Page:United States Reports 502 OCT. TERM 1991.pdf/619

 502US2$28D 02-10-99 15:12:54 PAGES OPINPGT

Cite as: 502 U. S. 437 (1992)

461

Scalia, J., dissenting

application to the acceptable classes.14 Moreover, the statute could itself have been written to address explicitly the GRDA.15 The legislature here chose neither course. The State provides no additional insight into the intent of its legislature on this question. The Act would become a fundamentally different piece of legislation were it construed to apply only to the GRDA. We leave to the Oklahoma Legislature to decide whether it wishes to burden this stateowned utility when private utilities will otherwise be free of the Act’s restrictions. V We deny Oklahoma’s motion for summary judgment and grant that of Wyoming. In sum, we hold that the Act is unconstitutional under the Commerce Clause. No portion is severable as to any entity touched by its mandate. A judgment and decree to that effect and enjoining enforcement of the Act will be entered. Jurisdiction over the case is retained in the event that further proceedings are required to implement the judgment. So ordered. Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting. In the almost century and a half since we first entered the business of entertaining “negative Commerce Clause” actions, see Cooley v. Board of Wardens of Port of Philadelphia ex rel. Society for Relief of Distressed Pilots, 12 How. 299 (1852), I think it safe to say that the federal courts have 14 See, e. g., INS v. Chadha, 462 U. S. 919, 932 (1983), where the severability clause provided: “ ‘If any particular provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the act and the application of such provision to other persons or circumstances shall not be affected thereby’ ” (emphasis deleted). 15 See, e. g., Mo. Ann. Stat. § 34.080 (Vernon 1969), which expressly requires all state agencies to purchase Missouri coal if it is available at a competitive price.