by Jean A. Walker and William D. Peltz; for the National Private Truck Council, Inc., by Richard A. Allen and Robert A. Hirsch; and for the Tax Executives Institute, Inc., by Timothy J. McCormally.

Briefs of amici curiae urging affirmance were filed for the Commonwealth of Pennsylvania et al. by Ernest D. Preate, Jr., Attorney General of Pennsylvania, Bryan E. Barbin, Deputy Attorney General, John G. Knorr

167

Opinion of O'CONNOR, J.

JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE KENNEDY join.

In this case we decide whether our decision in American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987), applies retroactively to taxation of highway use prior to the date of that decision.

I

In 1983 petitioners brought suit in the Chancery Court of Pulaski County, Arkansas, challenging the constitutionality of the newly enacted Arkansas Highway Use Equalization Tax Act (HUE), 1983 Ark. Gen. Acts, No. 685, Ark. Code Ann. §§ 27-35-204, 27-35-205 (1987) (formerly codified as Ark. Stat. Ann. §§ 75-817.2, 75-817.3 (Supp. 1985)), under the Commerce Clause of the Federal Constitution, Art. I, §8, cl. 3. The HUE tax required trucks operating on Arkansas

III, Chief Deputy Attorney General, and Louis J. Rovelli, Executive Deputy Attorney General, and by the Attorneys General for their respective States as follows: Douglas B. Baily of Alaska, Duane Woodard of Colorado, Linley E. Pearson of Indiana, J. Joseph Curran, Jr., of Maryland, Hubert H. Humphrey III of Minnesota, Robert M. Spire of Nebraska, Brian McKay of Nevada, James E. O'Neil of Rhode Island, and Joseph B. Meyer of Wyoming; and for the National Conference of State Legislatures et al. by Benna Ruth Solomon and Charles Rothfeld.

Briefs of amici curiae were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, and Richard F. Finn, Supervising Deputy Attorney General, Eric J. Coffill, Jim Jones, Attorney General of Idaho, Marc Racicot, Attorney General of Montana, Nicholas J. Spaeth, Attorney General of North Dakota, Jim Mattox, Attorney General of Texas, and Paul Van Dam, Attorney General of Utah; for the State of Vermont et al. by Jeffrey L. Amestoy, Attorney General of Vermont, and Thomas R. Viall, Assistant Attorney General, Peter N. Perretti, Jr., Attorney General of New Jersey, and Mary R. Hamill, Deputy Attorney General, Clarine Nardi Riddle, Acting Attorney General of Connecticut, and Jane D. Comerford, Assistant Attorney General; and for the Transportation Cabinet of the Commonwealth of Kentucky by Frederic Cowan, Attorney General of Kentucky, A. Stephen Reeder, Special Assistant Attorney General, and Patricia K. Foley.

Opinion of O'CONNOR, J.

496 U. S.

highways with a gross weight between 73,281 and 80,000 pounds to pay, alternatively, an annual flat tax of $175 or a tax of 5¢ per mile traveled in Arkansas or a trip permit fee of $8 per 100 miles. Effectively, HUE taxed only the first 3,500 miles of annual highway use by heavy trucks, that being the point at which it became advantageous to pay the flat tax of $175. Because trucks based in Arkansas were likely to travel many more miles on the State's highways than heavy trucks based out of the State, petitioners argued that HUE impermissibly discriminated against interstate commerce by imposing on out-of-state truckers greater per-mile costs than those imposed on in-state truckers. To remedy the alleged federal constitutional violation petitioners argued that Art. 16, § 13, of the Arkansas Constitution required the State to refund all HUE taxes petitioners had paid. See App. 12-13, 22-23 (filed Mar. 6, 1989).

Pending determination on the merits of their constitutional challenge, petitioners sought a preliminary injunction placing all HUE tax revenues in escrow to prevent those revenues from being deposited into the state treasury and being distributed to state agencies. The Chancery Court's denial of petitioners' motion for the preliminary injunction was affirmed on interlocutory appeal to the Arkansas Supreme Court. American Trucking Assns., Inc. v. Gray, 280 Ark. 258, 657 S. W. 2d 207 (1983). After further proceedings, the Chancery Court upheld the constitutionality of HUE, and the State Supreme Court affirmed. American Trucking Assns., Inc. v. Gray, 288 Ark. 488, 707 S. W. 2d 759 (1986). That court relied on our decisions in Capitol Greyhound Lines v. Brice, 339 U. S. 542 (1950), Aero Mayflower Transit Co. v. Board of Railroad Comm'rs of Mont., 332 U. S. 495 (1947), and Aero Mayflower Transit Co. v. Georgia Public Service Comm'n, 295 U. S. 285 (1935), to hold that the flat tax portion of HUE was neither excessive nor unreasonable and did not, therefore, violate the Commerce Clause. In so doing, the Arkansas Supreme Court explicitly rejected peti