Anthony Kennedy

“ The majority removes one of the statute's few remaining limits and increases the burden that a state or local government will face in defending its economic regulation and taxation. With respect, I dissent.
* The majority must acknowledge, under even Golden State, that not all violations of federal law give rise to a § 1983 action. The plaintiff must assert "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. The majority appears to base its decision upon three grounds. ”

“ Rather than refunding the tax, "to the extent consistent with other constitutional restrictions, the State may assess and collect back taxes from petitioner's competitors who benefited from the [discriminatory] rate reductions during the contested tax period." Id., at 40, 110 S.Ct., at 2252. If the State refused to provide any remedy, then the taxpayer would arguably have a § 1983 claim, but that claim would be for a deprivation of property without due process of law, a violation of the Fourteenth Amendment, not of the Commerce Clause. ”

“ Benefits to those engaged in commerce, however, are incidental to the purpose of the Commerce Clause; they are but evidence of its sound application. That the Commerce Clause benefits individual traders or consumers does not satisfy the majority's test that a provision must have been intended for the benefit of a particular plaintiff ”

“ The Court's analysis demonstrates the poverty of the "intended to benefit" test in the constitutional context, for it shows that even structural provisions that benefit individuals incidentally come within its purview. The Court's logic extends far beyond the Commerce Clause, and creates a whole new class of § 1983 suits derived from Article I. For example, the Court's rationale creates a § 1983 cause of action when a State violates the constitutional doctrine of intergovernmental tax immunity, Davis v. ”

“ Kentucky, 141 U.S. 47, 57, 11 S.Ct. 851, 853, 35 L.Ed. 649 (1891) (regulation of interstate commerce "not within the province of state legislation, but within that of national legislation") ; Western Union Telegraph Co. v. ”