[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12729

____________________

NORWEGIAN CRUISE LINE HOLDINGS LTD,

a Bermuda Company,

NCL (BAHAMAS), LTD.,

a Bermuda Company agent of Norwegian Cruise Line,

SEVEN SEAS CRUISES S. DE R.L. LLC, 

d.b.a. Regent Seven Seas Cruises,

OCEANIA CRUISES S. DE R.L., 

d.b.a. Oceania Cruises,

Plaintiffs-Appellees,

versus

STATE SURGEON GENERAL, 

Florida Department of Health, in his official capacity, 

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2 Opinion of the Court 21-12729

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:21-cv-22492-KMW

____________________

Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and BRASHER, 

Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal concerns whether a Florida statute that prohibits all businesses operating in the state from requiring customers to 

provide documentary proof that they are vaccinated against 

COVID-19 violates the Free Speech and Commerce Clauses of the 

Constitution. Norwegian Cruise Line Holdings Ltd., a corporation 

headquartered in Florida, operates cruise ships that travel around 

the world. Norwegian requires everyone on board its ships to be 

vaccinated against COVID-19. To enforce that policy, Norwegian 

requires its customers to provide proof of vaccination. Florida 

sought to protect its residents from that kind of discrimination by 

enacting a statute that prohibits businesses from “requir[ing] patrons or customers to provide any documentation certifying 

COVID-19 vaccination or postinfection recovery to gain access to, 

entry upon, or service from the business operations in [Florida].” 

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FLA. STAT. ANN. § 381.00316(1). Norwegian sued Florida’s Surgeon 

General and moved for a preliminary injunction. The district court 

entered a preliminary injunction on the grounds that the statute 

likely violates Norwegian’s right to speak freely, see U.S. CONST.

amends. I, XIV, and likely unduly burdens interstate commerce, 

see U.S. CONST. art. I, § 8, cl. 3. 

We vacate the preliminary injunction. Florida’s statute is a 

regulation of economic conduct that only incidentally burdens 

speech, which does not implicate the First Amendment. And its 

burdens on interstate commerce do not exceed the benefits of furthering Florida’s substantial interests in protecting its residents 

from discrimination and invasions of privacy.

I. BACKGROUND 

After March 2020, the COVID-19 pandemic took a substantial toll on the cruise industry. Although some cruise lines voluntarily suspended operations, not all did. See 85 FED. REG. 16628, 

16631 (Mar. 24, 2020). As a result, the federal government published a No Sail Order and generally prohibited cruise-ship operations. Id. For more than a year, Norwegian’s “entire 28-vessel fleet 

was docked and inactive” because of the pandemic. And the halt of 

operations in that time allegedly cost Norwegian more than $6 billion. 

Later that year, the Centers for Disease Control and Prevention published another order that “establishe[d] a framework for a 

phased approach to resuming cruise ship passenger operations in 

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U.S. waters.” 85 FED. REG. 70153, 70153 (Nov. 4, 2020). The conditional sailing order included the “[e]stablishment of laboratory testing of crew onboard cruise ships in U.S. waters”; “simulated voyages designed to test a cruise ship operators’ ability to mitigate 

COVID-19 onboard cruise ships”; “a certification process”; and “a 

return to passenger voyages in a manner that mitigates the risk of 

COVID-19 introduction, transmission, or spread among passengers and crew onboard ships and ashore to communities.” Id. And 

the order “contain[ed] requirements for . . . [s]horeside COVID-19 

laboratory screening testing of all crew”; “onboard diagnostic testing capabilities for symptomatic travelers”; “shoreside COVID-19 

laboratory screening testing of all newly embarking crew”; and 

“continued compliance with complete, accurate, and acknowledged, No Sail Order Response Plans.” Id.

In April 2021, the Centers sent a letter to “Cruise Industry 

Colleagues.” The letter included updates for fully vaccinated passengers and crew. “In lieu of conducting a simulated voyage” as 

announced in the phased approach, cruise ship operators could 

“submit to [the Centers] a clear and specific vaccination plan and 

timeline to limit cruise ship sailings to 95 percent of passengers who 

have been verified by the cruise ship operator as fully vaccinated 

prior to sailing.” 

The State of Florida sued the Centers and moved for a preliminary injunction on the ground that the conditional sailing order 

and the later instructions were unlawful. See Florida v. Becerra, 544 

F. Supp. 3d 1241, 1246–47 (M.D. Fla. 2021). The district court 

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preliminarily enjoined the Centers “from enforcing against a cruise 

ship arriving in, within, or departing from a port in Florida the conditional sailing order and the later measures.” Id. at 1305. The Centers appealed to this Court and requested a stay of the injunction. 

After we first granted that request, we sua sponte vacated our initial order and denied the Centers’ request for a stay. See Florida v. 

