167 SCALIA, J., concurring in judgment our "negative" Commerce Clause jurisprudence) violate the Constitution can nonetheless be authorized by a federal statute if Congress "disagree[s]" with our appraisal of the appropriate role of the States in the relevant field. See Scheiner, supra, at 289, n. 23. Presuming law from congressional silence is quite different from the normal judicial task of interpreting and applying text or determining and applying common-law tradition. The principal question to be asked, of course, is what would a reasonable federal regulator of commerce intend-which is no different from the question a legislator himself must ask. That explains, I think, why no body of our decisional law has changed as regularly as our "negative" Commerce Clause jurisprudence. Change is almost its natural state, as it is the natural state of legislation in a constantly changing national economy. That also explains why our exercise of the "negative" Commerce Clause function has ultimately cast us in the essentially legislative role of weighing the imponderable— balancing the importance of the State's interest in this or that (an importance that different citizens would assess differently) against the degree of impairment of commerce. See, e. g., CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 89-94 (1987); Edgar v. MITE Corp., 457 U. S. 624 (1982); Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). The "negative" Commerce Clause is inherently unpredictable-unpredictable not just because we have applied its standards poorly or inconsistently, but because it requires us and the lower courts to accommodate, like a legislature, the inevitably shifting variables of a national economy. Whatever it is that we are expounding in this area, it is not a Constitution. Because our "negative" Commerce Clause jurisprudence is inherently unstable, it will repeatedly result in the upsetting of settled expectations. My fellow dissenters in Scheiner seek to avoid this consequence in the present case-or, more precisely, seek to avoid extending this consequence beyond SCALIA, J., concurring in judgment 496 U. S. the unfortunate State before the Court in Scheiner, to all other States that had similar laws-by embracing a rule of prospective decisionmaking. There is some appeal to that approach in the "negative" Commerce Clause field: If we are making essentially legislative judgments, why not make them in legislative fashion, i. e., prospectively (subject, of course, to the limitation of the case-or-controversy requirement of Article III, §2, cl. 1, which surely requires retroactivity with respect to the parties immediately before the Court)? I decline to adopt that solution because, as I have discussed above, such a mode of action is fundamentally beyond judicial power-and although "negative" Commerce Clause decisionmaking is as well, two wrongs do not make a right. But it does not follow that I must conclude that the pre-Scheiner Arkansas HUE taxes were unconstitutional. Given my disagreement with this Court's "negative" Commerce Clause jurisprudence, the only thing that could possibly lead me to such a conclusion would be Scheiner's status as precedent. Although I will not apply "negative" Commerce Clause decisional theories to new matters coming before us, stare decisis-that is to say, a respect for the needs of stability in our legal system-would normally cause me to adhere to a decision of this Court already rendered as to the unconstitutionality of a particular type of state law. The law here is indistinguishable from that in Scheiner, so I would normally suppress my earlier view of the matter and acquiesce in the Court's opinion that it is unconstitutional. Something is wrong, however, if I must take that position with respect to the pre-Scheiner taxes at issue in the present case. Believing that Arkansas was fully entitled to impose the taxes, I would nonetheless make the fifth vote to penalize it for having done so even during the period (pre-Scheiner) when our opinions announced it could lawfully do so- and I would impose this injustice in the name of stare decisis, that is, in the interest of protecting settled expectations. That would be 167 STEVENS, J., dissenting absurd. Though I do not believe I have the option of suspending the principle of retroactive judicial decisionmaking, the doctrine of stare decisis is a flexible command. I do not think that a sensible understanding of it requires me to vote contrary to my view of the law where such a vote would not only impose upon a litigant liability I think to be wrong, but would also upset that litigant's settled expectations because the earlier decision for which stare decisis effect is claimed (Scheiner) overruled prior law. That would turn the doctrine of stare decisis against the very purpose for which it exists. I think it appropriate, in other words—indeed, I think it necessary- for a judge whose view of the law causes him to dissent from an overruling to persist in that position (at least where his vote is necessary to the disposition of the case) with respect to action taken before the overruling occurred. Accordingly, I