*1 ASSOCIATION, INC., HAULERS UNITED et al. WASTE ONEIDA-HERKIMER SOLID MANAGE MENT AUTHORITY et al. 2007 Decided January April

No. Argued 05-1345. *3 J.,C. Roberts, Court, opinion except delivered the as to Part JJ., II-D. Souter, Ginsburg, joined Breyer, opinion and in full. Scalia, J., filed an opinion concurring as to Parts I II-A through II-C, and post, p. J., Thomas, an opinion filed 348. concurring the judgment, Auto, J., post, p. 349. filed a dissenting opinion, in which Stevens Kennedy, JJ., joined, post, p. 356. Tager Evan M. the cause for argued petitioners. With him on the briefs was Miriam R. Nemetz.

Michael J. Cahill the cause for argued respondents. With Judy Rayhill, Drabicki, Peter M. him on the brief were Rogow, Frye, Bruce Kelly. S. A. Richard and Thomas E. argued Halligan, York, J. General of New Caitlin Solicitor of York cause New et al. amici curiae State urging on the brief Eliot affirmance. With her were Attorney Deputy Spitzer, General, Smirlock, former Daniel Benjamin General, Gutman, N. Assistant Solicitor Solicitor Sipos, Attorney General, General, John Karen J. Assistant Attorney King Deputy Mitchell, of Missouri, and the General Attorneys Attorneys General and former General for their respective Arkansas, States as follows: Mike Beebe of Bill Lockyer California, Connecticut, of Richard Blumenthal of Danberg Delaware, Carl C. of Mark Hawaii, J. Bennett of Madigan Gregory of Illinois, Lisa Tom of Iowa, Miller D. Kentucky, Joseph of Stumbo G. Steven Rowe of Maine, J. Maryland, Michigan, Curran, Jr., of A. Michael Cox Mike of Mississippi, Hatch of Minnesota, Jim Hood of Mike McGrath George Kelly Ayotte Montana, of Nevada, J. Chanos of A. Hampshire, Jersey, Wayne of New Stuart Rabner New Stenehjem Myers Hardy Oregon, of North Dakota, Pat Lynch Cooper, rick of Rhode Island, Jr., Robert E. of Tennes see, Vermont, William H. Sorrell Robert F. McDonnell of Virginia, Virginia.* McGraw, Jr., Darrell V. of West curiae urging amici *Briefs reversal were filed for Sussex County, Franklin; Jonathan S. Virginia, et al. and for the National Solid Biderman, Dig- Robert Management Association David Wastes et al. Amundson, Quentin ges, Riegel. Jan amici curiae Briefs affirmance were Madison urging County, filed for Morris; by Jeffrey B. York, New of Regional for the Arkansas Association *4 DuBoff, M. Scott Michael by Solid Waste et al. Management Districts Gillin, Nadzo, Weiss, Jr., Heck, Jr., F. X. Nicholas Samuel G. Mathias H. Stephen Rainwater, III, Acquario, J. Pope Michael Moran M. Charles H. Jenkins; Younger, Larry Development and for the Economic Growth Amoroso; by Gregory Enterprises Corp. J. et al. for Environmental De- Bean; fense Michael J. by for the Federation New York Solid Waste Diederich, Jr.; D. Michael by Associations for the National Association of Seamon; Richard Ruda Richard H. by et al. Counties and for the Onon- Braun, Bruce R. County Resource Gene daga Recovery et al. Agency Schaerr, Johnson, Eaton; C. N. Geoffrey P. and for the Rockland Steffen Diederich; Freedom et al. Mr. Democracy Coalition for and and for the opinion delivered the Chief Justice Roberts except Court, Part II-D. require trash

“Flow control” ordinances haulers deliver particular processing facility. solid waste to waste In (1994), Carbone, Clarkstown, C A Inc. v. & this under the Clause a struck down Commerce flow con- par- trol ordinance that forced haulers deliver waste to a private processing facility. case, ticular this we face flow quite control ordinances similar one invalidated in only Carbone. The salient difference is that the laws at bring require issue here haulers to waste to facilities owned operated by public corporation. and benefit state-created constitutionally significant. Dispos- findWe this difference ing government activity been a trash has traditional for years, government and laws favor such areas— every but business, treat whether in-state or out- exactly against of-state, same—do not discriminate in- purposes terstate commerce the Commerce Clause. Applying regulations the Commerce Clause test reserved for up- commerce, that do not we discriminate they hold these ordinances because incidental burden may outweigh have on interstate does not commerce the ben- they efits confer citizens Oneida and Herkimer Counties.

I Located in central New York, Oneida Herkimer Coun- span square ties over 2,600 miles are home to about Traditionally, city, village 306,000 residents. each town, or within responsible disposing the Counties has been of its Many own waste. had local landfills, relied on some in a environmentally responsible more fashion than others. By they 1980’s, the Counties confronted what could credibly Respond- call a solid waste Brief for “‘crisis.’” County Rockland Bergen, Robert Authority by Solid Waste Management West, Bridget Teño Gwmtlett. *5 permits Many operating were without

ents 4. local landfills regulations. in violation of Sixteen were ordered state and surrounding costing environment, and to close remediate public These environmental of millions dollars. tens cleanup problems a culminated in a federal action County; named in Oneida in that case landfill defendants municipalities and businesses and several over third-party school defendants. districts beyond safety The extended health and concerns. “crisis” uneasy relationship waste had an with local The Counties fixing, pervasive companies, enduring price management organized overcharging, the influence of crime. Dra- and example, price hikes In for matic were not uncommon: county disposal on six a waste rate contractor doubled its notice. weeks’ problems, requested

Responding the Counties and to these Qneida- Legislature York’s and created the New Governor (Authority), Management Authority Solid Waste Herkimer public corporation. Y. Auth. benefit See N. Pub. Law Ann. (West 1995). §2049-aa Authority empowered seq. et process, dispose generated of solid collect, and waste 2049-ee(4). § Authority’s To the Counties. further impose public purposes, may governmental the Counties and competition” “appropriate and limitations reasonable requiring by, adopting instance, that all “local laws specified waste waste to a solid solid ... delivered §2049-tt(3). facility.” management-resource recovery Authority into entered and the Counties Management Agreement, which the Au- under Solid Waste thority agreed manage all waste within the solid Counties. pick up citizens’ trash Private haulers would remain free job Authority would take over the curb, from the but the sorting sending processing it off dis- it, trash, Authority agreed posal. part bargain, its To fulfill processing develop purchase for the facilities *6 and of solid waste recyclables generated the disposal in Counties. to collected fees” cover Authority “tipping its operat- for and maintenance costs these facilities.1 The

ing tipping fees for exceeded those waste removal significantly charged market, but allowed the the do they to open Authority the more than waste disposer. In average private addition to and solid landfill waste the fees transportation disposal, the of enabled to of Authority provide kinds recycling materials, as well as household waste composting, hazardous and If a number of other the services. disposal, Authority’s costs service and debt were not recouped operating through fees and other the that charges, agreement tipping provided the Counties would make the difference. up described,

As had a flaw: Citizens agreement opt might to their to have waste hauled facilities with lower tipping To avoid stuck with for fees. the bill facilities being use, voted but citizens for then chose not Counties enacted “flow control” ordinances that all solid requiring waste within the Counties be delivered to the Au- generated Private must a sites.2 haulers obtain thority’s processing fees 1 Tipping disposal charges drop are against levied collectors who facility. They off waste at a processing “tipping” are called fees because garbage literally trucks back out tip their end to the carried dump waste. 1995, of pay As haulers in the tipping $86 Counties had fees of at least ton, per price per a as much as ton if particular $172 ballooned a load contained recyclables. more than 25% 2Oneida’sflow control provides part: ordinance “From of placement recyclables the time solid waste at the road- side or designated by County by Authority other or approved area pursuant to County, contract with the or for by person collection herewith, accordance such shall recyclables solid waste and be delivered to the appropriate facility, entity person or responsible disposition des- ignated by County Authority or by pursuant contract with the Authority.” App. to Pet. for Cert. 122a. portion

The relevant flow control ordinance Herkimer’s is substan- tially similar: placement recyclable

“After garbage and materials at the roadside other designated by area approved Legislature person for collec- from the to collect waste in the permit Authority Counties. with the Penalties ordinances include per- noncompliance revocation, mit fines, and imprisonment. Association, Inc.,

Petitioners United Haulers a trade made association waste up of solid management companies, haulers that six Oneida and operated Herkimer Coun- ties this action sued when was filed. they Coun- § ties under U. S. C. Authority alleging the flow control violate the Commerce laws Clause dis- commerce. submitted criminating They evidence that without the flow control laws and the associ- fees, ated could of solid $86-per-ton dispose tipping they *7 waste at out-of-state facilities between per $37 and $55 ton, including transportation. Carbone, District decision in S.

