author: Mr. Justice Rbhnquist Mr. Justice Stevens, Mr. Justice Brennan,

text:
    BURCH et al. v. LOUISIANA
    No. 78-90.
    Argued February 22, 1979
    Decided April 17, 1979
    ReHNQUist, J., delivered the opinion of the Court, in which Burger, C. J., and White, BlacicmuN, Powell, and SteveNS, JTJ., joined. StevbNS, J., filed a concurring opinion, post, p. 139. BreNnaN, J., filed an opinion concurring in part and dissenting in part, in which Stewart and Marshall, JJ., joined, post, p. 140.

      Jack Peebles argued the cause and filed ’ a brief for petitioners.

      Louise Korns argued the cause for respondent. With her on the brief were William J. Ouste, Jr., Attorney General of Louisiana, and Harry F. Connick

        Leon Friedman and Bruce J. Ennis filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.

   Mr. Justice Rbhnquist

delivered the opinion of the Court.

The Louisiana Constitution and Code of Criminal Procedure provide that criminal cases in which the punishment imposed may be confinement for a period in excess of six months “shall be tried before a jury of six persons, five of whom must concur to render a verdict.” We granted cer-tiorari to decide whether conviction by a nonunanimous six-person jury in a state criminal trial for a nonpetty offense as contemplated by these provisions of Louisiana law violates the rights of an accused to trial by jury guaranteed by the Sixth and Fourteenth Amendments. 439 U. S. 925 (1978).

Petitioners, an individual and a Louisiana corporation, were jointly charged in two counts with the exhibition of two obscene motion pictures. Pursuant to Louisiana law, they were tried before a six-person jury, which found both petitioners guilty as charged. A poll of the jury after verdict indicated that the jury had voted unanimously to convict petitioner Wrestle, Inc., and had voted 5-1 to convict petitioner Burch. Burch was sentenced to two consecutive 7-month prison terms, which were suspended, and fined $1,000; Wrestle, Inc., was fined $600 on each count.

Petitioners appealed their convictions to the Supreme Court of Louisiana, where they argued that the provisions of Louisiana law permitting conviction by a nonunanimous six-member jury violated the rights of persons accused of nonpetty criminal offenses to trial by jury guaranteed by the Sixth and Fourteenth Amendments. Though acknowledging that the issue was “close,” the court held that conviction by a non-unanimous six-person jury did not offend the Constitution. State v. Wrestle, Inc., 360 So. 2d 831, 838 (1978). The court concluded that none of this Court’s decisions precluded use of a nonunanimous six-person jury. “ Tf 75 percent concurrence (%2) was enough for a verdict as determined in Johnson v. Louisiana, 406 U. S. 356 . . . (1972), then requiring 83 percent concurrence (%) ought to be within the permissible limits of Johnson’” Ibid., quoting Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La. L. Rev. 1, 56 n. 300 (1974). And our recent decision in Ballew v. Georgia, 435 U. S. 223 (1978), striking down a Georgia law allowing conviction by a unanimous five-person jury in non-petty criminal cases, was distinguishable in the Louisiana Supreme Court’s view: Since the Louisiana Supreme Court believed that conviction by a nonunanimous six-person jury was not necessarily foreclosed by this Court's decisions, it stated that it preferred to “indulgfe] in the presumption of federal constitutionality which must be afforded to provisions of our state constitution.” Ibid.

“[I]n Williams [v. Florida, 399 U. S. 78 (1970)] the court held that a six-person jury was of sufficient size to promote adequate group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community. These values, which Ballew held a five-person jury is inadequate to serve, are not necessarily defeated because the six-person jury’s verdict may be rendered by five instead of by six persons.” 360 So. 2d, at 838.

We agree with the Louisiana Supreme Court that the question presentéd is a “close” one. Nonetheless, we believe that conviction by a nonunanimous six-member jury in a state criminal trial for a nonpetty offense deprives an accused of his constitutional right to trial by jury.

Only in relatively recent years has this Court had to consider the practices of the several States relating to jury size and unanimity. Duncan v. Louisiana, 391 U. S. 145 (1968), marked the beginning of our involvement with such questions. The Court in Duncan held that because trial by jury in “serious” criminal cases is “fundamental to the American scheme of justice” and essential to due process of law, the Fourteenth Amendment guarantees a state criminal defendant the right to a jury trial in any case which, if tried in a federal court, would require a jury under the Sixth Amendment. Id., at 149, 158-159.