Sec’y, Dep’t of Health & Hum. Servs., No. 21-12243 (11th Cir. July 

23, 2021). This year, the Centers moved to voluntarily dismiss the 

appeal and we granted that motion. So, the conditional sailing order and later instructions are now non-binding guidelines, but all 

cruise lines operating in Florida have voluntarily complied.

Norwegian planned to resume sailing from Florida for the 

first time “aboard the Norwegian Gem.” On July 9, 2021, the Centers approved Norwegian’s application for a conditional sailing certificate. Norwegian “attested to [the Centers] . . . that at least 95% 

of passengers and 95% of its crew on its upcoming cruise will be 

confirmed as fully vaccinated prior to sailing.” (Internal quotation 

marks omitted.) When Norwegian submitted its attestation, it 

“planned—and continues to plan—to ‘confirm[]’ passengers’ and 

the crews’ COVID-19 vaccination status through documentation, 

which [it] understand[s] to be the only reliable way of confirming 

vaccination status in this context.” 

Florida acted to discourage and prohibit businesses from requiring vaccination documents as a condition of service. Governor

Ron DeSantis issued an executive order declaring that “[b]usinesses 

in Florida are prohibited from requiring patrons or customers to 

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provide any documentation certifying COVID-19 vaccination or 

post-transmission recovery to gain access to, entry upon, or service 

from the business.” Fla. Exec. Order No. 21-81 § 2 (Apr. 2, 2021). 

The order required that businesses comply “to be eligible for grants 

or contracts funded through state revenue.” Id. § 4. The Governor 

explained that “many Floridians have not yet had the opportunity 

to obtain a COVID-19 vaccination, some have infection-acquired 

immunity, and others may be unable to obtain a COVID-19 vaccination due to health, religious, or other reasons.” Id. at 1. The 

order also stated that “individual COVID-19 vaccination records 

are private health information which should not be shared by mandate” and that “COVID-19 vaccine passports reduce individual 

freedom and will harm patient privacy.” Id.

The next month, the Florida Legislature enacted a statute 

that is substantively identical to section 2 of the executive order. 

The statute prohibits vaccine-documentation requirements as follows: 

[A]ny business operating in this state . . . may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or postinfection recovery to gain access to, entry upon, or service 

from the business operations in this state. This subsection does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or controlling government-issued guidance to 

protect public health. 

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FLA. STAT. ANN. § 381.00316(1). The statute further declares that 

the State “may impose a fine not to exceed $5,000 per violation.” 

Id. § 381.00316(4). The statute became effective on July 1, 2021. 

The proponents of the legislation based their support on reasons like those of the Governor. In the House, Representative Tom 

Leek—the sponsor of the bill and the chairman of the Pandemics 

Committee—reasoned that the statute would protect a substantial 

minority population from discrimination: 

We must recognize that vaccine hesitancy is real and 

understandable. Don’t get me wrong: . . . get vaccinated. Please! Get vaccinated; let’s return to normal. But recognize that it is fair for certain segments 

of our community to be hesitant about getting the 

vaccine, and that it is absolutely true that the largest 

segment of our community that is vaccination-hesitant is our minority population. It was not anti-freedom nor wrong when the State stepped in and said 

that employers could not discriminate on the basis of 

race. It was not anti-freedom nor wrong when the 

State told landlords that they could not discriminate 

against people with disabilities. And it is right today 

for the State to tell businesses that they may not—

may not—enact policies that unfairly and disparately 

discriminate against our minority populations. 

House Session, FLA. HOUSE OF REPRESENTATIVES, at 2:28:28–

2:29:37 (Apr. 28, 2021), https://www.flsenate.gov/media/VideoPlayer?EventID=1_2usodgs8-202104281030&Redirect=true. Representative Leek also explained that the “bill protects the rights of 

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a material portion of our minority population who remains vaccine 

hesitant.” Id. at 2:30:45–2:30:56. Representative Mike Beltran explained that news reports confirmed the existence of discrimination 

against people based on vaccination status and concluded that “we 

have people discriminating against you if you’re not vaccinated. 

Why are we doing this?” Id. at 2:24:25–2:24:59.

In the Senate, Senator Danny Burgess reasoned along similar lines. He explained that the Legislature was “making sure 

there’s not a chilling effect for those who . . . have religious reasons 

for not getting [the vaccine] or health reasons for not wanting to 

get it.” Senate Session, FLA. SENATE, at 6:24:00–6:24:10, (Apr. 29, 

2021), https://www.flsenate.gov/media/VideoPlayer?EventID=1_3wpkrnbb-202104291000&Redirect=true. He added that 

the “vaccine is not mandated and we have exemptions already 

when it comes to religious beliefs, so I think that we’re just in line 

with . . . those policies.” Id. at 6:24:08–6:24:19. And when asked 

“about . . . cruise ship[s]” specifically, Senator Burgess explained 

that “we’re making a public policy call here in Florida that . . . if 

you operate a business here in Florida you cannot require one to 

have a vaccine . . . to gain entry.” Id. at 6:30:36–6:30:57.