The Court read our 511 U. flow laws. 383, as all control categorically rejecting nearly favor, ruled the haulers’ enforcement court enjoining reason- reversed, the Counties’ laws. The Second Circuit that Carbone and our other dormant Commerce Clause ing allow a distinction between laws that benefit precedents 245, F. 263 261 3d facilities. public opposed private (2001). not it held that statute does discrimi- Accordingly, it favors nate commerce when local gov- interstate against at the The court industry. ernment of all expense let the whether the Coun- remanded to District decide on an incidental burden ties’ ordinances nevertheless placed so, if whether the ordinances’ bene- commerce, interstate and that

fits burden. outweighed a Magistrate protracted discovery, On remand after did found that haulers the District Court Judge and burden the ordinances imposed cognizable show that assum- affirmed, The Second Circuit interstate commerce. commerce, toll on interstate some laws exacted ing compared “modest” burden any possible but finding material shall recyclable herewith, garbage such tion in accordance Legislature, designated facility appropriate to the delivered Id., County.” with 135a. Authority pursuant contract “clear and substantial” benefits of the ordinances. 3d 438 F. (2006). 150, Because the Sixth had Circuit is- recently sued a decision a flow conflicting holding control ordi- does nance favoring public entity facially discriminate see National Solid Wastes against commerce, interstate Management Cty., Assn. v. Daviess 434 F. 3d 898 (2006), we (2006). certiorari, 548 U. S. 941 granted II A The Commerce Clause shall provides have “Congress Power ... Commerce with regulate Nations, [t]o foreign the several States.” among Const., Art. I, §8, cl. 3. the Constitution does not in Although terms limit the power of States to commerce, we have regulate long interpreted the Commerce as an Clause restraint on implicit state au even in the thority, absence of a federal conflicting statute. Freight Tax, Case State See Wall. (1873); Cooley Philadelphia v. Board Wardens Port ex rel. Distressed Pilots, (1852). How. Soc. for Relief of To determine whether a law violates this so-called “dor mant” aspect Clause, Commerce we first ask whether it discriminates on its face commerce. Trucking American Michigan Assns., Inc. Pub. Serv. *8 Comm’n, 545 U. Sanitary Fort Gratiot 433 429, (2005); S. Michigan Dept. Inc. Landfill, Resources, Natural v. 504 of “ (1992). 353, U. S. 359 In this context, ‘discrimination’ sim means ply differential treatment of in-state out-of-state economic interests that benefits the former and burdens the Oregon Systems, Department Waste Inc. latter.” En of Quality vironmental Ore., New 93, 511 U. (1994); 99 of Energy Co. Limbach, Ind. 269, (1988). laws Discriminatory motivated by economic “simple protec per tionism” se rule to a subject “virtually invalidity,” Philadelphia Jersey, v. New 617, (1978), U. S. which can only overcome aby that the has no State showing legitimate purpose, local Maine v. a other means advance (1986). Taylor, 477

B County, Following in Daviess the lead of the Sixth Circuit argue vigorously ordinances Counties’ the haulers against commerce under Carbone. discriminate pri- York, hired a Carbone, Clarkstown, New the town of According waste transfer station. contractor to build a vate operate would deal, terms of the the contractor tipping years, charging facility fee an above-market five years, buy per town would the facil- ton; five after $81 facility guaranteed ity that the one dollar. The town per year. To make a volume of trash would receive certain promise, passed good a flow control ordi- on its Clarkstown requiring all solid within the nonhazardous waste nance facility. deposited at the See 511 U. town be transfer at 387. holding that it dis- ordinance,

This struck down the “hoarding] solid interstate commerce criminated get it, rid for the benefit of waste, and demand to facility.” preferred processing The Id., at 392. dissent processing pointed cases in- out all of this local Court’s private entities, in favor of laws that discriminated volved (opinion public Accord- Id., J.). ones. SOUTER, ostensibly private transfer ing dissent, to the Clarkstown’s facility,” “essentially municipal id., at was station ordinance should have saved Clarkstown’s this distinction favoring government nature different its because majority private company. favoring particular The public-private distinction. comment on dissent’s did not opposite parties inferences from draw this case major- say proves that the majority’s haulers it silence. The facility, ity agreed with the dissent’s characterization dormant Com- thought no difference under but there was favoring private entities between laws merce Clause *9 340 The

those ones. Counties public disagree, favoring arguing avoided the issue majority studiously because was therefore the facility Carbone private, question be was not whether facilities favored may public properly before the Court.3 of

We believe the latter Carbone is correct. interpretation “in As the Circuit Carbone the Second explained, Justices were divided over the whether favored facility of fact was than on the of rather public import that dis- private, 3d, tinction.” 261 F. at 259 The (emphasis original). Carbone dissent offered a number of reasons why enti- public ties should be treated ones differently under S., dormant Clause. 511 Commerce See U. at 419-422 J.). It is hard that the (opinion Car- suppose Souter, bone these majority definitively with- rejected arguments out why. explaining

The Carbone viewed Clarkstown’s control flow majority one ordinance more instance local re- “just processing Id., that we held quirements have invalid.” at 391. It long then six cases, cited local which in- one of processing every volved discrimination favor The private enterprise.4

3 side majority’s descriptions Each makes much of the Carbone various of the facility. point haulers out that the Court twice referred to the and financing construction station as the project. transfer town’s (“its (“its S., at facility”), See 511 U. for Peti project”); new Brief 387 majority tioners 20-22. The Counties note that the referred the trans Carbone, fer station as a “town-sponsored facility,” 511 U. at 393, id,., operator,” local “favored “the preferred processing facility,” at 389, id., proprietor,” business,” “single and a “local never as a but public facility. Brief n. has Respondents 7. The dissent mined decision, the Carbone appendix, and briefs for further instances of alleg edly supportive terminology, post, but (opinion at 359-360 Auto, J.), we continue find this duel labels best inconclusive. Wunnicke, See Development, South-Central 467 Timber Inc. (invalidating regulation Alaska all Alaskan (1984) requiring timber to Church, Inc., processed prior export); in-state Bruce Pike v. U. S. an (invalidating application of Arizona to require statute Arizona-grown cantaloupes packaged to be within the State before ex- *10 own of the cases acknowledges description Court’s meat, laws a local resource —be it local hoard “offending of local businesses milk —for that treat the benefit shrimp, Id., added). were it.” at 392 If the ex- Court (emphasis this line of to cover discrimi- local cases processing tending it nation in one would favor local government, expect United, Burr, States v. 25 F. Cas. 165 have said so. Cf. J.) (“[A]n (No. (CC 1807) 14,693) (Marshall, opinion Va. C. recognized, which is to ... establish a never before principle terms”). should be in plain expressed explicit only The Carbone conceivable majority stated “[t]he distinction” between the laws in the local cases processing and Clarkstown’s flow control ordinance was Clarks- business, town’s ordinance a local rather than single favored added). If the of them. 511 U. 392 group (emphasis Clarkstown’s was thought public, processing facility merely that additional distinction was not “conceivable” —it was in conceived, and discussed at three Justices length, by dissent. Carbone cannot be having decided regarded public-private question.5 (1948) Witsell, (invalidating South Carolina Toomer v. 334 U. S. 385