Two Terms later in Williams v. Florida, 399 U. S. 78, 86 (1970), the Court held that this constitutional guarantee of trial by jury did not require a State to provide an accused with a jury of 12 members and that Florida did not violate the jury trial rights of criminal defendants charged with nonpetty offenses by affording them jury panels comprised of only 6 persons. After canvassing the common-law development of the jury and the constitutional history of the jury trial right, the Court concluded that the 12-person requirement was “a historical accident” and that there was no indication that the Framers intended to preserve in the Constitution the features of the jury system as it existed at common law. Id., at 89-90. Thus freed from strictly historical considerations, the Court turned to examine the function that this particular feature performs and its relation to the purposes of jury trial. Id., at 99-100. The purpose of trial by jury, as noted in Duncan, is to prevent government oppression by providing a “safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” 391 U. S., at 156. Given this purpose, the Williams Court observed that the j ury’s essential feature lies in the “interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.” 399 U. S., at 100. These purposes could be fulfilled, the Court believed, so long as the jury was of a sufficient size to promote group deliberation, free from outside intimidation, and to provide a fair possibility that a cross section of the community would be represented on it. Ibid. The Court concluded, however, that there is “little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12 — particularly if the requirement of unanimity is retained.” Ibid, (emphasis added).

A similar analysis led us to conclude in 1972 that a jury’s verdict need not be unanimous to satisfy constitutional requirements, even though unanimity had been the rule at common law. Thus, in Apodaca v. Oregon, 406 U. S. 404 (1972), we upheld a state statute providing that only 10 members of a 12-person jury need concur to render a verdict in certain noncapital cases. In terms of the role of the jury as a safeguard against oppression, the plurality opinion perceived no difference between those juries required to act unanimously and those permitted to act by votes of 10 to 2. 406 U. S., at 411. Nor was unanimity viewed by the plurality as contributing materially to the exercise of the jury’s common-sense judgment or as a necessary precondition to effective application of the requirement that jury panels represent a fair cross section of the community. Id., at 410, 412.

Last Term, in Ballew v. Georgia, 435 U. S. 223 (1978), we considered whether a jury of less than six members passes constitutional scrutiny, a question that was explicitly reserved in Williams v. Florida. See 399 U. S., at 91 n. 28. The Court, in separate opinions, held that conviction by a unanimous five-person jury in a trial for a nonpetty offense deprives an accused of his right to trial by jury. While readily admitting that the line between six members and five was not altogether easy to justify, at least five Members of the Court believed that reducing a jury to five persons in nonpetty cases raised sufficiently substantial doubts as to the fairness of the proceeding and proper functioning of the jury to warrant drawing the line at six. See 435 U. S., at 239 (opinion of Blackmun, J.); id., at 245-246 (opinion of Powell, J.).

We thus have held that the Constitution permits juries of less than 12 members, but that it requires at least 6. Ballew v. Georgia, supra; William v. Florida, supra. And we have approved the use of certain nonunanimous verdicts in cases involving 12-person juries. Apodaca v. Oregon, supra (10-2); Johnson v. Louisiana, 406 U. S. 356 (1972) (9-3). These principles are not questioned here. Rather, this case lies at the intersection of our decisions concerning jury size and unanimity. As in Ballew, we do not pretend the ability to discern a priori a bright line below which the number of jurors participating in the trial or in the verdict would not permit the jury to function in the manner required by our prior cases. 435 U. S., at 231-232 (opinion of Blackmun, J.); id., at 245-246 (opinion of Powell, J.); see Williams v. Florida, supra, at 100. But having already departed from the strictly historical requirements of jury trial, it is inevitable that lines must be drawn somewhere if the substance of the jury trial right is to be preserved. Cf. Scott v. Illinois, 440 U. S. 367, 372 (1979); Baldwin v. New York, 399 U. S. 66, 72-73 (1970) (plurality opinion); Duncan v. Louisiana, 391 U. S., at 161. Even the State concedes as much. Tr. of Oral Arg. 26-27.

This line-drawing process, “although essential, cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little.” Duncan v. Louisiana, supra, at 161; see Baldwin v. New York, supra, at 72-73 (plurality opinion). However, much the same reasons that led us in Ballew to decide that use of a five-member jury threatened the fairness of the proceeding and the proper role of the jury, lead us to conclude now that conviction for a nonpetty offense by only five members of a six-person jury presents a similar threat to preservation of the substance of the jury trial guarantee and justifies our requiring verdicts rendered by six-person juries to be unanimous. We are buttressed in this view by the current jury practices of the several States. It appears that of those States that utilize six-member juries in trials of nonpetty offenses, only two, including Louisiana, also allow non-unanimous verdicts. We think that this near-uniform judgment of the Nation provides a useful guide in delimiting the line between those jury practices that are constitutionally permissible and those that are not. See Baldwin v. New York, supra, at 70-72 (plurality opinion); Duncan v. Louisiana, supra, at 161; District of Columbia v. Clawans, 300 U. S. 617, 628 (1937).

