Antonin Scalia

“ If I understand Justice STEVENS correctly, the availability of the option suffices, in his view, whether or not North Dakota would have the power to prevent the Federal Government from purchasing liquor directly from out-of-state suppliers. So long as the Federal Government does not have to pay more tax than North Dakota citizens in order to obtain liquor, the principle of governmental immunity is not offended. ”

“ I do not think Washington compels us to uphold a regulatory requirement uniquely imposed on federal contractors that is so different from the offsetting burden on private market participants as to require difficult and periodic computation of relative burden. ”

“ I ultimately agree with Justice STEVENS, however, that the existence of the option in the present case saves the discriminatory regulation-but only because the option of buying liquor from in-state distributors (unlike the option of paying a direct tax in Washington ) is not a course of action that the Federal Government has a constitutional right to avoid. ”