port); stamp unload, their requiring pack, fishermen to catch shrimp statute State); Packing v. Co. shipping it another Foster-Fountain before (1928) prohibiting (invalidating statute Haydel, 278 U. S. 1 a Louisiana within export and hulls first been removed shrimp unless heads had (1928) State); (invalidating Haydel, analogous Johnson v. Barber, (1890) U. S. 313 oysters); Louisiana statute Minnesota sold State to (invalidating requiring any law meat within the Minnesota Madison, inspector). Milk Co. be examined an in-state Dean requiring milk sold (invalidating ordinance all S. 349 center) city else- miles city to within five pasteurized —discussed here, readily post, at 367-368 —is in the dissent where Carbone ground. distinguishable on the same “long recognized that Com ago the Court The dissent asserts that in favor of discriminates violated a law that merce Clause can be authority cites —Scott v. Post, it The monopoly.” 361. state-owned Co., 170 S.U. Donald, (1897), A Vandercook and Vance v. W. 165 U. 58S. sup “long ago,” but does qualifies (1898) certainly as from — c flow control this case benefit ordinances a clearly all while facility, companies public treating private exactly Because the is now same. question squarely presented facts of the case before us, on the we decide that such flow do control ordinances not discriminate of the dormant commerce Commerce Clause. purposes reasons these laws Compelling justify treating differently from laws businesses over their favoring particular of course, notion competitors. of dis “Conceptually, *11 crimination assumes of comparison substantially similar General Motors Corp. v. 519 Tracy, entities.” U. S. 278, 298 (1997) (footnote omitted). But States and are municipalities private businesses —far it. Unlike enter private is vested with the prise, government responsibility pro health, welfare its citizens. tecting safety, See Ins. Massachusetts, Co. Metropolitan 471 724, U. S. Life (“The (1985) 756 States have had latitude traditionally great under their to to police powers legislate protection port proposition. struck Scott down two laws that discriminated in favor of businesses; in-state and against businesses out-of-state neither law government expense favored local private industry. at the of all See S., 165 U. Heald, at U. Granholm v. 92-93,101; 544 478-479 (describing Scott holding). simply Scott is another case like those cited in footnote 4. actually

Vance upheld, monopoly “South Carolina’s over liquor distribu- tion!;,]... rejecting] that this argument monopoly system was uncon- Granholm, stitutionally discriminatory.” at supra, dis- (Thomas, J., 507 senting) Vance, (citing supra, 450-452). It was at in Vance dissent argued monopoly system “such a state constituted unconstitu- Granholm, tional supra, discrimination.” dissenting) J., (Thomas, 507 S., (citing Shiras, U. (opinion J.)). Vance sim- 462-468 ply struck down a regulation shipments on direct consumers per- use, sonal under excruciatingly pre-Prohibition the Court’s prece- arcane id., dents. See at 455. Most Vance harkens to a tellingly, bygone back era; until today, only the dissent dted it had this Court been two cases in past years. comfort, of all lives, limbs, health, quiet persons” omitted)). These re-

(internal important marks quotation from a set state and local government apart sponsibilities at 313 business. Cf. Tracy, supra, typical (Scalia, in this Commerce J., Court’s negative concurring) (“Nothing the conclusion “that private Clause jurisprudence” compels in the sale of natural marketers gas similarly engaged situated public utility companies”). differences, these it does not make sense regard

Given and laws laws local favoring favoring private government with As our local industry equal skepticism. processing demonstrate, when a law favors over in-state business cases be- out-of-state competition, scrutiny appropriate rigorous law cause the is often economic product “simple pro- Oklahoma, Wyoming tectionism.” v. New

(1992); at 626-627. Philadelphia Jersey, contrast, Laws be di- favoring government, by may toward unrelated rected number of legitimate goals Here the ordinances enable the flow control protectionism. to the Counties to with policies respect pursue particular in the Counties, treatment of waste generated handling *12 the costs of those on and while citizens allocating policies to volume of waste businesses the they generate. according The of and enti- treating public private contrary approach under the dormant Commerce Clause would ties the same and the lead to unbounded interference by unprecedented The dormant with state and local Com- courts government. federal courts to merce Clause is not license for roving and local decide what activities are for state gov- appropriate the undertake, ernment and what activities must be prov- case, of In this the citizens ince market private competition. have chosen the of Oneida Herkimer Counties govern- services, with a limited ment waste provide management of in waste role for the sector transport private arranging The citizens could the facilities. curb to the public 344

have sector, left the entire matter for the private which case could not they undertook regulation discriminate commerce. But it was also open them the matter with their vest responsibility government, and to flow control ordinances to adopt support govern ment It office effort. is not the of Commerce Clause to control the decision of the voters whether or government waste provide management sector should serv ices. “The Commerce Clause limits significantly ability of and localities to otherwise States burden the regulate flow but it does not elevate commerce, of interstate free Taylor, Maine trade all other values.” 477 above Cory. Maryland, at 151. See Exxon v. Governor (1978) (Commerce 117, 127 Clause does not “the protect market). or methods of of a particular structure operation” We should hesitant to interfere with be particularly efforts under Counties’ Commerce Clause guise because is both disposal typically traditionally “[w]aste (case below) 3d, local function.” F. government Recycling, Baby Inc. USA (Calabresi, J., see concurring); lon, 1995) (“For (CA2 1272, 1275 F. 3d it has ninety years, law been settled collection and is a garbage disposal function States”); core of local in the United government Reform, Melosi, Refuse, M. and the Garbage Cities: (1981). it Environment, 1880-1980, 153-155 pp. Congress self has vital role waste recognized government’s clear that “collection and management, disposal making wastes the function of solid should continue to primarily State, and local Resource Conservation regional, agencies.” Act U. C. Recovery Stat. 6901(a)(4). York § State of New favors policy with or monopoly public “displacing] competition regulation §2049- control” Ann. in this Y. Pub. Law area. N. Auth. *13 tt(3). but We not with that may approach, may agree vests the the Clause Commerce nothing responsibility Federal with the that policy judgment Judiciary.6 harm it bears most Finally, palpable mentioning trash removal— the ordinances —more by expensive imposed to fall who voted for laws. is likely upon very people dormant often find discrimina- Our Commerce Clause cases to other when a shifts the costs regulation tion State “the falls States, when burden of state regulation because it is to be state, on interests outside the alleviated unlikely restraints ex- of those normally by operation political South- within state are affected.” erted when interests Sullivan, rel. v. Arizona ex ern Co. 325 U. S. Pacific (1945). Here, 767-768, n. 2 the citizens businesses rea- of the ordinances. There is no Counties bear costs in and a could son hand local businesses step victory they not obtain through political process. which ordinances, flow

We hold that the Counties’ control the same as treat in-state business interests exactly private ones, out-of-state do not “discriminate interstate against commerce” for the dormant Commerce Clause.7 purposes might thus wrong stating approach is our Justice Thomas government monopoly priva “a over policy-driven preference suggest Post, That concurring in is instead (opinion judgment). at 354 tization.” recog locality simply preference opinion affected here. Our entity a all entities favoring public treating nizes that law a law commerce as the same does discriminate does local business over all favoring others. The Counties and their amicus argument were at oral if affirm asked “Qneida-Herkimer Stand,” Hamburger accompa ance would lead to the purchase burgers their requiring control” law citizens nied “flow (Counties), Arg. Tr. Oral 33-34 only producer. the state-owned (amicus York). 45-46, 49-50 doubt it. “The existence State of New We powerful is a safe adversely [a law] major in-state interests affected Creamery v. Clover Minnesota abuse.” guard against legislative Leaf (1981). Co., 456, 473, government that local Recognizing n. 17 function such may customary government facilitate a traditional Clause, hardly running afoul of the Commerce disposal, waste without *14 346

D The Counties’ flow control ordinances are ana properly Pike Bruce Inc., under the test set forth in Church, lyzed 397 137, 142 (1970), which is for reserved laws “directed concerns, with legitimate effects upon interstate Philadelphia v. New commerce incidental.” only Jersey, 624. Under the Pike test, we will up S.,U. hold a statute like this one nondiscriminatory “unless burden on commerce is imposed [interstate] clearly excessive in relation to the local benefits.” putative S.,U. 142; Pipeline Corp. Corporation Northwest Central v. State Kan., Comm’n (1989). 525-526 After years both the discovery, Magistrate Judge any the District Court could not detect disparate impact out-of-state as to in-state opposed businesses. The Second Circuit to, alluded but did not endorse, “rather abstract harm” that exist may because “the Counties’ flow control or- dinances have removed the waste generated Oneida and Herkimer Counties from the national for waste marketplace 3d, services.” 438 F. processing at 160. We find it unneces- to decide whether sary the ordinances impose incidental any burden on interstate commerce because any burden arguable does exceed benefits of the public ordinances.