The State seeks to justify its use of nonunanimous six-person juries on the basis of the “considerable time” savings that it claims results from trying cases in this manner. It asserts that under its system, juror deliberation time is shortened and the number of hung juries is reduced. Brief for Respondent 14. Undoubtedly, the State has a substantial interest in reducing the time and expense associated with the administration of its system of criminal justice. But that interest cannot prevail here. First, on this record, any benefits that might accrue by allowing five members of a six-person jury to render a verdict, as compared with requiring unanimity of a six-member jury, are speculative, at best. More importantly, we think that when a State has reduced the size of its juries to the minimum number of jurors permitted by the Constitution, the additional authorization of nonunanimous verdicts by such juries sufficiently threatens the constitutional principles that led to the establishment of the size threshold that any countervailing interest of the State should yield.

The judgment of the Louisiana Supreme Court affirming the conviction of petitioner Burch is, therefore, reversed, and its judgment affirming the conviction of petitioner Wrestle, Inc., is affirmed. The case is remanded to the Louisiana Supreme Court for proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Stevens,

concurring.

Even though I have not changed the views I expressed in Marks v. United States, 430 U. S. 188, 198; Smith v. United States, 431 U. S. 291, 311-321; and Splawn v. California, 431 U. S. 595, 602-605, I do not believe that I have the authority to vote to modify the judgment below on a ground not fairly subsumed within the question presented by the petition for certiorari. That question is whether conviction by a non-unanimous six-person jury of a nonpetty offense violates the Sixth and Fourteenth Amendments. Because this is the only question addressed by the Court and because I agree with the Court's resolution of this question, I join its opinion.

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall join, concurring in part and dissenting in part.

For the reasons set forth in Johnson v. Louisiana, 406 U. S. 356, 380 (Douglas, J., dissenting), 395 (Brennan, J., dissenting), 397 (Stewart, J., dissenting), 399 (Marshall, J., dissenting) (1972), and Apodaca v. Oregon, 406 U. S. 404, 414 (1972) (Stewart, J., dissenting), I agree that petitioner Burch's criminal conviction by a nonunanimous jury verdict must be reversed as a violation of his right to jury trial guaranteed by the Sixth and Fourteenth Amendments. However, I dissent from the Court's disposition insofar as it authorizes a retrial of petitioner Burch and affirms the conviction of petitioner Wrestle, Inc. Petitioners were convicted on charges of exhibiting allegedly obscene motion pictures in violation of La. Rev. Stat. Ann. § 14:106 (A)(3) (West 1974). That statute in my view is overbroad and therefore facially unconstitutional. See Paris Adult Theatre I v. Slaton, 413 U. S. 49, 73 (1973) (Brennan, J., dissenting). Accordingly, I would reverse the convictions of both petitioners and declare that the unconstitutionality of the statute precludes a constitutional conviction of either for its alleged violation. See Ballew v. Georgia, 435 U. S. 223, 246 (1978) (opinion of Brennan, J.).

       Article I, § 17, of the Louisiana Constitution provides:
      “A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at- hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury.”
      Article 779 (A), La. Code Crim. Proc. Ann. (West Supp. 1979), states:
      “A defendant charged with a misdemeanor in which the punishment may be a fine in excess of five hundred dollars or imprisonment for more than six months shall be tried by a jury of six jurors, five of whom must concur to render a verdict.”

       The Sixth Amendment provides:
      “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defense.”
      In Duncan v. Louisiana, 391 U. S. 145 (1968), the Court held that the right of trial by jury was a fundamental right applicable to the States by virtue of the Fourteenth Amendment.

       At the time of petitioners’ trial, the maximum penalty prescribed for the crime of obscenity was a fine of not less than $1,000, or imprisonment in the parish prison for not more than one year, or both. La. Rev. Stat. Ann. § 14:106 (G) (West 1974).

