Inc. v. Stake Reeves

Justice Powell, in a dissenting opinion joined by Justices Brennan, White, and Stevens, wrote that in fact the South Dakota policy "represents precisely the kind of economic protectionism that the Commerce Clause was intended to prevent." Justice Powell agreed with the Court. He said, that South Dakota could sell cement without violating the clause--but it could not "withhold its cement from interstate commerce in order to benefit private citizens and businesses within the State" and still remain within the scope of the Commerce Clause.

After a brief review of the meaning of interstate commerce, both in the Constitution and in the Court's interpretation, Justice Powell made what he held was a key distinction. If a public entity undertook an enterprise integral to the functioning of traditional government--e.g., police or fire protection--then, as the Court had ruled in National League of Cities v. Usery (1976), the Clause should not apply to it. But if the state entered the private market in order to operate a commercial enterprise that benefited its own citizens, it was within the scope of the clause, which had been placed in the Constitution to prevent "economic Balkanization." His implication was that without the proper flow of interstate commerce as governed by the clause, the states of the Union would become fragmented like the nations of Europe's Balkan Peninsula, which at that time--more than a decade before the conflicts in Bosnia, Croatia, and elsewhere--were already known for their many ethnic, cultural, and national divisions.

Justice Powell then addressed what he saw as the differences between the present case and Alexandria Scrap, and thus arrived at a different answer to the question of whether South Dakota had acted as a participant or a regulator. Whereas Maryland's policy had done nothing to cut off interstate trade, South Dakota's clearly had. Thus, though he "share[d] the Court's desire to preserve state sovereignty," Powell wrote that he had to stand by the Commerce Clause "as a limitation on that sovereignty." In its decision, "the Court today approves protectionist policies," and its decision could not be reconciled with the purpose of a free national economy.