The ordinances give Counties a convenient and ef- fective way finance their integrated waste package services. While disposal “revenue is not a local generation discrimination that can interest justify commerce,” Carbone, S.,U. at 393 added), (emphasis we of the Pike test. think it is a cognizable benefit for purposes At the same time, the ordinances are more than financing tools. increase in at They least two recycling ways, confer- a prescription event, economy. state control of the Congress retains authority under the Commerce Clause as written to regulate inter commerce, state by private whether engaged public entities. It can use power, this as it in the past, has limit use of fran state exclusive See, (1824). g., e. chises. Ogden, Gibbons 1, 221 Wheat. and environmental benefits health significant upon ring in- First, enhanced they Counties. create citizens kinds of other and proper disposal centives recycling Solid Oneida- of waste. waste disposal expensive Herkimer, but accept recyclables many Counties free, of hazardous waste for effectively encouraging forms Second, to sort own trash. citizens their requiring their *15 facilities, be the Counties to all waste deposited Authority enforce their to increased ability recycling have markedly site, could take waste to If the haulers any disposal laws. an of enforcement would be much more level achieving equal reasons, if not For these impossible. any arguable costly, on commerce does interstate burden ordinances impose their benefits. public not exceed

[*] ^[*] ^[*] are The ordinances exercises of police power Counties’ effort to waste a and tradi- in an address disposal, typical The haulers concern of local neverthe- tional government. us to laws entities while

less ask hold favoring public the same are to an all businesses treating subject se rule of because asserted discrimi- almost invalidity, per alternative, In the that the Counties’ maintain they nation. test, Pike because cannot survive the more permissive laws is There a common of asserted burdens commerce. to invitations rigor- thread these They arguments: under the aus- scrutinize economic legislation ously passed time when There was a this Court pices police power. for under make binding society, such judgments presumed the Due Process Clause. See interpreting guise (1905). We should not York, v. New 198 U. Lochner under the for judicial to reclaim that supremacy seek ground of the dormant Commerce Clause. banner Court of Appeals the United States judgments Circuit are affirmed.

the Second so

It is ordered. in concurring part. Scalia, Justice I and II-A II-C of I Part Parts join through Court’s I write to reaffirm view my separately “the opinion. an is so-called Commerce Clause unjustified ‘negative’ judi be its invention, cial expanded do beyond existing Corp. Tracy, General Motors v. main.” 278, 312 (1997) (Scalia, J., “The historical concurring). record pro reading vides no Commerce grounds Clause to other what it than authorization for says Congress —an Tyler Pipe Industries, Inc. Wash commerce.” regulate ington Dept. Revenue, State (1987) S.U. J., part concurring dissenting part). (Scalia, to enforce on stare decisis I have been a willing grounds Commerce Clause in two self-executing situa- “negative” “(1) a tions: state law that against facially discriminates (2) commerce, state law against of law held uncon- indistinguishable type previously Lynn Creamery, this Court.” West Inc. stitutional Healy, J., concurring (Scalia, *16 As clear, makes judgment). opinion flow-control today’s law in this meets It issue ease neither condition. benefits public entity a traditional performing local-government private function and treats all entities the same precisely constitutes way. “Disparate treatment discrimination only if are, objects treatment for the relevant disparate Camps situated.” purposes, similarly Newfound/Owa- tonna, Inc. Harrison, v. Town (1997) 564, U. S. J., None of this Court’s cases con- dissenting). (Scalia, cludes that entities entities and public similarly situated Commerce To hold that Clause they purposes. are “would broaden the Clause Commerce negative beyond its intrude and on existing scope, tradi- regulatory sphere Tracy, supra, . . . the States.” tionally occupied by J., concurring). (Scalia,

I am unable in Part II-D of the join principal opinion, “Pike which so-called plurality performs balancing.” is values left various balancing Generally speaking, what Clause the Commerce Congress precisely —which Clause) (the envisions. real Commerce in the Thomas, judgment. Justice concurring A Car- C & I joined in Although I concur the judgment. Clarkstown, I no (1994), S. 388 bone, Inc. v. longer 511 U. The Commerce decided. correctly negative it was

believe has un- in proved has no basis the Constitution Clause Newfound/Owatonna, in See Camps workable practice. (1997) Harrison, 520 U. S. 610-620

Inc. v. Town of Industries, Inc. Tyler Pipe J., (Thomas, dissenting); Revenue, 483 U. S. 232, 259-265 State Washington Dept, of (1987) (Scalia, J., dissenting part); concurring part J.).C. As Cases, License 5 How. (Taney, 578-586 shows, dissent appli- debate between majority on Clause turns solely pol- cation of the Commerce negative this Because considerations, not the Constitution. icy commerce, interstate has no role regulating policy Clause Commerce negative I would discard the Court’s jurisprudence.

I have Power Clause, shall “Congress Under Commerce Nations, and among with Commerce foreign ... regulate [t]o Tribes.” Indian States, and with the several of the Clause allows 3. I, §8, cl. Const., language Art. but also commerce only regulate Congress State commerce. of interstate state regulation prevent (1962); 451, 456 v. Todd Corp., Bd. Ins. Shipyards (1824). on the 1, 210 Expanding Wheat. Ogden, Gibbons *17 on Con conferred explicitly interstate-commerce powers as the Commerce Clause this has interpreted gress, it believes laws strike down state for courts to a tool in the is no basis there But commerce. inhibit for that interpretation. Constitution this point, does not contest simply begins

The Court decisis: stare its analysis appealing terms limit the the Constitution does “Although we commerce, in have regulate long of States power as an restraint implicit the Commerce Clause terpreted of even in the absence on state authority, conflicting the State See Case Tax, Freight statute. federal of Board Wardens (1873); 232, 279 Cooley Wall. of of ex rel. Port Distressed Philadelphia Relief of Soc. for of Pilots, Ante, (1852).” 12 How. 338. v. Board Wardens Court’s reliance Cooley of of Port rel. ex Philadelphia Soc. Distressed of for Relief of Pilots, and Case (1852), State Freight How. of Tax, (1873), 15 Wall. 232 is curious because the Court has abandoned the of those cases in its reasoning more recent Tax State Cooley Freight jurisprudence. are premised the notion that upon the Commerce Clause is an exclusive grant power over Congress certain areas.1 subject “[wjhatever at 319-320 Cooley, supra, (holding subjects of this [Commerce Clause] their nature power national, or admit one uniform only system, plan regulation, may said to justly be of such a nature toas exclu- require sive legislation by but Congress” “the nature of holding th[e] state subject [of is not such pilotage laws] require its exclusive and therefore legislation” upholding state laws Commerce State negative Clause challenge); Tax, Freight at 279-280 supra, rationale). same (applying The Court, however, no limits longer Congress’ power by analyzing whether of state subjects regulation “admit only one uniform system,” Cooley, supra, Rather, 319. justification This negative Commerce Clause is itself unsup ported by the Industries, Tyler Pipe Constitution. See Inc. Wash ington Revenue, State Dept, (Scalia, J., 261-262 concurring in part dissenting in part).