       Because Wrestle, Inc., was convicted by a unanimous six-person jury, it lacks standing to challenge the constitutionality of the provisions of Louisiana law allowing conviction by a nonunanimous six-member jury. See, e. g., Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 72 (1978); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 260-261 (1977); United States v. Raines, 362 U. S. 17, 21 (1960). And in Williams v. Florida, 399 U. S. 78 (1970), this Court held that conviction by a unanimous six-person jury does not violate an accused’s right to trial by jury. Accordingly, Wrestle, Inc., has not been denied its constitutional right to trial by jury.

       Although petitioners did not raise the jury trial issue in the trial court, the Louisiana Supreme Court held that under state law it could consider petitioners’ claim, and it disposed of that claim. State v. Wrestle, Inc., 360 So. 2d 831, 837 (1978). The federal question therefore is properly raised in this Court. See New Jersey v. Portash, 440 U. S. 450, 455 (1979); Jenkins v. Georgia, 418 U. S. 153, 157 (1974); Raley v. Ohio, 360 U. S. 423, 436 (1959).

       In Duncan v. Louisiana, supra, at 159, the Court reaffirmed the long-established view that “petty offenses” may be tried without a jury, and in Baldwin v. New York, 399 U. S. 66, 69 (1970), the plurality opinion of Mr. Justice White concluded that “no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.” See Ballew v. Georgia, 435 U. S. 223, 229 (1978) (opinion of Blackmun, J.). Because the Louisiana obscenity statute under which petitioners were charged authorized imprisonment for more than six months, see n. 3, supra, petitioners were entitled under the Constitution to be tried by a jury.

       The Court also believed that a jury of 12 was neither more reliable as a factfinder, more advantageous to the defendant, nor more representative of the variety of viewpoints in the community than a jury of 6. 399 U. S., at 100-102.

        Johnson v. Louisiana, 406 U. S. 356 (1972), was decided the same day as A-podaca v. Oregon and held that conviction by a 9-3 verdict in certain noncapital cases did not violate the Due Process Clause for failure to satisfy the reasonable-doubt standard. Unlike Apodaca, Johnson involved a trial held prior to Duncan v. Louisiana, 391 U. S. 145 (1968), which the Court in DeStefano v. Woods, 392 U. S. 631 (1968), held was not to be applied retroactively, and therefore did not implicate the Sixth Amendment as applied to the States through the Fourteenth. 406 U. S., at 358.

       Mr. Justice Powell concurred in the judgment in Apodaca v. Oregon, 406 U. S., at 366. He concluded that although Sixth Amendment history and precedent required jury unanimity in federal trials, the Due Process Clause of the Fourteenth Amendment does not incorporate all the elements of a jury trial required by the Sixth Amendment and does not prevent Oregon from permitting conviction by a verdict of 10-2. Id., at 369-380.

       Mr. Justice White concurred in the judgment on the ground that a jury of fewer than six persons would not satisfy the fair-cross-section requirement of the Sixth and Fourteenth Amendments. Ballew v. Georgia, 435 U. S., at 245. See also id., at 246 (opinion of BrenNAN, J., joining opinion of Blachmun, J., insofar as it holds that the Sixth and Fourteenth Amendments require juries in criminal trials to contain more than five persons).

       We, of course, intimate no view as to the constitutionality of non-unanimous verdicts rendered by juries comprised of more than six members.

       Of the 25 States that apparently allow six-person juries in the trials of at least some nonpetty caseq, only Louisiana and Oklahoma appear to permit a verdict to be rendered by a less than unanimous jury. See La. Const., Art. I, § 17; La. Code Crim. Proc. Ann., Art. 779 (A) (West Supp. 1979); Okla. Const., Art. 2, § 19; Okla. Stat., Tit. 22, § 601 (1971); Houchin v. State, 97 Okla. Cr. 268, 262 P. 2d 173 (1953); Pierce v. State, 96 Okla. Cr. 76, 248 P. 2d 633 (1952). The Constitution of the State of Idaho- allows, but does not require, nonunanimous six-person juries in certain circumstances; however, the Idaho criminal rules appear to require verdicts of six-person juries to be unanimous. See Idaho Const., Art. I, § 7; Idaho Rule Crim. Proc. 31 (a).

      See this Court’s Rule 23 (1) (e) (“Only the questions set forth in the petition or fairly comprised therein will be considered by the court”);
        Mazer v. Stein, 347 U. S. 201, 208, and n. 6; General Talking Pictures Corp. v. Western Electric Co., 304 U. S. 175, 177-179.


source: Caselaw Access Project

author: Mr. Justice Stewart Me. Justice Rehnquist,

license: Public Domain

text:
    ARIZONA PUBLIC SERVICE CO. et al. v. SNEAD, DIRECTOR OF REVENUE DIVISION, TAXATION AND REVENUE DEPARTMENT OF NEW MEXICO, et al.
    No. 77-1810.
    Argued February 26, 1979
    Decided April 18, 1979
    Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Marshall, BlacKMUn, Powell, and Stevens, JJ., joined. RehNQUist, J., filed an opinion concurring in the judgment, in which White, J., joined, post, p. 151.

