author: Chief Justice Burger Justice Stevens,

text:
    BALL v. UNITED STATES
    No. 84-5004.
    Argued January 9, 1985
    Decided March 26, 1985
    BURGER, C. J., delivered the opinion of the Court, in which Brennan, White, Blackmun, Rehnquist, and O’Connor, JJ., joined. Marshall, J., concurred in the judgment. Stevens, J., filed an opinion concurring in the judgment, post, p. 867. Powell, J., took no part in the decision of the case.

      Jo S. Widener, by appointment of the Court, 469 U. S. 928, argued the cause and filed briefs for petitioner.

      Andrew J. Pincus argued the cause pro hac vice for the United States. With him on the brief were Solicitor General

      Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, Robert J. Erickson, and Thomas E. Booth.

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether a felon possessing a firearm may be convicted and concurrently sentenced under 18 U. S. C. § 922(h)(1) for receiving that firearm, and under 18 U. S. C. App. § 1202(a)(1) for possessing the same weapon. 469 U. S. 816 (1984).

After driving around Honaker, Virginia, with several acquaintances, including petitioner Truman Ball, Hubert Romans discovered that his .32-caliber nickel-plated Rossi revolver was missing from the back seat of his car. He reported the incident to the Russell County Sheriff’s Department. Subsequently, a neighbor notified the Sheriff that Ball had threatened him with a pistol matching the description of Romans’ revolver. Later that same day, the police located Ball at another neighbor’s home where Ball had tried unsuccessfully to sell the revolver. When the police told Ball he was under arrest, Ball fled but was promptly apprehended with Romans’ revolver in his possession.

Ball, a previously convicted felon, was indicted on charges of receiving a firearm shipped in interstate commerce, 18 U. S. C. §§ 922(h)(1) and 924(a), and possessing that firearm, 18 U. S. C. App. § 1202(a)(1). It is conceded that both counts rest on the same conduct. Ball was convicted on both counts by a jury in the Western District of Virginia and sentenced to consecutive terms of three years’ imprisonment on the receipt count and two years’ imprisonment on the possession count, the latter sentence suspended with two years’ probation.

On appeal Ball challenged the validity of the consecutive sentences. The Government conceded that under United States v. Burton, 629 F. 2d 975 (CA4 1980), cert. denied, 450 U. S. 968 (1981), consecutive sentences could not be imposed for unlawful receipt and unlawful possession of the same firearm, when the unlawful possession was incident to its unlawful receipt. The Court of Appeals accepted this concession and adhered to its statement in Burton that “Congress in these firearms statutes created separate offenses, but did not authorize pyramiding penalties.” 734 F. 2d 965, 966 (CA4 1984) (citing Burton, supra, at 977). The Court of Appeals remanded the case to the District Court with instructions to modify the sentences to make them concurrent.

The application of the firearms statutes, § 922(h)(1) and § 1202(a)(1), charging a convicted felon with receiving and possessing the same gun, has produced conflicting decisions among the Courts of Appeals. We granted certiorari to resolve this conflict. We reverse.

HH f — I

This case requires the Court once again to resolve the “partial redundancy” of §§ 922(h) and 1202(a), provisions of Titles IV and VII, respectively, of the Omnibus Crime Control and Safe Streets Act of 1968. E. g., United States v. Batchelder, 442 U. S. 114, 118 (1979); United States v. Bass, 404 U. S. 336, 341-343, and n. 9 (1971). In these two Titles of the Omnibus Act, Congress sought to control the interstate traffic and availability of firearms. Although Congress’ purposes are obvious, courts understandably have had difficulty applying the overlapping provisions of the Act. This case affords an opportunity to address the application of Titles IV and VII to one set of circumstances — where a single act is relied upon to establish a convicted felon’s unlawful receipt and his unlawful possession of the same firearm.

A

It is clear that a convicted felon may be prosecuted simultaneously for violations of §§ 922(h) and 1202(a) involving the same firearm. This Court has long acknowledged the Government’s broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case. E. g., United States v. Goodwin, 457 U. S. 368, 382 (1982); Confiscation Cases, 7 Wall. 454, 457-459 (1869).

In Batchelder, this Court recognized that §§ 922(h) and 1202(a) proscribed similar conduct where the defendant is a convicted felon, but concluded that

“each substantive statute, in conjunction with its own sentencing provision, operates independently of the other.” 442 U. S., at 118.

This Court rejected the argument that § 1202(a) impliedly repealed § 922(h) with respect to acts covered by both provisions, noting that both the statutory language and the legislative history showed that the two provisions were to be applied independently. See id., at 118-121. Under these circumstances there is no bar to the Government’s proceeding with prosecution simultaneously under the two statutes.

B

To say that a convicted felon may be prosecuted simultaneously for violation of §§ 922(h) and 1202(a), however, is not to say that he may be convicted and punished for two offenses. Congress can be read as allowing charges under two different statutes with conviction and sentence confined to one. Indeed, “[a]ll guides to legislative intent,” United States v. Woodward, 469 U. S. 105, 109 (1985), show that Congress intended a felon in Ball’s position to be convicted and punished for only one of the two offenses if the possession of the firearm is incidental to receiving it.

This Court has consistently relied on the test of statutory construction stated in Blockburger v. United States, 284 U. S. 299, 304 (1932), to determine whether Congress intended the same conduct to be punishable under two criminal provisions. The appropriate inquiry under Blockburger is “whether each provision requires proof of a fact which the other does not.” See, e. g., United States v. Woodward, supra, at 107; Albernaz v. United States, 450 U. S. 333, 337 (1981); Whalen v. United States, 445 U. S. 684, 691-692 (1980). The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes.

For purposes of applying the Blockburger test in this setting as a means of ascertaining congressional intent, “punishment” must be the equivalent of a criminal conviction and not simply the imposition of sentence. Congress could not have intended to allow two convictions for the same conduct, even if sentenced under only one; Congress does not create criminal offenses having no sentencing component. See United States v. Hudson & Goodwin, 7 Cranch 32, 34 (1812); Tennessee v. Davis, 100 U. S. 257, 275 (1880) (Clifford, J., dissenting). Cf. Fed. Rule Crim. Proc. 32(b)(1), which provides that the sentence is a necessary component of a “judgment of conviction.”

Applying this rule to the firearms statutes, it is clear that Congress did not intend to subject felons to two convictions; proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon. “[W]hen received, a firearm is necessarily possessed.” United States v. Martin, 732 F. 2d 591, 592 (CA7 1984). In other words, Congress seems clearly to have recognized that a felon who receives a firearm must also possess it, and thus had no intention of subjecting that person to two convictions for the same criminal act.

The legislative history of §§ 922(h) and 1202(a) supports this reading of congressional intent. Titles IV and VII, enacted together as components of the Omnibus Act, disclose “Congress’ worry about the easy availability of firearms, especially to those persons who pose a threat to community peace.” Lewis v. United States, 445 U. S. 55, 66 (1980). Accordingly, “[e]ach [Title] seeks to keep a firearm from ‘any person . . . who has been convicted’ of a felony . . . .” Id., at 64.

Section 922(h), the receipt statute, is part of a “‘carefully constructed package of gun control legislation,’ which had been in existence for many years.” Batchelder, 442 U. S., at 120 (quoting Scarborough v. United States, 431 U. S. 563, 570 (1977)). One principal purpose of Title IV was to make “it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency . . . S. Rep. No. 1097, 90th Cong., 2d Sess., 28 (1968).

Section 1202(a), on the other hand, was a “last-minute Senate amendment” to the Omnibus Act, “hastily passed, with little discussion, no hearings, and no report.” United States v. Bass, 404 U. S., at 344 (footnote omitted). The circumstances surrounding consideration of Title VII and the haste in which it was enacted may well explain why it does not dovetail neatly with the prohibition that was, at the time of its passage, already contained in Title IV. Title VII was enacted as supplementary legislation; Title VII filled the gaps in and expanded the coverage of Title IV. In short, we are persuaded that Congress had no intention of creating duplicative punishment for one limited class of persons falling within the overlap between the two Titles — convicted felons who receive firearms and who, by definition, possess them. The independent but overlapping statutes simply are not “directed to separate evils” under the circumstances. Albemaz, 450 U. S., at 343.

C

Having concluded that Congress did not intend petitioner’s conduct to be punishable under both §§ 922(h) and 1202(a), the only remedy consistent with the congressional intent is for the District Court, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions. The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress’ intention. One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U. S. 359, 368 (1983).

The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant’s eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant’s credibility and certainly carries the societal stigma accompanying any criminal conviction. See Benton v. Maryland, 395 U. S. 784, 790-791 (1969); Sibron v. New York, 392 U. S. 40, 54-56 (1968). Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.

We emphasize that while the Government may seek a multiple-count indictment against a felon for violations of §§ 922(h) and 1202(a) involving the same weapon where a single act establishés the receipt and possession, the accused may not suffer two convictions or sentences on that indictment. If, upon the trial, the district judge is satisfied that there is sufficient proof to go to the jury on both counts, he should instruct the jury as to the elements of each offense. Should the jury return guilty verdicts for each count, however, the district judge should enter judgment on only one of the statutory offenses.

Ill

We hold that Congress did not intend a convicted felon, in Ball’s position, to be convicted of both receiving a firearm in violation of 18 U. S. C. § 922(h), and possessing that firearm in violation of 18 U. S. C. App. § 1202(a). Accordingly, we vacate the judgment of the Court of Appeals and remand with instructions to have the District Court exercise its discretion to vacate one of the convictions.

It is so ordered.

Justice Marshall concurs in the judgment.

Justice Powell took no part in the decision of this case.

APPENDIX TO OPINION OF THE COURT

Title 18 U. S. C. § 922(h) provides:

“It shall be unlawful for any person—
“(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
“(2) is a fugitive from justice;
“(3) is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201(v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954); or
“(4) has been adjudicated as a mental defective or has been committed to any mental institution;
“to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

Title 18 U. S. C. § 924(a) provides in pertinent part:

“Whoever violates any provision of this chapter . . . shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.”