351 in which the focuses upon way modern jurisprudence the whether the to decide regula- those subjects regulate States ante, Because E. 338-339, 345. g., tion permissible. Tax has been and State Freight Cooley reasoning no foundation for today’s they entirely, provide

rejected decision. whether the ordi-

Unfazed, the analyze Court proceeds nances face com- against “discriminat[e] [their] Ante, merce.” at 338. none cases Court Again, cites how the absence discrimination explains presence is relevant whether the ordinances are constitu- deciding and at least one case tionally permissible, ad- affirmatively mits that the nondiscrimination rule has no basis in the Con- v. New stitution. Philadelphia 617, 623 Jersey, U. S. (1978) (“The bounds of these restraints nowhere in appear the words of the Commerce Clause, but have emerged gradu- in the decisions of this ally Court effect to its basic giving Thus cloaked purpose”). of the Commerce “purpose” Clause, the rule discrimination that the Court applies to decide this case exists untethered from the written Con- stitution. The rule instead depends upon policy prefer- ences of of this Court. majority

The Court’s policy an unsuitable basis for preferences constitutional doctrine because time, shift over as dem they onstrated the different theories the has Court offered to nondiscrimination support principle. early years rule, nondiscrimination Court struck down a state health law “the because enactment similar of a statute by one of each the States the Union would result composing in the destruction of commerce the several States.” among Minnesota v. Barber, (1890); see Foster- Fountain Packing (stat Co. (1928) Haydel, 1, 13 that a Commerce Clause ing violation would occur if the state statute would obstruct and . . . burden in “directly commerce”). terstate More has struck recently, on its preference for na state laws sometimes based

down Trucking g., American Inc. Assns., e. see, tional unity, Michigan Common, Pub. Serv. (jus rule stating the nondiscrimination Con tifying “[o]ur *19 that the stitution the of the theory was framed upon peoples (internal or swim together” several states sink must quota and other times on the omitted)), tion marks basis of antipro Oregon g., Systems, e. Waste Inc. v. see, tectionist sentiment, Department Quality Environmental Ore., 93, 511 S. of (1994) the interest the (noting “avoid[ing] tendencies Energy New Co. Ind. v. Balkanization”); toward economic Limbach, (1988) 269, 273-274 486 U. S. that the (stating nega tive Commerce Clause economic “prohibits protectionism— that is, measures to benefit regulatory in-state eco designed nomic interests out-of-state by burdening see competitors”); Carbone, (“The also S.,U. at 390 central rationale for the rule discrimination is to against state prohibit municipal laws whose is local economic object laws that protectionism, would excite those and jealousies measures retaliatory the Witsell, Toomer v. Constitution was to designed prevent”); 334 U. 385, 403-404 down a law that “im (striking an artificial pose[d] on the economic rigidity the pattern industry”).. (and

Many above-cited cases and today’s majority dissent) rest on the erroneous the Court assumption must choose between economic and free protectionism market. But the Constitution vests fundamentally leg- islative choice To Congress. the extent that Congress does not exercise its choice, make that Con- authority stitution not does limit the States’ com- power regulate merce. In the face of congressional silence, the States free to set the balance between the free protectionism market. Instead of this reality, constitutional accepting Court’s negative Commerce Clause nine jurisprudence gives Justices of this Court to decide the power appropriate balance.

II more demonstrates, than 100 despite As foregoing is no doctrine, Commerce Clause there negative years this case under current law. Nota- way decide principled cannot does consider this case the Court bly, “[i]n of the Constitution the historical light language Maine, (1999). context.” Alden 706, 743 Like- 527 U. S. it cannot follow “the cardinal rule construe wise, provi- Balsys, sions in context.” United States (1998). construe, And with no text to Court cannot choice of words” take into account Founders’ “deliberate Wright States, v. United natural or “their meaning.” (1938). the debate between Furthermore, no reveals, and the opinion the Court’s opinion dissenting to the facts of this case.2 case law applies not discriminate ordinances do why

Explaining *20 commerce, that is the Court states “government health, the vested with the of responsibility protecting Ante, at and welfare of its citizens.” 342. According safety, Court, a business rigor- to the law in-state favoring requires of ‘simple the law “is often the product ous because scrutiny Ante, at 343. A law favoring economic protectionism.’” toward however, be directed local “may government, unrelated to protectionism.” of legitimate number goals Ibid. In razor contrast today’s This distinction is thin: trust based on Court’s approach (apparently deferential of the equivalent the Court has applied local government), it is unchallenged in other cases even where scrutiny strict in-state in favor of private law discriminated state See Bar- reason. nonproteetionist for a legitimate, entities swpra, ber, the State’s inspection down at 319 (striking negative Com question whether addresses previous No case entity. agree I with government to favoritism a applies Clause merce Clarkstown, (1994), Carbone, Inc. that C & A Ante, at 339-341. resolve this issue. did not

law even it did for livestock not though challenge “[t]he pre- enacted, this statute was sumption good faith,... Minnesota”). health of the protect people Carbone, which involved discrimination in favor of pri- entities, vate we did faith of not doubt the good munici- to deal with waste a flow- pality attempting through control 511 U. But ordinance. at 386-389. we struck down the it did ordinance because not allow interstate enti- Id., ties to at waste disposal. 390-395. The participate Carbone deciding favoritism majority distinguishes of a is than less government monopoly suspect government I no entities.3 see basis for regulation drawing which, such conclusion, a if suggests a anything, policy- driven over preference monopoly government privatiza- Ante, tion. that “waste is both (stating disposal typically traditionally function” government (brackets omitted)). and internal marks What- quotation reason, ever the is not the choice Court’s make. Like all of the Court’s Commerce Clause previous cases, negative decision leaves the future of state and local today’s regula- tion of commerce the whim of the Federal Judiciary.

Ill its Commerce Clause Despite acceptance negative juris- the Court prudence, concern about expresses “unprece- dented and unbounded interference courts with state Ante, and local It 343. government.” explains: “The dormant Commerce Clause license roving *21 for federal courts to decide what activities are appro- for state to undertake, and local and priate government Post, argues preference dissent that such a is unwarranted. J.) (“I Auto, (opinion 365-366 of accept proposition cannot the that laws in favor to discriminating enterprises unlikely of state-owned are so the product of should be protectionism they exempt economic that standards”). the usual dormant Commerce Clause the market what must be province activities competition. reason to hand local businesses

“There is no step not a could obtain the through they political victory Ante, at 343, 345. process.” not is a license”

I that the Commerce Clause “roving agree victories should not deliver to businesses that the Court the process. failed obtain through political they I its rheto- believe powerful I differ with the Court because doctrine is undermined the it ric completely applies. v. New this Court’s Lochner

In analogy regard, re- York, (1905), that the should U. Court S. suggests rather it. Clause, Commerce than tweak ject negative Ante, at In Lochner the located a free 347. “right in a provision nothing contract” constitutional says The Court’s the sort. 198 U. at 57. Commerce negative cloth, from whole just created Clause jurisprudence, Yet it in Lochner. to- as the vindicated “right” illegitimate error. does that doctrinal decision repudiate day’s it the error Rather, narrowing further propagates reasons —reasons that Commerce Clause policy negative find to be of this Court majorities may entirely later illegitimate. Just territory: so revisits familiar majority doing, Lochner, the Court narrowed right

three after years Lochner. but did not overrule reasons contract policy 412, 422-423 (upholding Muller Oregon, differ- for women because the requirement maximum-hours legis- the “two difference between sexes” “justifies ence lation”). trifles Court, today’s majority Like Muller fails to yet an jurisprudence with unsound illegitimate it. abandon I power regulate

Because believe Court, and not is a given Congress commerce power Court. the judgment I concur

356 Alito,

Justice with whom Justice Stevens and Jus- Kennedy tice join, dissenting. Carbone, Clarkstown, C A & Inc.