      Daniel J. McAuliffe argued the cause for appellants. With him on the briefs were Richard N. Carpenter, Mark Wilmer, and William C. Schaab.

      Jan E. Unna, Special Assistant Attorney General of New Mexico, argued the cause for appellees. With him on the brief were Toney Anaya, Attorney General, and John P. Frank.

      A brief of amici curiae urging reversal was filed by the Attorneys General for their respective States as follows: Louis J. Lefkomtz for New York, Francis B. Burch for Maryland, John Degnan for New Jersey, William J. Brown for Ohio, and Marshall Coleman for Virginia.

   Mr. Justice Stewart

delivered the opinion of the Court.

New Mexico has imposed a tax on the privilege of generating electricity within its borders. The question in this case is whether that tax conflicts with federal law, statutory or constitutional.

I

The Four Corners power plants, located in New Mexico’s desert northwest, are owned by the appellants, five public utilities companies. Most of the electricity generated at the plants is ultimately sold to out-of-state consumers. New Mexico imposes a 4% gross receipts tax on retail sellers of electricity, but since the bulk of the appellants' sales are made to consumers in other States, they do not incur significant liability for this tax. In 1975, New Mexico enacted the Electrical Energy Tax Act, the law at issue in this case. That Act imposes a tax on the privilege of generating electricity at the rate of %o of a mill on each net kilowatt hour of electricity generated. This is roughly equivalent to a tax on the retail value of the electricity. The tax is imposed on all companies generating electricity within the State. Section 9 of the Act, however, provides that this electrical energy tax may be fully credited against the company’s gross receipts tax liability.

The Act and the regulations implementing it insure that the electrical generating company will receive full credit for the tax even if it does not itself make retail sales of electricity. This result is accomplished by requiring the generating company to assign its “potential credit” to the retailer, who in turn is required to reimburse the generating company for the value of this credit. The consequence is that a generating company’s 2% tax is completely offset by the credit against the 4% retail sales tax when its electricity is sold within New Mexico. But to the extent that the electricity generated in New Mexico is not sold at retail in the State, there is no gross receipts tax liability against which to offset the electrical energy tax liability of the generating company.

In 1976, the State of Arizona, as a consumer of electricity and parens patriae for its citizens, sought to invoke this Court’s original jurisdiction by a motion for leave to file a bill of complaint against New Mexico, asking for a declaratory judgment invalidating this New Mexico tax. The litigation now before us had already been initiated in the New Mexico courts by the present appellants, seeking essentially the same relief. This Court denied Arizona leave to file its complaint, concluding:

“[T]he pending state-court action provides an appropriate forum in which the issues tendered here may be litigated. If on appeal the New Mexico Supreme Court should hold the electrical energy tax unconstitutional, Arizona will have been vindicated. If, on the other hand, the tax is held to be constitutional, the issues raised now may be brought to this Court by way of direct appeal under 28 U. S. C. § 1267 (2).” Arizona v. New Mexico, 425 U. S. 794, 797.

One of the alternative scenarios foreseen in our 1976 opinion has now eventuated. The New Mexico Supreme Court has upheld the validity of this energy tax against federal statutory and constitutional attacks, Arizona Public Serv. Co. v. O’Chesky, 91 N. M. 485, 576 P. 2d 291, and the issues have been brought to this Court by way of direct appeal under 28 U. S. C. § 1257 (2). 439 U. S. 891.

II

The appellants contend that the New Mexico tax is invalid under a specific federal statute as well as under the Commerce, Due Process, and Import-Export Clauses of the Constitution. Because we conclude that under the Supremacy Clause the tax is invalid by reason of this federal statute, we do not reach the substantive constitutional issues.

When Congress enacted the Tax Reform Act of 1976 it included a provision relating to state taxes on electricity. Section 2121 (a) of the Act, 90 Stat. 1914, codified at 16 U. S. C. § 391, provides:

“No State, or political subdivision thereof, may impose or assess a tax on or with respect to the generation or transmission of electricity which discriminates against out-of-State manufacturers, producers, wholesalers, retailers, or consumers of that electricity. For purposes of this section, a tax is discriminatory if it results, either directly or indirectly, in a greater tax burden on electricity which is generated and transmitted in interstate commerce than on electricity which is generated and transmitted in intrastate commerce.”