The cruise industry did not uniformly adopt a vaccination 

requirement for all passengers. Carnival Cruise Line, Royal Caribbean International, Celebrity Cruises, and MSC Cruises each “allowed at least some unvaccinated passengers to sail, although the 

policy regarding the number of unvaccinated passengers permitted 

to sail on each ship varies by company.” Some of these cruise lines 

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“required vessels to sail with at least 95 percent of their passengers 

fully vaccinated” and required “[v]accinated passengers” to provide 

proof of their vaccination status at the terminal. “Other companies, 

such as MSC, have not required ships to sail with a set percentage 

of vaccinated guests.” Norwegian took a more restrictive approach 

that would exclude all unvaccinated persons from their cruises. Indeed, Norwegian “promised its passengers 100% vaccinated cruises 

before [the statute] was enacted on May 3, 2021, and before it took 

effect on July 1, 2021.” (Emphasis added.) 

Norwegian and several of its wholly owned subsidiaries 

sued the Surgeon General of Florida in his official capacity and 

moved for “[p]reliminary and permanent injunctive relief preventing [the Surgeon General] from enforcing Florida Statute 

§ 381.00316 against [Norwegian], including any subsidiaries, operators or agents” and a “declaration that [the statute] is unlawful as 

applied to” Norwegian. Norwegian complained that “[w]hile [it] 

[intended to] require documentation confirming that its passengers 

have been vaccinated,” the State “enacted a law . . . that expressly 

prohibits [Norwegian] from requiring such documentation.” Norwegian asserted that the statute “blocks communications between 

a business and its customers . . . in violation of the First Amendment” and “profoundly disrupts the proper flow of interstate and 

international commerce without advancing any substantial state 

interest . . . in violation of the Dormant Commerce Clause.” 

To support its claims, Norwegian alleged that its ships “sail 

to interstate and foreign ports” and that “[m]any such ports require 

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proof of vaccination to enter, proof of vaccination to enter without 

a mandatory quarantine, or proof of vaccination to enter without 

testing.” Norwegian “scheduled several upcoming voyages to foreign ports that require proof of vaccination to enter without testing, including Belize, Bahamas, British Virgin Islands, and Honduras.” (Emphasis added.) “As such, [Norwegian] . . . planned cruises 

requiring proof that 100% of passengers and crew have been vaccinated against COVID-19.” Norwegian alleged that it “cannot verify its passengers’ COVID-19 vaccination status unless it can require passengers to show documentation certifying that they are 

fully vaccinated” because “[t]here is no adequate substitute for documentary proof when it comes to confirming vaccination status.” 

Because “the only way for [Norwegian] to require vaccine documentation . . . would be by eschewing operations in Florida,” Norwegian alleged that its “operations will be impaired and it will lose 

substantial revenue.” It alleged that “Florida’s [statute] threatens to 

disrupt and even shut down the interstate and foreign cruise operations of [Norwegian].” And the statute allegedly burdens Norwegian’s speech because it “restricts the transmission of information 

based on its content, as it expressly prohibits transmission only of 

documentation ‘certifying COVID-19 vaccination or postinfection 

recovery.’” (Quoting FLA. STAT. ANN. § 381.00316(1).)

In an affidavit Norwegian filed in the district court, Dr. Stephen Ostroff explained that “[r]equiring that all passengers and 

crew be fully vaccinated is the single best way to guard against 

COVID-19 transmission on cruise ships.” He added that “cruise 

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lines [cannot] effectively implement passenger and crew vaccination requirements” without “an adequate way to verify vaccination 

status” because “it is not uncommon for individuals to attempt to 

evade public health screening protocols.” 

Norwegian’s Chief Executive Officer, Frank J. Del Rio, explained in an affidavit that “80% of cruise passengers would prefer 

fully vaccinated voyages” and that “[t]he maintenance of consumer 

confidence and goodwill is essential for sustainable business success in the cruise industry.” He also explained that “requiring full 

vaccination for 100% of passengers and crew is consistent with the 

vaccination protocols required by many foreign ports where [Norwegian] ships are scheduled to visit.” He reported that “[n]o other 

jurisdiction that [Norwegian] operates in around the world prohibits documenting passengers’ vaccination status as Florida now 

does.” And he attested that “[t]he loss of revenue caused by the 

[statute] in calendar year 2021 could exceed $100 million and could 

also result in a loss or diminishment of employment for [Norwegian] employees in South Florida.” 