Title 18 U. S. C. App. § 1202(a) provides:

“Any person who—
“(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
“(2) has been discharged from the Armed Forces under dishonorable conditions, or
“(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or
“(4) having been a citizen of the United States has renounced his citizenship, or
“(5) being an alien is illegally or unlawfully in the United States,
“and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”

Justice Stevens,

concurring in the judgment.

The Court correctly holds that petitioner’s conduct may support a conviction under either § 922(h)(1) or § 1202(a)(1), but not both. In reaching that conclusion the Court unnecessarily volunteers the opinion that “there is no bar to the Government’s proceeding with prosecution simultaneously under the two statutes.” Ante, at 860; see also ante, at 859. Even if that opinion were well founded, I see no reason why this Court should go out of its way to encourage prosecutors to tilt the scales of justice against the defendant by employing such tactics.

The views that Justice Marshall expressed in his dissent in Missouri v. Hunter, 459 U. S. 359, 371-372 (1983), succinctly explain why I concur in the Court’s judgment today:

“[T]he entry of two convictions and the imposition of two sentences cannot be justified on the ground that the legislature could have simply created one crime but prescribed harsher punishment for that crime. This argument incorrectly assumes that the total sentence imposed is all that matters, and that the number of convictions that can be obtained is of no relevance to the concerns underlying the Double Jeopardy Clause.
“When multiple charges are brought, the defendant is ‘put in jeopardy’ as to each charge. To retain his freedom, the defendant must obtain an acquittal on all charges; to put the defendant in prison, the prosecution need only obtain a single guilty verdict. The prosecution’s ability to bring multiple charges increases the risk that the defendant will be convicted on one or more of those charges. The very fact that a defendant has been arrested, charged, and brought to trial on several charges may suggest to the jury that he must be guilty of at least one of those crimes. Moreover, where the prosecution’s evidence is weak, its ability to bring multiple charges may substantially enhance the possibility that, even though innocent, the defendant may be found guilty on one or more charges as a result of a compromise verdict. The submission of two charges rather than one gives the prosecution ‘the advantage of offering the jury a choice — a situation which is apt to induce a doubtful jury to find the defendant guilty of the less serious offense rather than to continue the debate as to his innocence.’ Cichos v. Indiana, 385 U. S. 76, 81 (1966) (Fortas, J., dissenting from dismissal of certiorari).”

Accordingly, I concur in the judgment.

       In October 1981, Elliot Brothers of South Carolina had shipped the revolver to McGlothlin’s Store in Honaker, Virginia. On February 22, 1982, MeGlothlin sold the gun to Romans.

       At the outset of the trial, the parties stipulated that Ball previously had been convicted of the state felony of threatening a dwelling house. App. 2-3.

       See Appendix to this opinion for the complete texts of the relevant statutes.

       The chain of sale described in n. 1, supra, established the interstate commerce connection required by the firearms statutes. See Barrett v. United States, 423 U. S. 212 (1976); Scarborough v. United States, 431 U. S. 563 (1977).

       The Tenth Circuit has held that a convicted felon may be convicted and sentenced cumulatively under both statutes. United States v. Larranaga, 614 F. 2d 239, 241 (1980). The Fifth, Ninth, and District of Columbia Circuits have concluded that the Government must elect to prosecute a convicted felon under one of the statutes. United States v. Larson, 625 F. 2d 67, 69 (CA5 1980); United States v. Conn, 716 F. 2d 550, 553 (CA9 1983); United States v. Girst, 207 App. D. C. 89, 92, 645 F. 2d 1014, 1017 (1979). The Fourth Circuit has decided that a convicted felon may be convicted under both statutes, but the separate sentences must run concurrently. United States v. Burton, 629 F. 2d 975, 977-978 (1980). The Third and Seventh Circuits have remanded cases to the District Courts in order to vacate one of the convictions and sentences. United States v. Taylor, 635 F. 2d 232, 233 (CA3 1980); United States v. Martin, 732 F. 2d 591, 593 (CA7 1984).

       We have no occasion to consider here whether a felon may be convicted of both offenses if he possessed a firearm on one occasion and, after giving up possession, later reacquired the gun, see, e. g., United States v. Robbins, 579 F. 2d 1151 (CA9 1978), or if he received and possessed different weapons at different times or in various places, see, e. g., United States v. Vance, 724 F. 2d 517 (CA6 1983); United States v. Filipponio, 702 F. 2d 664 (CA7 1983).

       Several Courts of Appeals have interpreted Batchelder to forbid the Government to proceed against a convicted felon in a single prosecution under §§ 922(h) and 1202(a). See, e. g., United States v. Larson, supra; United States v. Girst, supra; United States v. Conn, supra. These courts have relied upon the statement in Batchelder that “when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants,” 442 U. S, at 123-124, interpreting the reference to “either” statute to require the Government to proceed under only one of the two provisions. The Court’s observation was a response to the claim that the two statutes permitted excessive prosecutorial discretion because the Government could in effect choose the penalty to apply in a given case by proceeding under one statute instead of the other. The Court’s reference to “either” statute merely reaffirmed the Government’s discretion to charge under one statute rather than the other. The Court had no intention of restricting the Government to prosecuting for only a single offense, an issue not before the Court. This is confirmed by Batchelder’s conclusion that the two statutes are “each fully enforceable on [their] own terms.” Id., at 119.
      Given this congressional design, the Double Jeopardy Clause imposes no prohibition to simultaneous prosecutions. In Ohio v. Johnson, 467 U. S. 493 (1984), this Court held that even where the Clause bars cumulative punishment for a group of offenses, “the Clause does not prohibit the State from prosecuting [the defendant] for such multiple offenses in a single prosecution.” Id., at 500.

       Indeed, in United States v. Gaddis, 424 U. S. 544 (1976), the Court concluded that “there can be no impropriety ... for a prosecutor to file an information containing counts charging violations of” several different provisions of the federal bank robbery statute where there is evidence to support the charges, even though the defendant could not in the end stand convicted of both offenses. Id., at 550.

       As the Government suggests, the converse may not be true. For example, a felon may possess a firearm without having “received” it; he may have manufactured the gun himself. Brief for United States 13-14.

       Four months after enacting the Omnibus Act, the same Congress amended and reenacted Titles IV and VII as part of the Gun Control Act of 1968. 82 Stat. 1213. Congress renewed its effort to prohibit felons from having weapons. See, e. g., S. Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968); 114 Cong. Rec. 21784 (1968) (remarks of Rep. Celler). As the Court observed in Barrett v. United States, 423 U. S., at 220, the Gun Control Act “reflects a similar concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons.”

       Section 922(h) stemmed from §2(f) of the Federal Firearms Act of 1988, which had made it unlawful for “any person who has been convicted of a crime of violence or is a fugutive [sic] from justice to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce . . .,” 52 Stat. 1251. Section 922(h), although maintaining § 2(f )’s operative phrase, expanded the categories of persons prohibited from receiving firearms. See Appendix to this opinion.

       Senator Tydings, for example, explained that “Title VII. . . is . . . primarily designed to restrict access to handguns to criminals, juveniles, and fugitives.” 114 Cong. Rec. 13639 (1968). See also id., at 13868, 14773 (remarks of Sen. Long). For a concise review of Title VII’s surprisingly swift passage through the Congress, see Scarborough v. United States, 431 U. S. 563, 573-574 (1977); United States v. Bass, 404 U. S. 336, 344, n. 11 (1971).

       Each statute reaches substantial groups of people not covered by the other. Section 922(h), for example, covers persons who are under indictment for a felony, who are fugitives, and who are narcotics offenders. Section 1202(a), on the other hand, covers persons dishonorably discharged from the service, illegal aliens, and persons who have renounced their citizenship. Senator Long explained that the assortment of persons brought within the ambit of § 1202(a) reflected those responsible for the rash of assassinations and publicized murders in “recent history,” which included the deaths of President Kennedy and Martin Luther King, Jr., as well as the murders of several civil rights workers in the South. 114 Cong. Rec. 14773 (1968). Only two groups — convicted felons and adjudicated mental incompetents — fall within the overlap between the two provisions. There is no suggestion in the legislative history that these persons pose a greater threat to society such that Congress thought they deserved to be punished more severely, i. e., under both statutes for a single act.

       This appears to be the import of the Government’s concession in Taylor v. United States, 624 F. 2d 1092 (CA3), vacated and remanded, 449 U. S. 895 (1980), where the petitioner’s consecutive sentences for violating §§ 922(h) and 1202(a) had been upheld by the Court of Appeals under circumstances identical to those presented in this case. Before this Court, the Government acknowledged that “since receipt of a firearm will almost necessarily entail possession of that firearm ... we agree with petitioner that it is unlikely that Congress intended to permit consecutive punishment in the circumstances presented here.” Memorandum for United States in Taylor v. United States, O. T. 1980, No. 80-5187, pp. 2-3.

      The following footnote is appended to the quoted passage:
      “It is true that compromise is possible even under the familiar procedure whereby a lesser included offense is submitted along with a greater offense and the jury is told that it can convict on only one charge. Under the usual procedure, however, the risk of an irrational compromise is reduced by the rule that a lesser included offense will not be submitted to the jury if the element that distinguishes the two offenses is not in dispute. See, e. g., Sansone v. United States, 380 U. S. 343 (1965); United States v. Tsanas, 572 F. 2d 340, 345-346 (CA2), cert. denied, 435 U. S. 995 (1978).” 459 U. S., at 372, n. 4 (Marshall, J., dissenting).


source: Caselaw Access Project

author: Justice Powell Justice O’Connor,

license: Public Domain

text:
    METROPOLITAN LIFE INSURANCE CO. et al. v. WARD et al.
    No. 83-1274.
    Argued October 31, 1984
    Decided March 26, 1985

      Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Stevens, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Brennan, Marshall, and Rehnquist, JJ., joined, post, p. 883.

      Matthew J. Zinn argued the cause for appellants. With him on the briefs was Steven Reed.