In v. (1994), 383 we held “a flow ordinance, so-called control re- which all solid waste to at a quire[d] processed designated trans- fer station before leaving municipality,” discriminated against interstate commerce and invalid was under the Com- merce it Clause because “deprived] competitors, including Id., firms, out-of-state access to a local market.” at 386. Because this case are provisions challenged essentially in Carbone, identical to the ordinance invalidated I respect- fully dissent.

I This has Court the Commerce “interpreted Clause to in- validate laws that local commercial barriers impose or dis- criminate an article of against commerce reason by of its Id., or destination origin out of State.” at 390. As the “ ‘ ’” a law acknowledges, this “discriminat[es]” con- text if it mandates “‘differential treatment of in-state and ” “ out-of-state interests’ economic benefits way ‘that ” Ante, Ore- former and burdens the latter.’ at 338 (quoting gon Systems, Department Waste Inc. Environmental v. Quality Ore., 511 (1994)). S. U. A local law that discriminates against commerce is sustainable if it serves a only local that could not be legitimate purpose Tay- Maine served as well means. nondiscriminatory lor, (1986). value, waste,

“Solid even if has is an it no article of com- Michigan Sanitary Landfill, Fort Gratiot Inc. merce.” Dept, Resources, Natural (1992). 353, 359 Ac- U. cordingly, [trash] laws “discriminate reason State,” Carbone, of its destination out of origin if serve a only sustainable they legitimate well by could not be served as nondiscrimina- purpose that tory means. re- invalidated a local ordinance Carbone, this Court *23 Clarkstown, waste in New

quiring solid all nonhazardous facility. deposited specific The at local transfer York, to a against in- the discriminated concluded that ordinance Court “hoard[ed] the waste, commerce because it solid terstate get preferred proc- it, rid of for the benefit of the demand facility.” essing Id., at 392. explained ordinance did

The Court the flow-control regulation purpose nonprotectionist not: a that a would serve profit- town-sponsored facility will be “It that the ensures build it and able, so that the contractor can Clarkstown local buy years.” Id., cost in five at 393. it back at nominal can financing the ordinance is a “In other words flow control ... The that “rev- concluded, however, Ibid. Court measure.” justify generation not interest that can dis- enue a local Ibid. crimination interstate commerce.” has The Court also held that “Clarkstown number nondiscriminatory addressing alternatives for health and problems alleged justify the ordinance”— environmental including safety regulations” that could be enacted “uniform competitors... underprice do the market to “ensure safety.” cutting Thus, by Ibid. corners environmental any legitimate the ordinance because the Court invalidated accomplished by ordinance could be interests served nondiscriminatory through id., means. See 392-393. distinguished meaningfully from Car- cannot be This case only “[t]he acknowledges, salient itself As bone. invali- is that the ordinance between the cases difference” privately owned in favor of a Carbone discriminated dated facility, here in favor laws at issue discriminate whereas the public by operated a state-created of “facilities owned corporation.” relies on the Ante, at The Court 334. benefit ownership uphold public between distinction applica- straightforward though laws, flow-control even opposite ante, to the result. See of Carbone would lead tion The 342-344. distinction public-private drawn Court is both and without illusory precedent.

II The fact that the flow-control laws at issue discriminate favor of a does government-owned enterprise not meaning- this case Carbone. fully fa- distinguish preferred was, sure, Carbone to be cility owned nominally pri- vate contractor who had built on the facility town’s behalf, but it would be to describe misleading facility for the private. contractor’s exchange promise build for the town free of facility and then charge to sell it to $1, town five later for the town years that, guaranteed *24 the first five during the years existence, facility’s the con- tractor would “a receive minimum waste flow of 120,000 tons and that

per the contractor could year” an above- charge market fee. 511 U. at 387. If tipping the “re- facility ceived less than 120,000 tons in a the town year, [would] make the fee up deficit.” To tipping Ibid. resi- prevent dents, businesses, and trash haulers from their waste taking elsewhere in of lower pursuit fees the town tipping (leaving for responsible shortfall covering any in the contractor’s revenue guaranteed stream), the town enacted an ordinance all nonhazardous “requiring] solid waste within the town to at” the deposited Ibid. preferred facility. This Court observed that of this object “[t]he arrangement was to amortize the cost of the transfer station: The town finance would its new with the facility income generated Ibid, the added). fees.” tipping “In (emphasis other words,” the Court “the flow explained, control ordinance measure,” id., [wa]s financing at what everyone— the including as the town’s new regarded transfer Court — station.

The real difference only between the at issue in facility Carbone its in this case is that title the counterpart to had not the formally former passed municipality. yet that exalts over substance a test form adopting distinction, since, on this particularly turns technical barring law, obstacle state the transaction Car- presented by been for the could have restructured bone provide passage end, title at of the rather than the beginning, 5-year period. reason,

For this not that it is Carbone very surprising not Court did the dissent’s observation that dispute was for all facility practical owned preferred purposes id., See at municipality. (opinion J.) Souter, (“Clarkstown’s transfer fa- station essentially municipal id., at nominal cility”); (describing “proprietor” the transfer station as an “essentially municipal agent To the the Court re- government”). contrary, repeatedly ferred to the transfer station in terms that suggesting id., transfer did in station fact to the town. See belong that its “[t]he town would finance new (explaining facility with the income fees” generated by tipping (emphasis added)); id., at flow- (observing challenged ordinance control was the town- “ensur[e] designed id., will be facility (concluding sponsored profitable”); that, elected to use market to earn reve- “having open nues its the town project, may employ discriminatory an over rival busi- regulation give project advantage added)). nesses out State” (emphasis *25 the Court dismisses those statements as “at Today best Ante, Court, inconclusive.” n. 3. The fails 340, however, to offer as what other could any meaning explanation pos- attach sibly to Carbone’s references to Clarkstown’s repeated transfer station as a It also municipal facility. ignores fact that en- the ordinance which was included in itself, its in an to the Court’s re- tirety appendix opinion, repeatedly to the ferred station “the Town Clarkstown solid waste facility.” 396, 398, 399. The Court likewise parties acknowledge openly in ac- Carbone

fails to municipal knowledged character of the transfer station. (“The p. 92-1402, Cert., 1993, T. Pet. for O. No. town’s See disposal facility operated designated trash agreement (emphasis with the town” an contractor, under added)); p. T. No. Petitioners, 92-1402, Brief O. safety (arguing purported clear that the and health that “it is simply ordinance] [the derive flow-control benefits facility” viability waste of the town’s continued economic omitted)); quotation (emphasis Brief marks added; internal (“The p. Respondent, 92-1402, Town T. No. O. Recycling, Inc., into a contract with Clarkstown entered operate provided firm build and the new for that which added)). facility” (emphasis Town ambiguities much statements, less I those see no they inconclusive”; reflect to dismiss them as “at best reason purposes understanding was, for all that the station a clear municipal Clause, a to the dormant relevant Commerce facility.