This provision was not in the bill as passed by the House of Representatives. Its genesis was in the Senate Finance Committee, although in its original version the definition of a discriminatory tax was different from that in the law finally enacted:

“For purposes of this section a tax is discriminatory that either directly or indirectly results in the payment of a higher gross or net tax on electricity which is generated and transmitted in interstate commerce than on electricity which is generated and transmitted in intrastate commerce.” H. R. 10612, 94th Cong., 1st Sess., § 1323 (1976).

The Committee's Report described the reasons for including the provision:

“The committee has learned that one State places a discriminatory tax upon the production of electricity within its boundaries for consumption outside its boundaries. While the rate of the tax itself is identical for electricity that is ultimately consumed outside the State and electricity which is consumed inside the State, discrimination results because the State allows the amount of the tax to be credited against its gross receipts tax if the electricity is consumed within its boundaries. This credit normally benefits only domiciliarles of the taxing State since no credit is allowed for electricity produced within the State and consumed outside the State. As a result, the cost of the electricity to nondomiciliaries is normally increased by the cost the producer of the electricity must bear in paying the tax. However, the cost to domiciliaries of the taxing State does not include the amount of the tax.
“The committee believes that this is an example of discriminatory State taxation which is properly within the ability of Congress to prohibit through its power to regulate interstate commerce.” (Footnote omitted.) S. Rep. No. 9<R938, pt. I, pp. 437-438 (1976).

The identity of the unnamed State was disclosed during the course of a subsequent Senate floor debate on a motion by Senator Domenici of New Mexico to strike the provision from the bill. Senators Domenici and Montoya of New Mexico, Senators Fannin and Goldwater of Arizona, and Senator Cranston of California made it clear that the provision was aimed directly at New Mexico’s electrical energy tax. 122 Cong. Rec. 24324-24329 (1976). At the conclusion of this debate, Senator Domenici’s motion to eliminate the provision was defeated. Id., at 24329.

The appellees concede that this statutory provision was aimed directly at the New Mexico Electrical Energy Tax Act. They contend, however, that the definition of a discriminatory tax was so defused in the Conference Committee that Congress in the law as enacted failed to hit its mark. Specifically, they point out that a discriminatory tax, defined in the Senate Committee’s original draft as one that results in “the payment of a higher gross or net tax,” became in the statute as enacted one which results in “a greater tax burden” on electricity transmitted out of state than that sold within the State.

We are told that the statutory definition was redrafted in the Conference Committee to allay the concerns of Senators from States with somewhat similar taxes. That Committee’s Report gave no reason, however, for the change in language. The Report merely stated:

“Senate amendment. — Under present law, any restrictions on the power of States or their political subdivisions to tax goods or services produced in the taxing State for nondomiciliary use outside the taxing State are derived from court interpretations of the interstate commerce clause of the Constitution.
“The Senate amendment prohibits any State or political subdivision of a State from directly or indirectly imposing any tax on the generation or transmission of electricity which discriminates against out-of-State users. This provision is effective for taxable years beginning after June 30, 1974.
“Conference agreement. — The conference agreement follows the Senate amendment.” H. R. Conf. Rep. No. 94M515, p. 503 (1976).

There is thus no legislative history to show what the Conference Committee’s drafting change was intended to accomplish. But the provision as enacted is far from the “sterile” legislation that the appellees contend it is. To the contrary, the provision clearly operates, we think, to carry out the expressed intent of the Senate to invalidate the New Mexico tax.

The Act prohibits “a tax on or with respect to the generation or transmission of electricity” which “results, either directly or indirectly, in a greater tax burden on electricity” consumed outside of New Mexico than that consumed in the State. The appellees urge that this statutory provision is no more than a prohibition of a tax that is invalid under the constitutional test of the Commerce Clause. That test, they say, requires examination of New Mexico’s total tax structure to determine whether the State in fact imposes a greater tax burden on electricity sent out of state. See Halliburton Oil Well Cementing Co. v. Reily, 373 U. S. 64, 69. And the tax in question, they say, clearly survives such an examination. Power sold within New Mexico, they argue, is subject to a 4% tax: 2% from the electrical energy tax and 2% from the gross receipts tax. By contrast, New Mexico subjects electricity sent out of state only to its 2% generation tax. The appellees contend, therefore, that if there is any discrimination in New Mexico’s taxing structure, it is discrimination against electricity consumed within the State.