      Warren B. Lightfoot argued the cause for appellees. With him on the brief for appellee Ward were E. Mabry Rogers and Phillip E. Stano. Robert W. Bradford, Jr., and Harry Cole filed a brief for appellees American Educators Life Insurance Co. et al.

      Briefs of amici curiae urging reversal were filed for the State of Connecticut et al. by Dennis J. Roberts II, Attorney General of Rhode Island, Frances X. Bellotti, Attorney General of Massachusetts, Gregory H. Smith, Attorney General of New Hampshire, Joseph I. Lieberman, Attorney General of Connecticut, Elliot F. Gerson, Deputy Attorney General, and John G. Haines, Assistant Attorney General; and for the Life Insurance Council of New York by Peter J. Flanagan.

      Briefs of amici curiae urging affirmance were filed for the State of Alaska et al. by Anthony Celebrezze, Jr., Attorney General of Ohio, and Connie J. Harris, Assistant Attorney General, Dave Frohnmayer, Attorney General of Oregon, William F. Gary, Deputy Attorney General, and James E. Mountain, Jr., Solicitor General, Jim Mattox, Attorney General of Texas, and Henry H. Robinson, Assistant Attorney General; for the State of Illinois by Neil F. Hartigan, Attorney General, and Patricia Rosen and Kathryn A. Spalding, Assistant Attorneys General; for Allstate Insurance Co. et al. by Duane C. Quaini; for the Florida Association of Domestic Insurance Companies, Inc., et al. by Robert W. Perkins and Samuel R. Neel III.

   Justice Powell

delivered the opinion of the Court.

This case presents the question whether Alabama’s domestic preference tax statute, Ala. Code §§27-4-4 and 27-4-5 (1975), that taxes out-of-state insurance companies at a higher rate than domestic insurance companies, violates the Equal Protection Clause.

I

Since 1955, the State of Alabama has granted a preference to its domestic insurance companies by imposing a substantially lower gross premiums tax rate on them than on out-of-state (foreign) companies. Under the current statutory provisions, foreign life insurance companies pay a tax on their gross premiums received from business conducted in Alabama at a rate of three percent, and foreign companies selling other types of insurance pay at a rate of four percent. Ala. Code § 27-4-4(a) (1975). All domestic insurance companies, in contrast, pay at a rate of only one percent on all types of insurance premiums. § 27-4-5(a). As a result, a foreign insurance company doing the same type and volume of business in Alabama as a domestic company generally will pay three to four times as much in gross premiums taxes as its domestic competitor.

Alabama’s domestic preference tax statute does provide that foreign companies may reduce the differential in gross premiums taxes by investing prescribed percentages of their worldwide assets in specified Alabama assets and securities. §27-4-4(b). By investing 10 percent or more of its total assets in Alabama investments, for example, a foreign life insurer may reduce its gross premiums tax rate from 3 to 2 percent. Similarly, a foreign property and casualty insurer may reduce its tax rate from four to three percent. Smaller tax reductions are available based on investment of smaller percentages of a company’s assets. Ibid. Regardless of how much of its total assets a foreign company places in Alabama investments, it can never reduce its gross premiums tax rate to the same level paid by comparable domestic companies. These are entitled to the one-percent tax rate even if they have no investments in the State. Thus, the investment provision permits foreign insurance companies to reduce, but never to eliminate, the discrimination inherent in the domestic preference tax statute.

Appellants, a group of insurance companies incorporated outside of the State of Alabama, filed claims with the Alabama Department of Insurance in 1981, contending that the domestic preference tax statute, as applied to them, violated the Equal Protection Clause. They sought refunds of taxes paid for the tax years 1977 through 1980. The Commissioner of Insurance denied all of their claims on July 8, 1981.

Appellants appealed to the Circuit Court for Montgomery County, seeking a judgment declaring the statute to be unconstitutional and requiring the Commissioner to make the appropriate refunds. Several domestic companies intervened, and the court consolidated all of the appeals, selecting two claims as lead cases to be tried and binding on all claimants. On cross-motions for summary judgment, the court ruled on May 17, 1982, that the statute was constitutional. Relying on this Court’s opinion in Western & Southern Life Ins. Co. v. State Board of Equalization of California, 451 U. S. 648 (1981), the court ruled that the Alabama statute did not violate the Equal Protection Clause because it served “at least two purposes, in addition to raising revenue: (1) encouraging the formation of new insurance companies in Alabama, and (2) encouraging capital investment by foreign insurance companies in the Alabama assets and governmental securities set forth in the statute.” App. to Juris. Statement 20a-21a. ‘The court also found that the distinction the statute created between foreign and domestic companies was rationally related to those two purposes and that the Alabama Legislature reasonably could have believed that the classification would have promoted those purposes. Id., at 21a.

After their motion for a new trial was denied, appellants appealed to the Court of Civil Appeals. It affirmed the Circuit Court’s rulings as to the existence of the two legitimate state purposes, but remanded for an evidentiary hearing on the issue of rational relationship, concluding that summary judgment was inappropriate on that question because the evidence was in conflict. 437 So. 2d 535 (1983). Appellants petitioned the Supreme Court of Alabama for certiorari on the affirmance of the legitimate state purpose issue, and the State and the intervenors petitioned for review of the remand order. Appellants then waived their right to an evidentiary hearing on the issue whether the statute’s classification bore a rational relationship to the two purposes found by the Circuit Court to be legitimate, and they requested a final determination of the legal issues with respect to their equal protection challenge to the statute. The Supreme Court denied certiorari on all claims. Appellants again waived their rights to an evidentiary hearing on the rational relationship issue and filed a joint motion with the other parties seeking rehearing and entry of a final judgment. The motion was granted, and judgment was entered for the State and the intervenors. 447 So. 2d 142 (1983). This appeal followed, and we noted probable jurisdiction. 466 U. S. 935 (1984). We now reverse.

h-H h-H h-H

Prior to our decision in Western & Southern Life Ins. Co. v. State Board of Equalization of California, supra, the jurisprudence of the applicability of the Equal Protection Clause to discriminatory tax statutes had a somewhat checkered history. Lincoln National Life Ins. Co. v. Read, 325 U. S. 673 (1945), held that so-called “privilege” taxes, required to be paid by a foreign corporation before it would be permitted to do business within a State, were immune from equal protection challenge. That case stood in stark contrast, however, to the Court’s prior decisions in Southern R. Co. v. Greene, 216 U. S. 400 (1910), and Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 (1926), as well as to later decisions, in which the Court had recognized that the Equal Protection Clause placed limits on other forms of discriminatory taxation imposed on out-of-state corporations solely because of their residence. See, e. g., WHYY, Inc. v. Glassboro, 393 U. S. 117 (1968); Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522 (1959); Wheeling Steel Corp. v. Glander, 337 U. S. 562 (1949).

In Western & Southern, supra, we reviewed all of these cases for the purpose of deciding whether to permit an equal protection challenge to a California statute imposing a retaliatory tax on foreign insurance companies doing business within the State, when the home States of those companies imposed a similar tax on California insurers entering their borders. We concluded that Lincoln was no more than “a surprising throwback” to the days before enactment of the Fourteenth Amendment and in which incorporation of a domestic corporation or entry of a foreign one had been granted only as a matter of privilege by the State in its unfettered discretion. 451 U. S., at 665. We therefore rejected the longstanding but “anachronis[tic]” rule of Lincoln and explicitly held that the Equal Protection Clause imposes limits upon a State’s power to condition the right of a foreign corporation to do business within its borders. 451 U. S., at 667. We held that “[w]e consider it now established that, whatever the extent of a State’s authority to exclude foreign corporations from doing business within its boundaries, that authority does not justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose.” Id., at 667-668.

Because appellants waived their right to an evidentiary hearing on the issue whether the classification in the Alabama domestic preference tax statute bears a rational relation, to the two purposes upheld by the Circuit Court, the only question before us is whether those purposes are legitimate.

A

(1)

The first of the purposes found by the trial court to be a legitimate reason for the statute’s classification between foreign and domestic corporations is that it encourages the formation of new domestic insurance companies in Alabama. The State, agreeing with the Court of Civil Appeals, contends that this Court has long held that the promotion of domestic industry, in and of itself, is a legitimate state purpose that will survive equal protection scrutiny. In so contending, it relies on a series of cases, including 'Western & Southern, that are said to have upheld discriminatory taxes. See Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984); Pike v. Bruce Church, Inc., 397 U. S. 137 (1970); Allied Stores of Ohio, Inc. v. Bowers, supra; Parker v. Brown, 317 U. S. 341 (1943); Carmichael v. Southern Coal & Coke Co., 301 U. S. 495 (1937); Board of Education v. Illinois, 203 U. S. 553 (1906).

The cases cited lend little or no support to the State’s contention. In Western & Southern, the case principally relied upon, we did not hold as a general rule that promotion of domestic industry is a legitimate state purpose under equal protection analysis. Rather, we held that California’s purpose in enacting the retaliatory tax — to promote the interstate business of domestic insurers by deterring other States from enacting discriminatory or excessive taxes — was a legitimate one. 451 U. S., at 668. In contrast, Alabama asks us to approve its purpose of promoting the business of its domestic insurers in Alabama by penalizing foreign insurers who also want to do business in the State. Alabama has made no attempt, as California did, to influence the policies of other States in order to enhance its domestic companies’ ability to operate interstate; rather, it has erected barriers to foreign companies who wish to do interstate business in order to improve its domestic insurers’ ability to compete at home.

The crucial distinction between the two cases lies in the fact that Alabama’s aim to promote domestic industry is purely and completely discriminatory, designed only to favor domestic industry within the State, no matter what the cost to foreign corporations also seeking to do business there. Alabama’s purpose, contrary to California’s, constitutes the very sort of parochial discrimination that the Equal Protection Clause was intended to prevent. As Justice Brennan, joined by Justice Harlan, observed in his concurrence in Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522 (1959), this Court always has held that the Equal Protection Clause forbids a State to discriminate in favor of its own residents solely by burdening “the residents of other state members of our federation.” Id., at 533. Unlike the retaliatory tax involved in Western & Southern, which only burdens residents of a State that imposes its own discriminatory tax on outsiders, the domestic preference tax gives the “home team” an advantage by burdening all foreign corporations seeking to do business within the State, no matter what they or their States do.