would affirm the decision below with respect to Arkansas' HUE taxes imposed pre-Scheiner, because in my view they were constitutional. I would reverse the decision below with respect to Arkansas' HUE taxes imposed post-Scheiner because they were unlawful by virtue of that decision. I thus concur in the judgment of the Court. JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting. This case presents two issues: whether the flat tax features of the Arkansas HUE tax violate the Commerce Clause of the Federal Constitution and, if so, whether petitioners are entitled to a tax refund. The former is ordinarily a pure question of federal law, our resolution of which should be applied uniformly throughout the Nation, while the latter is a mixed question of state and federal law. The plurality today, however, inverts that analysis. With deceptive simplicity, the plurality rules that the constitutionality vel non of the flat tax turns on whether state officials in a particular State could have anticipated that such a tax would violate the Constitu STEVENS, J., dissenting 496 U. S. tion, ante, at 181-182,' but that the availability of a refund, even if otherwise required under state law, ante, at 177, rests on our own determination, as a matter of federal law, whether retrospective relief would threaten a disruption of governmental operations. Ante, at 185-186. That analysis is wrong on both counts. Petitioners are entitled to an adjudication of the constitutionality of the Arkansas tax under our best current understanding of federal law regardless of the good faith of the Arkansas legislators. The question of remedy or refund, on the other hand, addressed today in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., ante, p. 18, should be decided, not by us, but by the state court in the first instance. The plurality's contrary conclusion is supported by nothing more than a misreading of the Court's opinion in Chevron Oil Co. v. Huson, 404 U. S. 97 (1971). I Arkansas enacted the Highway Use Equalization Tax Act (HUE), 1983 Ark. Gen. Acts, No. 685, Ark. Code Ann. §§ 27-35-204, 27-35-205 (1987), in March 1983. The Act, which became effective on July 1, 1983, discriminated against interstate carriers by taxing them at a higher effective tax rate than carriers which operated intrastate. Vehicles of the weight class covered by the Act were required to display a certificate evidencing compliance with the tax. Operation of 1JUSTICE SCALIA, by contrast, agrees that the constitutionality of a state statute must be analyzed in light of our current understanding of the Constitution. Ante, at 200-201. 2 Our opinion today in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., ante, at 39-40, makes clear that the Federal Constitution does not require the State to refund the entire tax that was unconstitutionally exacted from petitioners, but only to refund the discriminatory portion or otherwise adjust the tax to render it nondiscriminatory. Petitioners do not contend here that they are entitled to any greater relief as a matter of federal law. See Brief for Petitioners 38-39. 167 STEVENS, J., dissenting a vehicle in violation of the Act subjected the user to criminal sanctions and to a graduated scale of fines. §27–35–205(k). The Act contained no method for challenging tax assessments or making payment under protest. 3 On May 27, 1983, before the effective date of the HUE Act, but after some $1,775,000 in tax revenues had been collected, petitioners filed suit in the Pulaski County Chancery Court challenging the constitutionality of the Act under state law and the Commerce Clause of the Federal Constitution, Art. 1, §8, cl. 3. Arkansas adheres to the common-law rule that taxes voluntarily paid cannot be recovered. See County of Searcy v. Stephenson, 244 Ark. 54, 424 S. W. 2d 369 (1968); Brunson v. Board of Directors of Crawford County, 107 Ark. 24, 153 S. W. 828 (1913). Petitioners, however, invoked the Arkansas constitutional provision governing illegal exactions, Ark. Const., Art. 16, § 13, arguing that, as a matter of state law, under the State Supreme Court's recent ruling in Little Rock v. Cash, 277 Ark. 494, 644 S. W. 2d 229 (1982), cert. denied, 462 U. S. 1111 (1983), taxpayers who paid their taxes after the date of the complaint should "be deemed to have paid their taxes involuntarily." 277 Ark., at 506, 644 S. W. 2d, at 234. Their substantive constitutional claims tracked those that had been raised by truckers to a similar Pennsylvania tax enacted in 1980. See American Trucking Assns., Inc. v. Bloom, 77 Pa. Commw. 575, 466 A. 2d 755 (1983). The Chancery Court denied petitioners' motion for a preliminary injunction, concluding that the tax was constitutional. 2 Record 764. After a trial on the merits, the court ruled in the State's favor. In an opinion delivered in April 1986, the State Supreme Court affirmed, holding that the tax was constitutional under our decisions in Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm'n, 295 U. S. 285 Petitioners do not contend that they are entitled to a tax refund for these taxes which were paid voluntarily prior to the institution of this lawsuit. |