But, whatever the validity may be of the Commerce Clause test advanced by the appellees, the federal statutory provision is directed specifically at a state tax “on or with respect to the generation or transmission of electricity,” not to the entire tax structure of the State. The tax imposed by New Mexico’s Electrical Energy Tax Act is concededly a tax on the generation of electricity. The tax-credit provisions of the Act itself insure that locally consumed electricity is subject to no tax burden from the electrical energy tax, while the bulk of the electricity generated in New Mexico by the appellants is subject to a 2% tax, since it is sold outside the State. To look narrowly to the type of tax the federal statute names, rather than to consider the entire tax structure of the State, is to be faithful not only to the language of that statute but also to the expressed intent of Congress in enacting it. Because the electrical energy tax itself indirectly but necessarily discriminates against electricity sold outside New Mexico, it violates the federal statute.

The appellees also argue that if the federal statute is construed to invalidate the New Mexico tax, it exceeds the permissible bounds of congressional action under the Commerce Clause. In view of the broad power of Congress to regulate interstate commerce, this argument must be rejected. See Wickard v. Filburn, 317 U. S. 111; Katzenbach v. McClung, 379 U. S. 294. Here, the Congress had a rational basis for finding that the New Mexico tax interfered with interstate commerce, and selected a reasonable method to eliminate that interference. The legislation thus, was within the constitutional power of Congress to enact. See Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 258-259; United States v. Wrightwood Dairy Co., 315 U. S. 110, 119.

The generation of electricity in the Four Corners region undoubtedly also generates environmental and other problems for New Mexico. There is no indication that Congress intended to prevent the State from taxing the generation of electricity to pay for solutions to these problems. But the generation of electricity to be sent to Phoenix causes no more problems than the generation of electricity to be sent to Albuquerque. Congress required only that New Mexico, if it chooses to tax the generation of electricity for consumption in either city, tax it equally for each.

The judgment is reversed.

It is so ordered.

Me. Justice Rehnquist,

with whom Me. Justice White joins, concurring in the judgment.

I concur in the judgment of the Court because I agree that the tax imposed by New Mexico’s Electrical Energy Tax Act on the generation of electricity within its borders is forbidden by § 2121 (a) of the Tax Reform Act of 1976, codified at 15 U. S. C. § 391.

I think that the statutory question is somewhat closer than the Court intimates, both as to the meaning of the actual language of § 391 and as to its legislative history. As the Court indicates and as appellees concede, the debate on the floor of the Senate makes it clear that the original version of § 391 was aimed at New Mexico’s energy tax. See ante, at 147-148; Brief for Appellees 14. New Mexico argues here that the original provision was redrafted in conference in order to “save” somewhat similar tax statutes in other States and that, as redrafted, § 391 is “sterile” legislation: It accomplishes no more than the Commerce Clause of the Constitution would accomplish of its own force. See ante, at 149; Brief for Appel-lees 11,16, 24. Congress is vested with the legislative power of the United States, and not the judicial power, and therefore it may be unrealistic to assume automatically that Congress never passes a “sterile” law, in the sense that the provision does no more than the Constitution would have done had Congress never enacted the law. But, in my view, the laws enacted by Congress certainly are entitled to a presumption to that effect. Since the effect of § 391 is not entirely clear from its language and legislative history, I would give some weight to that presumption in reaching the conclusion that §391 extends beyond the requirements of the Commerce Clause and outlaws the New Mexico energy tax here at issue.

       The five appellants are Arizona Public Service Co., El Paso Electric Co., Salt River Project Agricultural Improvement & Power Dist., Southern California Edison Co., and Tucson Gas & Electric Co. Each appellant owns an undivided interest in the Four Corners Power Plant. Tucson Gas & Electric is an equal co-owner with Public Service Co. of New Mexico of units of the San Juan Generating Station. El Paso Electric Co. owns and operates the Rio Grande Generating Station in southern New Mexico.

       Arizona Public Service Co. makes some minor retail sales of electricity in New Mexico. El Paso Electric malees retail sales in a significant portion of southern New Mexico and is the only one of the appellants regulated by New Mexico as a public utility. El Paso Electric also sells electricity at wholesale in the Republic of Mexico. In 1975, the five appellants generated nearly a billion kilowatt hours of electricity in New Mexico.