The validity of the view that a State may not constitutionally favor its own residents by taxing foreign corporations at a higher rate solely because of their residence is confirmed by a long line of this Court’s cases so holding. WHYY, Inc. v. Glassboro, 393 U. S., at 119-120; Wheeling Steel Corp. v. Glander, 337 U. S., at 571; Hanover Fire Ins. Co. v. Harding, 272 U. S., at 511; Southern R. Co. v. Greene, 216 U. S., at 417. See Reserve Life Ins. Co. v. Bowers, 380 U. S. 258 (1965) (per curiam). As the Court stated in Hanover Fire Ins. Co., with respect to general tax burdens on business, “the foreign corporation stands equal, and is to be classified with domestic corporations of the same kind.” 272 U. S., at 511. In all of these cases, the discriminatory tax was imposed by the State on foreign corporations doing business within the State solely because of their residence, presumably to promote domestic industry within the State. In relying on these cases and rejecting Lincoln in Western & Southern, we reaffirmed the continuing viability of the Equal Protection Clause as a means of challenging a statute that seeks to benefit domestic industry within the State only by grossly discriminating against foreign competitors.

The State contends that Allied Stores of Ohio, Inc. v. Bowers, supra, shows that this principle has not always held true. In that case, a domestic merchandiser challenged on equal protection grounds an Ohio statute that exempted foreign corporations from a tax on the value of merchandise held for storage within the State. The Court upheld the tax, finding that the purpose of encouraging foreign companies to build warehouses within Ohio was a legitimate state purpose. The State contends that this case shows that promotion of domestic business is a legitimate state purpose under equal protection analysis.

We disagree with the State’s interpretation of Allied Stores and find that the case is not inconsistent with the other cases on which we rely. We agree with the holding of Allied Stores that a State’s goal of bringing in new business is legitimate and often admirable. Allied Stores does not, however, hold that promotion of domestic business by discriminating against foreign corporations is legitimate. The case involves instead a statute that encourages nonresidents— who are not competitors of residents — to build warehouses within the State. The discriminatory tax involved did not favor residents by burdening outsiders; rather, it granted the nonresident businesses an exemption that residents did not share. Since the foreign and domestic companies involved were not competing to provide warehousing services, granting the former an exemption did not even directly affect adversely the domestic companies subject to the tax. On its facts, then, Allied Stores is not inconsistent with our holding here that promotion of domestic business within a State, by discriminating against foreign corporations that wish to compete by doing business there, is not a legitimate state purpose. See 358 U. S., at 532-533 (Brennan, J., concurring).

(2)

The State argues nonetheless that it is impermissible to view a discriminatory tax such as the one at issue here as violative of the Equal Protection Clause. This approach, it contends, amounts to no more than “Commerce Clause rhetoric in equal protection clothing.” Brief for Appellee Ward 22. The State maintains that because Congress, in enacting the McCarran-Ferguson Act, 15 U. S. C. §§ 1011-1015, intended to authorize States to impose taxes that burden interstate commerce in the insurance field, the tax at issue here must stand. Our concerns are much more fundamental than as characterized by the State. Although the McCarran-Ferguson Act exempts the insurance industry from Commerce Clause restrictions, it does not purport to limit in any way the applicability of the Equal Protection Clause. As noted above, our opinion in Western & Southern expressly reaffirmed the viability of equal protection restraints on discriminatory taxes in the insurance context.

Moreover, the State’s view ignores the differences between Commerce Clause and equal protection analysis and the consequent different purposes those two constitutional provisions serve. Under Commerce Clause analysis, the State’s interest, if legitimate, is weighed against the burden the state law would impose on interstate commerce. In the equal protection context, however, if the State’s purpose is found to be legitimate, the state law stands as long as the burden it imposes is found to be rationally related to that purpose, a relationship that is not difficult to establish. See Western & Southern, 451 U. S., at 674 (if purpose is legitimate, equal protection challenge may not prevail so long as the question of rational relationship is “ ‘at least debatable’ ” (quoting United States v. Carotene Products Co., 304 U. S. 144, 154 (1938)).

The two constitutional provisions perform different functions in the analysis of the permissible scope of a State’s power — one protects interstate commerce, and the other protects persons from unconstitutional discrimination by the States. See Bethlehem Motors Corp. v. Flynt, 256 U. S. 421, 423-424 (1921). The effect of the statute at issue here is to place a discriminatory tax burden on foreign insurers who desire to do business within the State, thereby also incidentally placing a burden on interstate commerce. Equal protection restraints are applicable even though the effect of the discrimination in this case is similar to the type of burden with which the Commerce Clause also would be concerned. We reaffirmed the importance of the Equal Protection Clause in the insurance context in Western & Southern and see no reason now for reassessing that view.

In whatever light the State’s position is cast, acceptance of its contention that promotion of domestic industry is always a legitimate state purpose under equal protection analysis would eviscerate the Equal Protection Clause in this context. A State’s natural inclination frequently would be to prefer domestic business over foreign. If we accept the State’s view here, then any discriminatory tax would be valid if the State could show it reasonably was intended to benefit domestic business. A discriminatory tax would stand or fall depending primarily on how a State framed its purpose— as benefiting one group or as harming another. This is a distinction without a difference, and one that we rejected last Term in an analogous context arising under the Commerce Clause. Bacchus Imports, Ltd. v. Dias, 468 U. S., at 273. See n. 6, supra. We hold that under the circumstances of this case, promotion of domestic business by discriminating against nonresident competitors is not a legitimate state purpose.

B

The second purpose found by the courts below to be legitimate was the encouragement of capital investment in the Alabama assets and governmental securities specified in the statute. We do not agree that this is a legitimate state purpose when furthered by discrimination. Domestic insurers remain entitled to the more favorable rate of tax regardless of whether they invest in Alabama assets. Moreover, the investment incentive provision of the Alabama statute does not enable foreign insurance companies to eliminate the discriminatory effect of the statute. No matter how much of their assets they invest in Alabama, foreign insurance companies are still required to pay a higher gross premiums tax than domestic companies. The State’s investment incentive provision therefore does not cure, but reaffirms, the statute’s impermissible classification based solely on residence. We hold that encouraging investment in Alabama assets and securities in this plainly discriminatory manner serves no legitimate state purpose.

IV

We conclude that neither of the two purposes furthered by the Alabama domestic preference tax statute and addressed by the Circuit Court for Montgomery County, see supra, at 873, is legitimate under the Equal Protection Clause to justify the imposition of the discriminatory tax at issue here. The judgment of the Alabama Supreme Court accordingly is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice O’Connor,

with whom Justice Brennan, Justice Marshall, and Justice Rehnquist join,

dissenting.

This case presents a simple question: Is it legitimate for a State to use its taxing power to promote a domestic insurance industry and to encourage capital investment within its borders? In a holding that can only be characterized as astonishing, the Court determines that these purposes are illegitimate. This holding is unsupported by precedent and subtly distorts the constitutional balance, threatening the freedom of both state and federal legislative bodies to fashion appropriate classifications in economic legislation. Because I disagree with both the Court’s method of analysis and its conclusion, I respectfully dissent.

HH

Alabama s legislature has chosen to impose a higher tax on out-of-state insurance companies and insurance companies incorporated in Alabama that do not maintain their principal place of business or invest assets within the State. Ala. Code §27-4-4 et seq. (1975). This tax seeks to promote both a domestic insurance industry and capital investment in Alabama. App. to Juris. Statement 20a-21a. Metropolitan Life Insurance Company, joined by many other out-of-state insurers, alleges that this discrimination violates its rights under the Equal Protection Clause of the Fourteenth Amendment, which provides that a State shall not “deny to any person within its jurisdiction the equal protection of the laws.” Appellants rely on the Equal Protection Clause because, as corporations, they are not “citizens” protected by the Privileges and Immunities Clauses of the Constitution. Hemphill v. Orloff, 277 U. S. 537, 548-550 (1928). Similarly, they cannot claim Commerce Clause protection because Congress in the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U. S. C. §1011 et seq., explicitly suspended Commerce Clause restraints on state taxation of insurance and placed insurance regulation firmly within the purview of the several States. Western & Southern Life Ins. Co. v. State Board of Equalization of California, 451 U. S. 648, 655 (1981).

Our precedents impose a heavy burden on those who challenge local economic regulation solely on Equal Protection Clause grounds. In this context, our long-established jurisprudence requires us to defer to a legislature’s judgment if the classification is rationally related to a legitimate state purpose. Yet the Court evades this careful framework for analysis, melding the proper two-step inquiry regarding the State’s purpose and the classification’s relationship to that purpose into a single unarticulated judgment. This tactic enables the Court to characterize state goals that have been legitimated by Congress itself as improper solely because it disagrees with the concededly rational means of differential taxation selected by the legislature. This unorthodox approach leads to further error. The Court gives only the most cursory attention to the factual and legal bases supporting the State’s purposes and ignores both precedent and significant evidence in the record establishing their legitimacy. Most troubling, the Court discovers in the Equal Protection Clause an implied prohibition against classifications whose purpose is to give the “home team” an advantage over interstate competitors even where Congress has authorized such advantages. Ante, at 878.

The Court overlooks the unequivocal language of our prior decisions. “Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.” New Orleans v. Dukes, 427 U. S. 297, 303 (1976). See, e. g., Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356 (1973). Judicial deference is strongest where a tax classification is alleged to infringe the right to equal protection. “[I]n taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” Madden v. Kentucky, 309 U. S. 83, 88 (1940). “Where the public interest is served one business may be left untaxed and another taxed, in order to promote the one or to restrict or suppress the other.” Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 512 (1937) (citations omitted). As the Court emphatically noted in Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522, 528 (1959) (citations omitted):

“[I]t has repeatedly been held and appears to be entirely settled that a statute which encourages the location within the State of needed and useful industries by exempting them, though not also others, from its taxes is not arbitrary and does not violate the Equal Protection Clause of the Fourteenth Amendment. Similarly, it has long been settled that a classification, though discriminatory, is not arbitrary or violative of the Equal Protection Clause of the Fourteenth Amendment if any state of facts reasonably can be conceived that would sustain it.”