Ill discriminatory legis- any event, In we have never treated entity greater simply fa- because lation with deference government-owned legislation enter- was vored unduly prise. suggesting relies otherwise, “‘offending passing local laws observation that Carbone’s shrimp, or milk—for meat, it hoard a local resource —be (emphasis orig- Ante, at 341 benefit local businesses.’” inal). in- “businesses,” the Court the word Carbone’s use of “extending” was sists, somehow reveals Carbone jurisprudence “to cover dis- our dormant Commerce Clause government.” Ante, at 341. crimination in favor of local long required. “extension]” has The Court But no was scrutiny, discriminatory legislation subjected to strict today, exception recognized for discrimi- until an never, has entity. of a nation favor state-owned

361 A that the Commerce Clause This Court long ago recognized a in favor of can be violated law that discriminates 1890’s, In the Carolina South state-owned monopoly. laws a state the exclusive enacted agency right giving within that facilities alcoholic selling beverages operate these under the Commerce State, and laws were challenged Donald, (1897), and 165 U. S. 58 Vance v. Clause Scott v. (1898). Co., held W. A. 170 438 Vandercook U. S. that the Commerce Clause barred State prohibiting alcohol from out-of-state ven- its residents from purchasing but that this dors, id., see at the State could surmount residents to receive out-of-state ship- by allowing problem id., use. at 452. The ments for their See Court’s personal based on the fundamental dormant Com- was same holding merce in Carbone.1 As the Court Clause principle applied Vance, it in “‘cannot discriminate State against put in and them from articles bringing importing [lawful] ” “ ‘a hindrance other because such discrimination is States’ an of the to interstate commerce and unjust prod- preference similar ucts State enacting products Scott, S., at at other States.’” (quoting supra, (the 101). Carbone, bars Cf. Commerce Clause supra, laws that commercial barriers or dis- state and local “impose of its an article of commerce reason criminate against State”). or destination out of origin Amendment, it for the laws

Thus, were Twenty-first States state-owned monopolies many liquor creating —which be deemed under the discriminatory maintain today —would Heald, (THOMAS,J., dis Granholm See 517-518 (“These against out-of- liquor regulation schemes discriminated senting) interests____ permit State that did not direct monopolies economic state consumers, thought to discriminate example, were shipments Vance, (citing 170 U. and retailers...” against out-of-state wholesalers 451-452)). *27 v. Heald, Granholm See Clause. dormant Commerce (2005) that the Twenty-first 460, (explaining S.U. to “assume for States it direct makes possible Amendment state-run see outlets”); distribution through control of liquor id., that, J., although dissenting) (noting at 517-518 (Thomas, “dis- in sale liquor “state monopoly” a laws creating commerce, are “within interstate they against criminate]” are Amendment” there- of the Twenty-first ambit the dormant under Commerce from scrutiny fore immune course, in Clause). no is, comparable provision There to discriminate States authorizing the Constitution ser- of waste disposal processing out-of-state providers a monopoly means of vices, government-owned either by otherwise.

B ever that discriminatory Nor has this Court suggested leg- to fa- a is entitled state-owned enterprise islation favoring state-owned entities are sure, To be ac- vorable treatment. doctrine. the market-participant status under corded special here. But that doctrine is not applicable doctrine, State is permit- Under the market-participant with as to ted to discretion parties exercise “‘independent Stake, Reeves, Inc. will whom deal.’” [it] (1980). allows engage The doctrine thus States 438-439 (e.g., in otherwise-discriminatory selling certain practices the State’s own from, to, or exclusively exclusively buying a market residents), as the partici- so State “acting long regulator,” South-Central rather than as a market pant, Development, Wunnicke, Timber Inc. added). (emphasis what the market- exactly are

Respondents doing as mar- While acting doctrine cannot: says they participant business en- fee-for-service ket participants by operating interstate there is an established an area which terprise market in a market, are also respondents regulating their special gov- manner and discriminatory claiming insulates from a dormant them status somehow ernmental ibid. See Clause challenge. Commerce doctrine the market-participant insist

Respondents a de- are here because they asserting has no application Brief for Re- doctrine, fense under market-participant Re- misses 24-25, point. but that argument spondents a defense under can assert of whether respondents gardless make doctrine, this Court’s cases market-participant com- cannot discriminate against that States clear as market unless solely participants. merce they acting its however, contrary prior the Court suggests, Today, in-state in- favor of that States can discriminate holdings, *28 and as a a market while both as participant terests acting market regulator.

IV in discrimination favor condemning Despite precedent to de- the Court attempts enterprises, government-owned it creates today. the rule velop justification logical First, three assertions. rests on principal That justification to re- make sense that it “does not the Court insists simply local and laws favoring pri- laws government favoring gard the latter with because vate industry equal skepticism,” ” ante, economic protectionism,’ of ‘simple “often product Wyoming Oklahoma, 502 U. S. 437, 454 at (quoting num- toward any former directed (1992)), “may while the ante, unrelated to protectionism,” goals ber legitimate reasons that deference to legisla- Second, 343. Court at landfill is espe- in favor of a municipal tion discriminating “ is both that disposal ‘[w]aste considering cially appropriate function.’” a local government and traditionally typically 2001) (Cala- (CA2 Ante, at 344 (quoting 245, 3d 261 F. that re- Third, the Court bresi, suggests J., concurring)). because are not discriminatory laws flow-control spondents’ interests exactly business “treat in-state private they Ante, at 345. I find each of ones.” as out-of-state same unpersuasive. these arguments

A I see for the that no basis Court’s discrimina- assumption in favor in-state owned by tion of an facility government is to serve unrelated to likely “legitimate goals protection- in ism.” favor an in-state Discrimination fa- government Carbone, interests,’” serves “‘local economic cility J., in (O’Connor, concurring judgment) (quoting Ray- Rice, mond Motor Inc. v. n. 18 Transp., to the of local (1978)), benefit residents who are em- inuring facility, businesses ployed supply facility services, with local workers such goods employed by businesses. It is therefore in the read surprising opinion state discrimination favor of a state- owned business is not be motivated likely economic protectionism. countries, in other state where

Experience ownership more common than it is in this teaches country, govern- ments often discriminate favor of state-owned businesses them from international (by shielding competition) precisely for the those who derive economic purpose protecting businesses, benefits from those their including employees.2 Such discrimination amounts to economic protectionism realistic sense of the term.3

2See, Owen, e.g., Sun, Zheng, & Antitrust in China: The Problem of Incentive Compatibility, Competition 123, 131-133 (2005); L. J. of & Econ. (SOEs)— Qin, Regulation WTO Enterprises of Subsidies to State-Owned A Critical Appraisal Protocol, of the China Accession Int’l Econ. L. J. of (Dec. 2004). 863, 869-876 3It Clause, therefore strange seems that the Commerce which has his torically been protect understood to and States prohibit free trade from isolation,” “plac[ing] position [themselves] a of economic Baldwin Inc., A F. Seelig, (1935), G. is now being construed to blatantly condone protectionist grounds legislation laws on that such is necessary to support governmental to commandeer local mar efforts the construction, a particular ket for good adopting or that service. Court sends a bold enticing governments throughout message to the United permissible, States: Protectionist now so as legislation long the same By token, discrimination in favor of an in-state, owned ends, serve such privately facility may legitimate promotion health For public safety. a example, State enact might legislation favor of discriminating or livestock within produce State, grown reasoning the State’s can more monitor the inspectors use of easily pes- ticides, fertilizers, and feed on farms within the State’s bor- ders. Such would almost legislation be unconstitu- certainly tional, its notwithstanding potential health promote public See safety. v. New 437 U. Philadelphia Jersey, that the Court has (noting invalidated repeatedly where legislation “a presumably legitimate goal was sought to be achieved by means of illegitimate isolating State the national economy”). in the Court’s fallacy can be illustrated approach by a law that

comparing discriminates in favor of an in-state owned facility, by corporation whose shares are publicly held, and law in favor of an discriminating otherwise iden- tical is owned facility or State municipality. Those who are favored and disfavored these two laws are the same with one essentially The law major exception: favoring corporate facility benefits the cor- presumably shareholders, most poration’s of whom are not local probably residents, whereas the law favoring government-owned facility benefits the presumably people State enacting I cannot understand municipality. the former why only and not law, the latter, should be as a tool of eco- regarded nomic Nor do I protectionism. think it is realistic or consist- ent with our to condemn precedents some discriminatory laws as while protectionist other, discrimi- upholding equally laws as lawful natory measures to serve designed legitimate local interests unrelated to protectionism.