       N. M. Stat. Ann. §§ 7-9-1 through 7-9-80 (1978).

       The critical sections of the Electrical Energy Tax Act are §§ 3 and 9. They provide in relevant part as follows:
      Section 3.
      “A. For the privilege of generating electricity in this state for the purpose of sale, whether the sale takes place in this state or outside this state, there is imposed on any person generating electricity a temporary tax, applicable until July 1, 1984, of four-tenths of one mill ($.0004) on each net kilowatt hour of electricity generated in New Mexico..
      “B. The tax imposed by this section shall be referred to as the 'electrical energy tax.’ ” N. M. Stat. Ann. § 7-18-3 (1978).
      Section 9.
      “B. On electricity generated inside this state and consumed in this state which was subject to the electrical energy tax, the amount of such tax paid may be credited against the gross receipts tax due this state.
      “C. The credit under Subsections A or B of this section shall be assigned to the person selling the electricity for consumption in New Mexico on which New Mexico gross receipts tax is due, and the assignee shall reimburse the assignor for the credit.” N. M. Stat. Ann. § 7-9-80 (1978).

       The relevant sections of the regulations provide:
      “B. Section 72-16A-16.1 (C) [now codified as § 7-9-80 (C)] requires that a potential credit be assigned to persons purchasing electricity for resale:
      “1) to buyers who will potentially consume or use the electricity in New Mexico, or
      “2) to buyers who will potentially resell the electricity for consumption in New Mexico; on which an electrical energy tax or similar tax has been levied by New Mexico, by another state or by political subdivisions thereof and paid by the seller.
      “Each seller of electricity as described in this paragraph must assign, to each buyer described in subparagraphs (1) and (2) of this paragraph, a pro-rata share of the total available potential credit provided in Section 72-16A-16.1 (A) or (B) [now codified as §§7-9-80 (A), 7-9-80 (B)].
      “C. It shall be presumed that the potential credit against gross receipts tax as provided by Section 72-16A-16.1 (C) shall have been assigned when the buyer is in receipt of an invoice from the seller separately stating the amount of the applicable Electrical Energy Tax or similar tax as provided in Section 72-16A-16.1.
      “In the absence of bad faith, a wholesale purchaser in New Mexico of electricity may rely upon such an invoice in claiming a credit under Section 72-16A-16.1.
      “D.
      “1) That p'ortion of the potential credit assigned to a buyer further reselling the electricity for consumption in New Mexico may be credited by the assignee against the gross receipts tax due New Mexico on receipts from the sale of electricity for any month subsequent to July 1, 1975.
      “2) That portion of the potential credit assigned to a buyer further reselling the electricity at wholesale to buyers who will resell the electricity for consumption in New Mexico must be reassigned to the subsequent buyer as provided in paragraph B of this regulation.
      “3) That amount of the electric energy tax credit which is not assigned to appropriate buyers and which is otherwise creditable under Section 72-16A-16.1, may be credited against the gross receipts tax due New Mexico on receipts from the sale of electricity for any reporting month subsequent to July 1, 1975.” N. M. G. Rev. Regulations 16.1:1 (1976).

       “[T]he Laws of the United States which shall be made in Pursuance [of the Constitution] . . . shall be the supreme Law of the Land . . . U. S. Const., Art. VI, cl. 2.

       This is not a case where the State has imposed an evenhanded tax on the generation of electricity and has lowered the gross receipts or sales tax on the sale of electricity. Although New Mexico argues that such is the practical result of its tax structure, the credit provisions of the Electrical Energy Tax Act itself shift the legal incidence of the gross receipts tax credit directly to the generating utility.
      The amici in this case have pointed to several similar state taxes on the generation of electricity. Pa. Stat. Ann., Tit. 72, § 8101 (Purdon Supp. 1978-1979); Wash. Rev. Code §§ 82.16.020, 82.16.050 (1976); W. Ya. Code §§ 11-13-2d, 11-13-2m (Supp. 1978). None of these States, however, has adopted precisely the scheme used by New Mexico, and we express no opinion as to the validity of these or any other state tax laws.

      There is no question in my mind that if § 391 were coextensive with the Commerce Clause, New Mexico’s energy tax would be valid for substantially the same reasons advanced by appellees. Ante, at 149; see Halliburton Oil Well Cementing Co. v. Reily, 373 U. S. 64, 69-70 (1963); Gregg Dyeing Co. v. Query, 286 U. S. 472, 480 (1932); Public Utility Dist. No. 8 v. State, 82 Wash. 2d 232, 239-240, 510 P. 2d 206, 210-211, appeal dismissed for want of substantial federal question, 414 U. S. 1106 (1973).