See also Western & Southern Life Ins. Co. v. State Board of Equalization of California, supra, at 674; Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 464 (1981).

Appellants waived their right to an evidentiary hearing and conceded that Alabama’s classification was rationally related to its purposes of encouraging the formation of domestic insurance companies and bringing needed services and capital to the State. Thus the only issue in dispute is the legitimacy of these purposes. Yet it is obviously legitimate for a State to seek to promote local business and attract capital investment, and surely those purposes animate a wide range of legislation in all 50 States.

The majority evades the obvious by refusing to acknowledge the factual background bearing on the legitimacy of the State’s purpose or to address the many collateral public benefits advanced by Alabama. Instead, the Court dismisses appellees’ arguments by merely stating that they were not ruled on by the courts below. Ante, at 875-876, n. 5. In point of fact, the full range of purposes documented before this Court was also argued and documented before the Alabama Circuit Court. See Record, Vols. 6-8. That court found “at least two purposes, in addition to raising revenue: (1) encouraging the formation of new insurance companies in Alabama, and (2) encouraging capital investment by foreign insurance companies in the Alabama assets and governmental securities set forth in the statute.” App. to Juris. Statement 20a-21a (emphasis added). As appellants concede, these purposes are simply a step in achieving the “larger set of purposes [whose] premise ... is that domestic insurance companies, on the whole, benefit the state in ways which foreign companies do not.” Brief for Appellants 31.

In any event, it is settled law that the appellee may assert any argument in support of the judgment in his favor, regardless of whether it was relied upon by the court below. Dandridge v. Williams, 397 U. S. 471, 475, n. 6 (1970). The Court’s failure actually to resolve whether Alabama may continue to collect its tax, see ante, at 882, n. 10, is all the more baffling, since appellants took the exceptional step of conceding the factual issues to assure a speedy resolution of numerous pending lawsuits disruptive of industry stability. See Brief for State of Alaska et al. as Amici Curiae 1-2. Our precedents do not condone such a miserly approach to review of statutes adjusting economic burdens. See, e. g., Allied Stores of Ohio, Inc. v. Bowers, supra, at 528-529; McGowan v. Maryland, 366 U. S. 420, 425 (1961); United States v. Carotene Products Co., 304 U. S. 144, 152-153 (1938); Borden’s Farm Products Co. v. Baldwin, 293 U. S. 194, 209 (1934). The Court has consistently reviewed the validity of such statutes based on whatever “may reasonably have been the purpose and policy of the State Legislature, in adopting the proviso.” Allied Stores of Ohio, Inc. v. Bowers, supra, at 528-529. It is to that inquiry that I now turn.

Appellees claim that Alabama’s insurance tax, in addition to raising revenue and promoting investment, promotes the formation of new domestic insurance companies and enables them to compete with the many large multistate insurers that currently occupy some 75% to 85% of the Alabama insurance market. App. 80. Economic studies submitted by the State document differences between the two classes of insurers that are directly relevant to the well-being of Alabama’s citizens. See id., at 46-129. Foreign insurers typically concentrate on affluent, high volume, urban markets and offer standardized national policies. In contrast, domestic insurers such as intervenors American Educators Life Insurance Company and Booker T. Washington Life Insurance Company are more likely to serve Alabama’s rural areas, and to write low-cost industrial and burial policies not offered by the larger national companies. Additionally, appellees argue persuasively that Alabama can more readily regulate domestic insurers and more effectively safeguard their solvency than that of insurers domiciled and having their principal places of business in other States.

Ignoring these policy considerations, the Court insists that Alabama seeks only to benefit local business, a purpose the Court labels invidious. Yet if the classification chosen by the State can be shown actually to promote the public welfare, this is strong evidence of a legitimate state purpose. See Note, Taxing Out-of-State Corporations After Western & Southern: An Equal Protection Analysis, 34 Stan. L. Rev. 877, 896 (1982). In this regard, Justice Frankfurter wisely observed:

“[T]he great divide in the [equal protection] decisions lies in the difference between emphasizing the actualities or the abstractions of legislation.
“. . . To recognize marked differences that exist in fact is living law; to disregard practical differences and concentrate on some abstract identities is lifeless logic.” Morey v. Doud, 354 U. S. 457, 472 (1957) (dissenting).

A thoughtful look at the “actualities of [this] legislation” compels the conclusion that the State’s goals are legitimate by any test.

II

The policy of favoring local concerns in state regulation and taxation of insurance, which the majority condemns as illegitimate, is not merely a recent invention of the States. The States initiated regulation of the business of insurance as early as 1851. See Report of the Comptroller General, Issues and Needed Improvements in State Regulation of the Insurance Business, GAO Report B-192813, p. 5 (Oct. 9,1979) (GAO Report). In 1944, however, this Court overruled a long line of cases holding that the business of insurance was an intrastate activity beyond the scope of the Commerce Clause. United States v. South-Eastern Underwriters Assn., 322 U. S. 533. “The decision provoked widespread concern that the States would no longer be able to engage in taxation and effective regulation of the insurance industry. Congress moved quickly, enacting the McCarran-Ferguson Act within a year of the decision in South-Eastern Underwriters.” St. Paul Fire & Marine Insurance Co. v. Barry, 438 U. S. 531, 539 (1978). See H. R. Rep. No. 143, 79th Cong., 1st Sess., 2 (1945); 91 Cong. Rec. 479-480 (1945) (remarks of Sen. Ferguson); id., at 487 (remarks of Sen. Ellender).

The drafters of the Act were sensitive to the same concerns Alabama now vainly seeks to bring to this Court’s attention: the greater responsiveness of local insurance companies to local conditions, the different insurance needs of rural and industrial States, the special advantages and constraints of state-by-state regulation, and the importance of insurance license fees and taxes as a major source of state revenues. See, e. g., Hearings on S. 1362 before the Senate Subcommittee on the Judiciary, 78th Cong., 1st Sess., 3, 10, 16-17 (1943) (letter of Gov. Sharpe of South Dakota stressing role of domestic insurers that provide “poor man” and rural policies adapted to farming concerns); 90 Cong. Rec. 6564 (1944) (remarks of Rep. Vorhis). “As this Court observed shortly afterward, ‘[ojbviously Congress’ purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance.’ Prudential Insurance Co. v. Benjamin, 328 U. S. 408, 429 (1946).” St. Paul Fire & Marine Insurance Co. v. Barry, supra, at 539.

The majority opinion correctly notes that Congress did not intend the McCarran-Ferguson Act to give the States any power to tax or regulate the insurance industry other than they already possessed. But the legislative history cited by the majority, ante, at 879, n. 7, relates not to differential taxation but to decisions of this Court that had invalidated state taxes on contracts of insurance entered into outside the State’s jurisdiction. See H. R. Rep. No. 143, 79th Cong., 1st Sess., 3 (1945). The Court fails to mention that at the time the Act was under consideration the taxing schemes of Alabama, Arizona, Arkansas, Illinois, Kansas, Kentucky, Maine, Michigan, Mississippi, Ohio, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Washington, and Wisconsin all incorporated tax differentials favoring domestic insurers. See App. 377-379.

Any doubt that Congress’ intent encompassed taxes that discriminate in favor of local insurers was dispelled in Prudential Insurance Co. v. Benjamin, 328 U. S. 408 (1946). Cf. Note, Congressional Consent to Discriminatory State Legislation, 45 Colum. L. Rev. 927 (1945) (discussing the issues of constitutional power posed by the Act). There a foreign insurer challenged a tax on annual gross premiums imposed on foreign but not domestic insurers as a condition for renewal of its license to do business. Congress, the foreign insurer argued, was powerless to sanction the tax at issue because “the commerce clause ‘by its own force’ forbids discriminatory state taxation.” 328 U. S., at 426. A unanimous Court rejected the argument that exacting a 3% gross premium tax from foreign insurers was invalid as “somehow technically of an inherently discriminatory character.” Id., at 432. The Court concluded that the McCarran-Ferguson Act’s effect was “clearly to sustain the exaction and that this can be done without violating any constitutional provision.” Id., at 427 (emphasis added).

Benjamin expressly noted that nothing in the Equal Protection Clause forbade the State to enact a law such as the tax at issue. Id., at 438, and n. 50. In this regard the Court relied in part on Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 (1926), a decision that explicitly recognized that differential taxation of revenues of foreign corporations may not be arbitrary or without reasonable basis. See Western & Southern Life Ins. Co. v. State Board of Equalization of California, 451 U. S., at 664, n. 17. The Commerce Clause, Benjamin emphasized, is not a “one-way street” but encompasses congressional power “to discriminate against interstate commerce and in favor of local trade,” “subject only to the restrictions placed upon its authority by other constitutional provisions.” 328 U. S., at 434. Where the States and Congress have acted in concert to effect a policy favoring local concerns, their action must be upheld unless it unequivocally exceeds “some explicit and compelling limitation imposed by a constitutional provision or provisions designed and intended to outlaw the action taken entirely from our constitutional framework.” Id., at 435-436.

Our more recent decision in Western & Southern in no way undermines the force of the analysis in Benjamin. Western & Southern confirms that differential premium taxes are not immune from review as “privilege” taxes, but it also teaches that the Constitution requires only that discrimination between domestic and foreign corporations bear a rational relationship to a legitimate state purpose. Benjamin clearly recognized that differentially taxing foreign insurers to promote a local ■ insurance industry was a legitimate state purpose completely consonant with Congress’ purpose in the McCarran-Ferguson Act.