For these reasons, I cannot accept proposition laws in favor of state-owned discriminating enterprises the enacting government private-sector excludes all participants from the affected local market. *30 of economic to be product protectionism

so unlikely dormant the usual Commerce should be from exempt they Clause standards. Commerce under the dormant Clause in-

Proper analysis whether Act volves more than an into inquiry challenged unre- “directed toward ... legitimate goals is some sense are the to means important lated protectionism”; equally If the chosen means take which realized. those goals that discriminates interstate the form of a statute against or in effect’ ‘either on its face ”—then practical commerce —“ to demon- falls enacting government] [the “the burden the statute ‘serves legitimate strate both that pur- could not be served as well this purpose pose,’ Taylor, U. S., means.” available nondiseriminatory Hughes Oklahoma, (1979)). 138 (quoting means are themselves discrimina- Thus, if the legislative then how legitimate nonprotectionist tory, regardless goals be, the is may legislative legislation underlying fact that a discrimi- strict subject scrutiny. Similarly, some be directed toward law natory “may [in sense] does number of unrelated goals protectionism” legitimate law existence such nondiseriminatory. not make the relevant, is not to the law is whether goals discriminatory, the law can allowed stand even but whether be though it discriminates commerce. And even against then, existence is dis- enough; legitimate goals such can be where criminatory goals legislation upheld only cannot achieved through adequately nondiseriminatory supra, g., Philadelphia, (“[T]he e. See, means. at 626-627 evil of can means as well protectionism legislative reside ends,” that “whatever pur- State’s] such legislative [the it not be may by discriminating pose, accomplished articles of commerce State outside the unless coming to treat reason, there some from their them apart origin, Washington Advertising Apple Hunt State differently”); Comm’n, 352-353 “we (explaining *31 to” an motive discrimi- protection not ascribe economic need “if even laws; such to strict subject scrutiny laws are natory the of consumers declared purpose protecting enacted in the fraud marketplace”). deception Madison, Dean Milk Co. (1951), is instruc- a on this That ease involved dormant Commerce tive point. milk an ordinance all sold Clause to challenge requiring five miles of the Madison, Wisconsin, to within be processed id., at The See 350. ordinance “pro- central city’s square. measure,” id., 354, a to be health at have may fessed] and its residents the conferred some benefit the city the extent that it succeeded in and qual- guaranteeing purity in- of the milk sold in the The Court nevertheless city. ity ordinance, health the validated concluding any public benefits it have conferred could be achieved through may alternatives,” a sys- “reasonable including nondiscriminatory to sell milk tem would allow a nonlocal dairy qualify with in the that it was in appli- city upon proving compliance Id., health and 354-356. cable safety requirements. did real

The Court not whether the inquire purpose to benefit health and or to safety ordinance was public pro- make interests; tect local economic nor did Court ordinance effort determine whether or to what extent fact, have health succeeded in may safety. promoting could fairly the Court assumed that ordinance apparently Id., The health at 354. be characterized “a measure.” could not nevertheless concluded that the ordinance Court a it an economic barrier protecting stand because “erect[ed] from without local major industry against competition com- on interstate State,” burden discriminatory “plac[ed] merce,” and was “not essential protection Id., 356. health interests.” was that

The concern overarching expressed invite ordinance, intact, multiplication if left “would very purpose trade areas destructive preferential Id., the circum- “Under at 356. Commerce Clause.” concluded, “the the Court regula- here stances presented,” in its that ‘one state dealings the principle tion must yield in a itself economic position another may place with ” Ibid, Inc., A. F. Seelig, Baldwin G. (quoting isolation.’ (1935)). the laws here. challenged dooms reasoning same Milk, these laws discriminate Dean Like the ordinance local inter- favoring commerce (generally are defended on the interests), ground but over nonlocal ests unrelated to protectionism goals serve they legitimate *32 environment). health, (e.g., safety, protection in this the laws at issue And while I do not question dormant the laws offend the case serve legitimate goals, attained ef- those could be because goals Clause Commerce Indeed, no less means. nondiscriminatory fectively through “uni- Carbone, be achieved could through than in those goals enacted without form safety and] regulations [health that “would ensure competitors to discriminate” object market, do not underprice program] the municipal [to 393. at on environmental safety.” corners cutting free, course, “subsidize would also Respondents taxes or bonds.” municipal through [program] general the[ir] market Id., at 394. “But elected to use the having open for” waste management program, revenues their to earn discriminatory regulation “may employ respondents rival businesses from an over advantage that [program] give Ibid. out of State.”

B dis- next that deference legislation The Court suggests is ap- in of a landfill especially favor municipal criminating “ is both typically disposal ‘[w]aste considering propriate Ante, function.’” a local and traditionally government (Calabresi, J., 3d, concurring)). 261 F. at 264 344 (quoting two I disagree grounds. stand- that any

First, recognized this Court has previously whether a particular “that turns on a appraisal ard judicial is “un- function ‘traditional’” is ‘integral’ governmental Garcia in and unworkable sound principle practice.” Metropolitan Authority, San Antonio Transit (1985). twice experimented 546-547 has Indeed, the Court with such standards —first in context of intergovernmen- States, see South Carolina v. United tax tal immunity, U. S. 437 and more in the (1905), context of state recently see Na- under Clause, the Commerce regulatory immunity League Usery, tional Cities 426 U. S. 833 (1976) only — Garcia, abandon them later as unsound. See analytically supra, League National Cities); New at 547 (overruling States, York v. United South U. S. 572 (overruling States). Carolina v. United Thus, to the extent today’s rests on a distinction between holding “traditional” govern- mental functions and their nontraditional see counterparts, ante, it cannot be reconciled with prior precedent.

Second, although many municipalities this have country assumed long of local responsibility disposing garbage, supra, see Carbone, at 419-420, and J., n. 10 dis- (Souter, most of the senting), this garbage still produced country sector. See Brief for managed National Solid Amici Curiae Wastes Association et al. as Management *33 of (“Today, nearly two-thirds waste at received landfills solid is received at landfills”); Beck, Inc., sector R. W. al., et of Size the United States Solid Waste Industry, 2001) ES-3 p. Environmental (Apr. (study sponsored by Foundation) Research and Education 1999, that (noting 69.2% of the waste solid in the United produced States was businesses). owned managed by privately that respect, the Court is mistaken in simply that waste dis- concluding is a local posal function. “typically” government Moreover, the Court’s especially considering recognition “ that notion of discrimination assumes ‘any comparison ” ante, General similar at entities,’ 342 substantially (quoting Corp. Tracy, Motors (1997)), v. 519 298 278, U. S. a “tradi- tional” dif- landfill is for municipal entirely present purposes from a

ferent monopolistic landfill supported by kind case at in this and in Car- discriminatory legislation issue bone. While the former rooted in may history be and tradi- tion, the latter been has deemed unconstitutional until today. Carbone, See at 392-393. It is therefore far supra, from at clear that issue here can be laws fairly described a function and traditionally” serving “typically performed by local governments.

C is Equally the Court’s unpersuasive suggestion not flow-control discriminate laws do interstate com- against merce because they “treat in-state private business inter- Ante, ests exactly the same as out-of-state ones.” at 345. is Again, critical issue whether legislation challenged discriminates interstate If it does, commerce. then those harmed regardless whether it reside entirely outside the State the law to question, subject strict scrutiny. Indeed, this has “‘a long recognized Court burden a State imposed by commerce is upon sustained simply because statute it imposing ap- alike plies States, all the people including people ” Rebman, Brimmer v. the State such statute.’ enacting Barber, (quoting Minnesota Fort 313, 326 (1890)); Landfill, Gratiot Sanitary accord, Inc., Milk, S., 504 U. at at n. 4. Dean 361-363; 340 U. It therefore laws makes no difference the flow-control here issue in-state out-of-state businesses apply Carbone, (“The alike.4 See supra, [flow-control] clearly A granting monopoly rights single, law local business would to a simply challenge not be immune from Clause be a dormant Commerce it the local competitors cause excluded both in-state and out-of-state (1994). Carbone, Clarkstown, 383, 391 See C & A Inc. market. strange significance It is therefore to the fact for the attach *34 apply and out-of-state flow-control in-state laws issue here competitors alike. in- because in-state discriminatory is no less

ordinance also covered by prohibition”). processors town H* has been understood long

The dormant Commerce Clause kind of discriminatory legislation upheld to prohibit deci- I therefore in this case. would reverse the Court of the Court of Appeals. sion