The contemporary realities of insurance regulation and taxation continue to justify a uniquely local perspective. Insurance regulation and taxation must serve local social policies including assuring the solvency and reliability of companies doing business in the State and providing special protection for those who might be denied insurance in a free market, such as the urban poor, small businesses, and family farms. GAO Report 10-13; State Insurance Regulation, Hearing before the Subcommittee on Antitrust, Monopoly and Business Rights of the Senate Committee on the Judiciary, 96th Cong., 1st Sess., 19-21 (1979) (hereinafter Insurance Regulation). Currently at least 28 of the 50 States employ a combination of investment incentives and differential premium taxes favoring domestic insurers to encourage local investment of policyholders’ premiums and to partially shelter smaller domestic insurers from competition with the large multistate companies. App. 66.

State insurance commissions vary widely in manpower and expertise. GAO Report 14. In practice, the State of incorporation exercises primary oversight of the solvency of its insurers. Id,., at 36-38. See generally Dunne, Risk, Reality, and Reason in Financial Services Deregulation: A State Legislative Perspective, 2 J. Ins. Reg. 342 (1984) (prepared by the Conference of Insurance Legislators). See, e. g., Ala. Code §27-2-21 (Supp. 1984); Ill. Rev. Stat., ch. 73, ¶745 (1983) (power to examine books of domestic insurers); Ala. Code §27-32-1 et seq. (1975); Ill. Rev. Stat., ch. 73, ¶¶799, 800 (1983) (commissioner’s authority to assume control to prevent insolvency); see generally Wis. Stat. Ann., ch. 620, Prefatory Committee Comment — 1971, pp. 536, 546 (1980) (noting lesser control over nondomestic’s financial operations). Even the State of incorporation’s efforts to regulate a multistate insurer may be seriously hampered by the difficulty of gaining access to records and assets in 49 other States. Dunne, swpra, at 356. Thus the security of Alabama’s citizens who purchase insurance from out-of-state companies may depend in part on the diligence of another State’s insurance commissioner, over whom Alabama has no authority and limited influence. In the event of financial failure of a foreign insurer the State may have difficulty levying on out-of-state assets. See, e. g., South Carolina ex rel. Phoenix Life Ins. Co. v. McMaster, 237 U. S. 63, 73 (1915). Since each State maintains its own insurance guarantee fund,, the domestic insurers of the States where a multistate insurer is admitted to do business may ultimately be forced to absorb local policyholders’ losses. Dunne, supra, at 372-373.

Many have sharply criticized this piecemeal system, see, e. g., GAO Report i-iii; Schmalz, The Insurance Exemption: Can it be Modified Successfully?, 48 ABA Antitrust L. J. 579 (1979), but Congress has resisted suggestions that it modify the McCarran-Ferguson Act to permit greater federal intervention. See GAO Report 1; Insurance Regulation, supra. This Court cannot ignore the exigencies of contemporary insurance regulation outlined above simply because it might prefer uniform federal regulation. Given the distinctions in ease of regulation and services rendered by foreign and' domestic insurers, we cannot dismiss as illegitimate the State’s goal of promoting a healthy local insurance industry sensitive to regional differences and composed of companies that agree to subordinate themselves to the Alabama Commissioner’s control and to maintain a principal place of business within Alabama’s borders. Though economists might dispute the efficacy of Alabama’s tax, “[p]arties challenging legislation under the Equal Protection Clause cannot prevail so long as ‘it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable.’” Western & Southern Life Ins. Co. v. State Board of Equalization of California, 451 U. S., at 674, quoting United States v. Carolene Products Co., 304 U. S., at 154. Moreover, appellants waived their right to challenge the tax measure’s effectiveness.

I — I HH HH

Despite abundant evidence of a legitimate state purpose, the majority condemns Alabama’s tax as “purely and completely discriminatory” and “the very sort of parochial discrimination that the Equal Protection Clause was intended to prevent.” Ante, at 878. Apparently, the majority views any favoritism of domestic commercial entities as inherently suspect. The majority ignores a long line of our decisions. In the past this Court has not hesitated to apply the rational basis test to regulatory classifications that distinguish between domestic and out-of-state corporations or burden foreign interests to protect local concerns. The Court has always recognized that there are certain legitimate restrictions or policies in which, “[b]y definition, discrimination against nonresidents would inhere.” Arlington County Board v. Richards, 434 U. S. 5, 7 (1977) (per curiam). For example, where State of incorporation or principal place of business affect the State’s ability to regulate or exercise its jurisdiction, a State may validly discriminate between foreign and domestic entities. See G. D. Searle & Co. v. Cohn, 455 U. S. 404 (1982) (difficulty of obtaining jurisdiction over nonresident corporation provides a rational basis for excepting such corporations from statute of limitations); Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580 (1935) (domicile of insurer relevant to statute of limitations as foreign insurers’ offices and funds generally located outside State); Board of Education v. Illinois, 203 U. S. 553, 562 (1906) (State’s greater control over domestic than foreign nonprofit corporations justifies discriminatory tax).

A State may use its taxing power to entice useful foreign industry, see Allied Stores of Ohio, Inc. v. Bowers, 358 U. S., at 528, or to make residence within its boundaries more attractive, see Zobel v. Williams, 457 U. S. 55,67-68 (1982) (Brennan, J., concurring). Though such measures might run afoul of the Commerce Clause, “[n]o one disputes that a State may enact laws pursuant to its police powers that have the purpose and effect of encouraging domestic industry.” Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 271 (1984); Western & Southern Life Ins. Co. v. State Board of Equalization of California, supra, at 668. Cf. Edgar v. MITE Corp., 457 U. S. 624, 646 (1982) (Powell, J., concurring in part) (noting State’s interest in protecting regionally based corporations from acquisition by foreign corporations).

Moreover, the Court has held in the dormant Commerce Clause context that a State may provide subsidies or rebates to domestic but not to foreign enterprises if it rationally believes that the former contribute to the State’s welfare in ways that the latter do not. Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976). Although the Court has divided on the circumstances in which the dormant Commerce Clause allows such measures, see id., at 817 (Brennan, J., dissenting), surely there can be no dispute that they are constitutionally permitted where Congress itself has affirmatively authorized the States to promote local business concerns free of Commerce Clause constraints. Neither the Commerce Clause nor the Equal Protection Clause bars Congress from enacting or authorizing the States to enact legislation to protect industry in one State “from disadvantageous competition” with less stringently regulated businesses in other States. Hodel v. Indiana, 452 U. S. 314, 329 (1981). See also Western & Southern, supra, at 669 (with congressional approval, States may promote domestic insurers by seeking to deter other States from enacting discriminatory or excessive taxes).

The majority’s attempts to distinguish these precedents are unconvincing. First the majority suggests that a state purpose might be legitimate for purposes of the Commerce Clause but somehow illegitimate for purposes of the Equal Protection Clause. No basis is advanced for this theory because no basis exists. The test of a legitimate state purpose must be whether it addresses valid state concerns. To suggest that the purpose’s legitimacy, chameleon-like, changes according to the constitutional clause cited in the complaint is merely another pretext to escape the clear message of this Court’s precedents.

Next the majority asserts that “a State may not constitutionally favor its own residents by taxing foreign corporations at a higher rate solely because of their residence,” citing cases that rejected discriminatory ad valorem property taxes, defended as taxes on the “privilege” of doing business. Ante, at 878-879. See, e. g., WHYY, Inc. v. Glassboro, 393 U. S. 117 (1968); Wheeling Steel Corp. v. Glander, 337 U. S. 662 (1949); Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 (1926); Southern R. Co. v. Greene, 216 U. S. 400 (1910). These decisions were addressed in Western & Southern, and the classifications were characterized as impermissibly discriminatory because they did not “‘rest on differences pertinent to the subject in respect of which the classification is made/” 451 U. S., at 668, quoting Power Manufacturing Co. v. Saunders, 274 U. S. 490, 494 (1927). As the majority concedes, none of these decisions intimates that the tax statutes at issue in the decisions rested on relevant differences between domestic and foreign corporations or had purposes other than the raising of revenue at the out-of-state corporations’ expense.

In fact, the Court noted in several of these opinions that foreign corporations may validly be taxed at a higher rate if the classification is based on some relevant distinction. No such distinction, however, had been demonstrated or even alleged. See WHYY, Inc. v. Glassboro, supra, at 120 (“This is not a case in which the exemption was withheld by reason of the foreign corporation’s failure or inability to benefit the State in the same measure as do domestic nonprofit corporations”); Wheeling Steel Corp. v. Glander, supra, at 672 (“[T]he inequality is not because of the slightest difference in Ohio’s relation to the decisive transaction”); Southern R. Co. v. Greene, supra, at 416-417 (parties conceded that the business of the foreign and domestic corporations was precisely the same). Lacking the threshold requirement of an articulated distinction relevant to an asserted purpose, the classifications at issue in these decisions could never have survived rational basis scrutiny and no such analysis was even attempted. These precedents do not answer the question posed by this case: whether a legislature may adopt differential tax treatment of domestic and foreign insurers not simply to raise additional revenue but with the purpose of affecting the market as an “instrument of economic and social engineering.” P. Hartman, Federal Limitations on State and Local Taxation §3:2 (1981). The majority’s suggestion that these cases necessarily decided the issue before us, as promotion of domestic business is “logically the primary reason for enacting discriminatory taxes such as those at issue [in the cited cases],” is mere speculation. See ante, at 879, n. 7.

In treating these cases as apposite authority, the majority again closes its eyes to the facts. Alabama does not tax at a higher rate solely on the basis of residence; it taxes insurers, domestic as well as foreign, who do not maintain a principal place of business or substantial assets in Alabama, based on conceded distinctions in the contributions of these insurers as a class to the State’s insurance objectives. The majority obscures the issue by observing that a given “foreign insurance company doing the same type and volume of business in Alabama as a domestic company” will pay a higher tax. Ante, at 871-872. Under our precedents, tax classifications need merely “res[t] upon some reasonable consideration of difference or policy.” Allied Stores of Ohio, Inc. v. Bowers, 358 U. S., at 527. Rational basis scrutiny does not require that the classification be mathematically precise or that every foreign insurer or every domestic company fit to perfection the general profile on which the classification is based. “[T]he Equal Protection Clause does not demand a surveyor’s precision” in fashioning classifications. Hughes v. Alexandria Scrap Corp., 426 U. S., at 814.

IV

Because Alabama’s classification bears a rational relationship to a legitimate purpose, our precedents demand that it be sustained. The Court avoids this clear directive by a remarkable evasive tactic. It simply declares that the ends of promoting a domestic insurance industry' and attracting investments to the State when accomplished through the means of discriminatory taxation are not legitimate state purposes. This bold assertion marks a drastic and unfortunate departure from established equal protection doctrine. By collapsing the two prongs of the rational basis test into one, the Court arrives at the ultimate issue — whether the means are constitutional — without ever engaging in the deferential inquiry we have adopted as a brake on judicial impeachment of legislative policy choices. In addition to unleashing an undisciplined form of Equal Protection Clause scrutiny, the Court’s approach today has serious implications for the authority of Congress under the Commerce Clause. Groping for some basis for this radical departure from equal protection analysis, the Court draws heavily on Justice Brennan’s concurring opinion in Allied Stores of Ohio, Inc. v. Bowers, supra, at 530, as support for its argument that “the Equal Protection Clause forbids a State to discriminate in favor of its own residents solely by burdening ‘the residents of other state members of our federation.’” Ante, at 878, quoting 358 U. S., at 533.

As noted in Western & Southern, Justice Brennan’s interpretation has not been adopted by the Court, “which has subsequently required no more than a rational basis for discrimination by States against out-of-state interests in the context of equal protection litigation.” 451 U. S., at 667, n. 21. More importantly, to the extent the Court today purports to find in the Equal Protection Clause an instrument of federalism, it entirely misses the point of Justice Brennan’s analysis. Justice Brennan reasoned that “[t]he Constitution furnishes the structure for the operation of the States with respect to the National Government and with respect to each other” and that “the Equal Protection Clause, among its other roles, operates to maintain this principle of federalism.” 358 U. S., at 532. Favoring local business as an end in itself might be “rational” but would be antithetical to federalism. Accepting arguendo this interpretation, we have shown that the measure at issue here does not benefit local business as an end in itself but serves important ulterior goals. Moreover, any federalism component of equal protection is fully vindicated where Congress has explicitly validated a parochial focus. Surely the Equal Protection Clause was not intended to supplant the Commerce Clause, foiling Congress’ decision under its commerce powers to “affirmatively permit [some measure of] parochial favoritism” when necessary to a healthy federation. White v. Massachussetts Council of Construction Employers, Inc., 460 U. S. 204, 213 (1983). Such a view of the Equal Protection Clause cannot be reconciled with the McCarran-Ferguson Act and our decisions in Western & Southern and Benjamin.

Western & Southern established that a State may validly tax out-of-state corporations at a higher rate if its goal is to promote the ability of its domestic businesses to compete in interstate markets. Nevertheless, the Court today concludes that the converse policy is forbidden, striking down legislation whose purpose is to encourage the intrastate activities of local business concerns by permitting them to compete effectively on their home turf. In essence, the Court declares: “We will excuse an unequal burden on foreign insurers if the State’s purpose is to foster its domestic insurers’ activities in other States, but the same unequal burden will be unconstitutional when employed to further a policy that places a higher social value on the domestic insurer’s home State than interstate activities.” This conclusion is not drawn from the Commerce Clause, the textual source of constitutional restrictions on state interference with interstate competition. Reliance on the Commerce Clause would, of course, be unavailing here in view of the McCarran-Ferguson Act. Instead the Court engrafts its own economic values on the Equal Protection Clause. Beyond guarding against arbitrary or irrational discrimination, as interpreted by the Court today this Clause now prohibits the effectuation of economic policies, even where sanctioned by Congress, that elevate local concerns over interstate competition. Ante, at 876-878. “But a constitution is not intended to embody a particular economic theory .... It is made for people of fundamentally differing views.” Lochner v. New York, 198 U. S. 45, 75-76 (1905) (Holmes, J., dissenting). In the heyday of economic due process, Justice Holmes warned:

“Courts should be careful not to extend [the express] prohibitions [of the Constitution] beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” Tyson & Brother v. Banton, 273 U. S. 418, 445-446 (1927) (Holmes, J., dissenting, joined by Brandéis, J.).

Ignoring the wisdom of this observation, the Court fashions its own brand of economic equal protection. In so doing, it supplants a legislative policy endorsed by both Congress and the individual States that explicitly sanctioned the very parochialism in regulation and taxation of insurance that the Court’s decision holds illegitimate. This newly unveiled power of the Equal Protection Clause would come as a surprise to the Congress that passed the McCarran-Ferguson Act and the Court that sustained the Act against constitutional attack. In the McCarran-Ferguson Act, Congress expressly sanctioned such economic parochialism in the context of state regulation and taxation of insurance.

The doctrine adopted by the majority threatens the freedom not only of the States but also of the Federal Government to formulate economic policy. The dangers in discerning in the Equal Protection Clause a prohibition against barriers to interstate business irrespective of the Commerce Clause should be self-evident. The Commerce Clause is a flexible tool of economic policy that Congress may use as it sees fit, letting it lie dormant or invoking it to limit as well as promote the free flow of commerce. Doctrines of equal protection are constitutional limits that constrain the acts of federal and state legislatures alike. See, e. g., Calif ano v. Webster, 430 U. S. 313 (1977); Cohen, Congressional Power to Validate Unconstitutional State Laws: A Forgotten Solution to an Old Enigma, 35 Stan. L. Rev. 387, 400-413 (1983). The Court’s analysis casts a shadow over numerous congressional enactments that adopted as federal policy “the type of parochial favoritism” the Court today finds unconstitutional. White v. Massachusetts Council of Construction Employers, Inc., supra, at 213. Contrary to the reasoning in Benjamin, the Court today indicates the Equal Protection Clause stands as an independent barrier if courts should determine that either Congress or a State has ventured the “wrong” direction down what has become, by judicial fiat, the one-way street of the Commerce Clause. Nothing in the Constitution or our past decisions supports forcing such an economic straitjacket on the federal system.

V

Today’s opinion charts an ominous course. I can only hope this unfortunate adventure away from the safety of our precedents will be an isolated episode. I had thought the Court had finally accepted that

“the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines; in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.” New Orleans v. Dukes, 427 U. S., at 303-304 (citations omitted).

Because I believe that the Alabama law at issue here serves legitimate state purposes through concededly rational means, and thus is neither invidious nor arbitrary, I would affirm the court below. I respectfully dissent.

       The origins of Alabama’s domestic preference tax statute date back to 1849, when the first tax on premiums earned by insurance companies doing business in the State was limited to companies not chartered by the State. Act No. 1, 1849 Ala. Acts 5. A domestic preference tax was imposed on and off throughout the years until 1945, when the State restored equality •in taxation of insurance companies in response to this Court’s decision in United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944). Act No. 156, 1945 Ala. Acts 196-197. In 1955, the tax was reinstated, Act No. 77, 1955 Ala. Acts 193 (2d Spec. Sess.), and with minor amendments, has remained in effect until the present.

       For domestic preference tax purposes, Alabama defines a domestic insurer as a company that both is incorporated in Alabama and has its principal office and chief place of business within the State. Ala. Code § 27-4-1(3) (1975). A corporation that does not meet both of these criteria is characterized as a foreign insurer. § 27-4-1(2).

       There are two exceptions to these general rules concerning the rates of taxation of insurance companies. For annuities, the tax rate is one percent for both foreign and domestic insurers, Ala. Code §27-4-4(a) (1975), and for wet marine and transportation insurance, the rate is three-quarters of one percent for both foreign and domestic insurance companies, § 27-4-6(a).

       Metropolitan Life Insurance Co., a New York corporation, was chosen to represent the life insurance claimants, and Prudential Property and Casualty Co., a New Jersey corporation, was chosen as representative of the nonlife claimants. See App. 314-315.

       The State and the intervenors advanced some 15 additional purposes in support of the Alabama statute. As neither the Circuit Court nor the Court of Civil Appeals ruled on the legitimacy of those purposes, that question is not before us, and we express no view as to it. On remand, the State will be free to advance again its arguments relating to the legitimacy of those purposes.
      As the dissent finds our failure to resolve whether Alabama may continue to collect its tax “baffling,” post, at 887, we reemphasize the procedural posture of the case: it arose on a motion for summary judgment. The Court of Civil Appeals upheld the Circuit Court’s ruling that the two purposes identified by it were legitimate, but the appellate court remanded on the issue of rational relationship as to those purposes because it found the evidence in conflict. In order to obtain an expedited ruling, appellants waived their right to an evidentiary hearing only as to the purposes “which the lower courts have determined to be legitimate.” 447 So. 2d 142, 143 (Ala. 1983). Thus, for this Court to resolve whether Alabama may continue to collect the tax, it would have to decide de novo whether any of the other purposes was legitimate, and also whether the statute’s classification bore a rational relationship to any of these purposes — all this, on a record that the Court of Civil Appeals deemed inadequate.

       We find the other cases on which the State relies also to be inapposite, to this inquiry. Bacchus Imports, Pike, and Parker discussed whether promotion of local industry is a valid state purpose under the Commerce Clause. The Commerce Clause, unlike the Equal Protection Clause, is integrally concerned with whether a state purpose implicates local or national interests. The Equal Protection Clause, in contrast, is concerned with whether a state purpose is impermissibly discriminatory; whether the discrimination involves local or other interests is not central to the inquiry to be made. Thus, the fact that promotion of local industry is a legitimate state interest in the Commerce Clause context says nothing about its validity under equal protection analysis.' See infra, at 880-881.
      Moreover, neither Bacchus nor Pike ruled that a State’s ability to promote domestic industry was unlimited, even under the Commerce Clause. Thus, in Bacchus, although we observed as a general matter that “a State may enact laws pursuant to its police powers that have the purpose and effect of encouraging domestic industry,” 468 U. S., at 271, we held that in so doing, a State may not constitutionally impose a discriminatory burden upon the business of other States, merely to protect and promote local business, id., at 272-273. Accord, Armco Inc. v. Hardesty, 467 U. S. 638, 642 (1984). Likewise, in Pike, the Court held that the state statute promoting a legitimate local interest must “regulat[e] evenhandedly.” 397 U. S., at 142.
      Other cases cited by the State are simply irrelevant to the legitimacy of promoting local business at all. Carmichael relates primarily to the validity of a state unemployment compensation scheme, and Board of Education deals with the State’s ability to regulate matters relating to probate. Bowers is the only one of the State’s cases that involves the validity under the Equal Protection Clause of a tax that discriminates on the basis of residence of domestic versus foreign corporations. That case does little, however, to support the State’s contention that promotion of domestic business is a legitimate state purpose. It was concerned with encouraging nonresidents — who are not competitors of residents — to build warehouses within the State. See infra, at 879-880.

       Although the promotion of domestic business was not a purpose advanced by the States in support of their taxes in these cases, such promotion is logically the primary reason for enacting discriminatory taxes such as those at issue there.

       In fact, as we noted in Western & Southern, the legislative history of the McCarran-Ferguson Act reveals that the Act was Congress’ response only to United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944), and that Congress did not intend thereby to give the States any power to tax or regulate the insurance industry other than what they had previously possessed. Thus Congress expressly left undisturbed this Court’s decisions holding that the Equal Protection Clause places limits on a State’s ability to tax out-of-state corporations. See 451 U. S., at 655, n. 6.

       It is well established that a corporation is a “person” within the meaning of the Fourteenth Amendment. E. g., Western & Southern, 451 U. S., at 660, n. 12.

       Indeed, under the State’s analysis, any discrimination subject to the rational relation level of scrutiny could be justified simply on the ground that it favored one group at the expense of another. This case does not involve or question, as the dissent suggests, post, at 900-901, the broad authority of a State to promote and regulate its own economy. We hold only that such regulation may not be accomplished by imposing dis-criminatorily higher taxes on nonresident corporations solely because they are nonresidents.

       “Industrial insurance” is the trade term for a low face-value policy typically sold door-to-door and maintained through home collection of monthly or weekly premiums. Alabama currently has more industrial insurance in force than any other State. Burial insurance is another form of insurance popular in rural Alabama that is offered exclusively by local insurers. By contrast, Metropolitan Life, like many multistate insurers, has discontinued writing even whole-life policies with face values below $15,000. App. 173-176.

       The only cited authority that arguably addressed the issue raised in the instant case is a per curiam reversal and remand without opinion of a decision upholding a discriminatory ad valorem tax on a foreign insurer’s fixtures and other tangible property. See Reserve Life Ins. Co. v. Bowers, 380 U. S. 258 (1965). A reversal and remand is more enigmatic even than a summary affirmance, which has precedential value only as to “the precise issues necessarily presented and necessarily decided.” Mandel v. Bradley, 432 U. S. 173, 176 (1977). Decisions without opinion may not be equated with “an opinion by this Court treating the question on the merits.” See Edelman v. Jordan, 415 U. S. 651, 670-671 (1974). “Indeed, upon fuller consideration of an issue under plenary review, the Court has not hesitated to discard a rule which a line of summary affirmances may appear to have established.” Fusari v. Steinberg, 419 U. S. 379, 392 (1975) (Burger, C. J., concurring).


author: Per Curiam.

text:
    BOARD OF EDUCATION OF OKLAHOMA CITY v. NATIONAL GAY TASK FORCE
    No. 83-2030.
    Argued January 14, 1985
    Decided March 26, 1985

      Dennis W. Arrow argued the cause for appellant. With him on the briefs were Larry Lewis and James B. Croy.

      Laurence H. Tribe argued the cause for appellee. With him on the brief were William B. Rogers and Leonard Graff

      Briefs of amici curiae urging reversal were filed for Concerned Women for America Education and Legal Defense Foundation by Jordan W. Lorence; for the State of Oklahoma by Michael C. Turpén, Attorney General, and David W. Lee, Assistant Attorney General; for the National School Boards Association by Gwendolyn H. Gregory, August W. Stein-hilber, and Thomas A. Shannon; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and George C. Smith.

      Briefs of amici curiae urging affirmance were filed for the American Association for Personal Privacy et al. by Thomas F. Coleman and Jay M. Kohom; for the American Association of University Professors by Ann H. Franke, Ralph S. Brown, and Matthew Finkin; for the Center for Constitutional Rights et al. by Anne E. Simon, Sarah Wunsch, and Rhonda Copelon; for the Lambda Legal Defense and Education Fund, Inc., et al. by Abby R. Rubenfeld and Rosalyn Richter; for the National Education Association et al. by Robert Chanin and Robert M. Weinberg; and for the State of New York et al. by Robert Abrams, Attorney General of New York, Robert Hermann, Solicitor General, Lawrence S. Kahn, Assistant Attorney General, and John K. Van de Kamp, Attorney General of California.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

Justice Powell took no part in the decision of this case.


text:
    FUGATE v. NEW MEXICO
    No. 83-6663.
    Argued February 19, 1985
    Decided March 26, 1985

      J. Thomas Sullivan argued the cause for petitioner. With him on the briefs was Henry R. Quintero.

      Paul Bardacke, Attorney General of New Mexico, argued the cause for respondent. With him on the briefs was Anthony Tupler, Assistant Attorney General.
   Per Curiam.

The judgment is affirmed by an equally divided Court.

Justice Powell took no part in the decision of this case.


text:
    February 23, 1985
    No. A-641.
    Mattheson v. Phelps, Secretary, Louisiana Department of Public Safety and Corrections.
   Application for stay of execution of sentence of death scheduled for Monday, February 25, 1985, presented to Justice White, and by him referred to the Court, is granted pending the timely filing and disposition by this Court of a petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court. Justice White and Justice Rehnquist would deny the application. Justice Powell took no part in the consideration or decision of this application.


text:
    February 25, 1985

    No. 84-1079.
    Bethune Plaza, Inc. v. Bernardi, Director of Labor of Illinois.

      Justice Powell took no part in the consideration or decision of the orders announced on this date.

   Appeal from App. Ct. Ill., 1st Dist., dismissed for want of substantial federal question.


text:
    No. 84-1092.
    Zimmerman v. Abrams, Attorney General of New York, et al.
   Appeal from App. Div., Sup. Ct. N. Y., 4th Jud. Dept., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.


text:
    No. 84-5912.
    Calloway v. Alabama.
   Appeal from Sup. Ct. Ala. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-5396.
    Jennings v. Florida.
   Sup. Ct. Fla. Motion of petitioner for leave to proceed informa pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Shea v. Louisiana, ante, p. 51, and Smith v. Illinois, 469 U. S. 91 (1984). Justice Rehnquist dissents.


text:
    No. A-608.
    Carella et al. v. Municipal Court of Los Angeles et al.
   C. A. 9th Cir. Application for stay, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. A-632 (84-1282).
    In re Murgo.
   D. C. M. D. Fla. Application for stay, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. D-459.
    In re Disbarment of Stachurski.
   Disbarment entered. [For earlier order herein, see 469 U. S. 915.]


text:
    No. D-464.
    In re Disbarment of McDaniel.
   Disbarment entered. [For earlier order herein, see 469 U. S. 1069.]


text:
    No. D-465.
    In re Disbarment of Pelle.
   Disbarment entered. [For earlier order herein, see 469 U. S. 1069.]


text:
    No. 83-1961.
    Landreth Timber Co. v. Landreth et al.
   C. A. 9th Cir. [Certiorari granted, 469 U. S. 1016.] Motion of Advance Ross Corp. for leave to file a brief as amicus curiae granted.


text:
    No. 84-4.
    Williamson County Regional Planning Commission et al. v. Hamilton Bank of Johnson City.
   C. A. 6th Cir. [Certiorari granted, 469 U. S. 815.] Motion of petitioners for leave to file reply brief out of time granted.


text:
    No. 84-468.
    City of Cleburne, Texas, et al. v. Cleburne Living Center, Inc., et al.
   C. A. 5th Cir. [Certiorari granted, 469 U. S. 1016.] Motions of Association for Retarded Citizens of the United States et al. and National Association for Rights Protection and Advocacy et al. for leave to file briefs as amici curiae granted.


text:
    No. 84-861.
    National Labor Relations Board v. International Longshoremen’s Assn., AFL-CIO, et al.
   C. A. 4th Cir. [Certiorari granted, 469 U. S. 1188.] Motion of respondents New York Shipping Association, Inc., et al. for divided argument granted. Motion of the Solicitor General for divided argument granted.


text:
    No. 84-978.
    Exxon Corp. et al. v. Hunt, Administrator of New Jersey Spill Compensation Fund, et al.
   Appeal from Sup. Ct. N. J. The Solicitor General is invited to file a brief in this case expressing the views of the United States. •


text:
    No. 84-5636.
    Alcorn v. Smith, Warden.
   C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.

Certiorari Denied.


text:
    No. 83-1747.
    Tate, Superintendent, Chillicothe Correctional Institute v. Rose.
    (See also Nos. 84-1092 and 84-5912, supra.)

   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-2052.
    Tel-Oren, as Father, on Behalf of the Deceased, Tel-Oren, et al. v. Libyan Arab Republic et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-177.
    Illinois v. Hammock.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-256.
    No. 84-292.
    No. 84-585.
    Williams v. United States; O’Malley et al. v. United States; and Lombardo v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-587.
    D’Antignac v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-590.
    Red Star Marine Services, Inc. v. Donovan, Secretary of Labor.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-685.
    Rush et al. v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-834.
    Barth et al. v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-877.
    Hildmann v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-890.
    Brown v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-904.
    McQuiston v. United States.
   C. A. Fed. Cir. Certiorari denied.