Norwegian moved for a preliminary injunction, which the 

district court granted. The district court enjoined the Surgeon General “from enforcing [s]ection 381.00316 against [Norwegian] pending resolution of the merits of this case.” It “f[ound] that [Norwegian] [was] entitled to a preliminary injunction because [it] ha[d]

shown: (1) a substantial likelihood of success on the merits of [its] 

First Amendment and [D]ormant Commerce Clause claims; (2) 

that [it] would suffer irreparable injury absent an injunction; and 

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(3) that the equities and public interest weigh in favor of an injunction.” On the First Amendment claim, the district court ruled that 

section 381.00316 is a content-based restriction; it rejected the argument that section 381.00316 is an economic regulation of conduct that only incidentally burdens speech; and it held that the statute fails to survive heightened scrutiny. On the Dormant Commerce Clause claim, it ruled that section 381.00316 “does not directly regulate, or affirmatively discriminate against, interstate 

commerce” and that the “[s]tatute is applicable to both out-of-state 

and in-state business entities that operate in the State of Florida.” 

The district court concluded—and the parties agreed—that the 

statute “does not implicate concerns about local economic protectionism raised by courts that” enjoin statutes that do. applied the 

balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). It 

ruled that the Surgeon General “failed to articulate how the goals 

of medical privacy and antidiscrimination are fulfilled by the express terms of the [s]tatute.” And it ruled that the burdens on interstate commerce are likely to be clearly excessive in relation to the 

putative local benefits of the statute. 

After the Surgeon General filed this appeal, Norwegian identified two destinations that had since required all passengers aged 

12 and older to be fully vaccinated for ships to enter port—the Bahamas and the United States Virgin Islands. But before oral argument, the Surgeon General notified this Court that the governments of those destinations now allow unvaccinated persons to enter with negative COVID-19 tests. See Emergency Powers (CovidUSCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 12 of 123
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19 Pandemic) (Management and Recovery) (No.2) (Amendment) 

(No. 8) Order, 2021, at 2–3, PRIME MINISTER OF THE BAHAMAS (Aug. 

19, 2021) (specifying that the order is “[e]ffective the 3rd day of September, 2021 until the 1st day of November, 2021”); Travel Protocols, THE BAHAMAS (Apr. 2, 2022), https://travel.gov.bs/file/travelProtocols; Thirty-Fifth Supplemental Executive Order and Proclamation by the Governor of the United States Virgin Islands § 4, 

at 7–8, OFFICE OF THE GOVERNOR (Feb. 28, 2022). 

II. STANDARD OF REVIEW 

“We review a district court’s grant of a preliminary injunction for abuse of discretion.” Fed. Trade Comm’n v. On Point Cap. 

Partners LLC, 17 F.4th 1066, 1077 (11th Cir. 2021). “We review the 

preliminary injunction’s underlying legal conclusions de novo and 

its findings of fact for clear error.” Id. at 1078.

III. DISCUSSION 

“A preliminary injunction is an extraordinary remedy never 

awarded as of right,” id. at 1077 (internal quotation marks omitted),

and the party seeking that remedy must satisfy a four-part test, 

Otto v. City of Boca Raton, 981 F.3d 854, 860 (11th Cir. 2020). First, 

it must prove that “it has a substantial likelihood of success on the 

merits.” Id. (internal quotation marks omitted). Second, it must 

prove that it will suffer irreparable injury unless the injunction issues. Id. Third, it must prove that the injury that threatens it “outweighs whatever damage the proposed injunction may cause the 

opposing party.” Id. (internal quotation marks omitted). Finally, it 

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must prove that “the injunction would not be adverse to the public 

interest” if issued. Id. (internal quotation marks omitted).

We divide our discussion in two parts. First, we explain that 

Norwegian is unlikely to succeed on the merits of its First Amendment claim. Second, we explain that Norwegian is unlikely to succeed on the merits of its Dormant Commerce Clause claim. 

A. Norwegian Is Unlikely to Succeed on the Merits of Its First 

Amendment Claim.

“The First Amendment, applicable to the States through the 

Fourteenth Amendment,” Reed v. Town of Gilbert, 576 U.S. 155, 

163 (2015), provides that governments “shall make no law 

. . . abridging the freedom of speech,” U.S. CONST. amend. I. That 

command generally removes from governments the “power to restrict expression because of its message, its ideas, its subject matter, 

or its content.” Reed, 576 U.S. at 163 (internal quotation marks 

omitted). Statutes “that target speech based on its communicative 

content” are “presumptively unconstitutional and may be justified 

only if the government proves that they are narrowly tailored to 

serve compelling state interests.” Id. And “regulation[s] of speech 

[are] content based if [they] appl[y] to particular speech because of 

the topic discussed or the idea or message expressed.” Id.

The parties disagree about whether section 381.00316(1) is a 

content-based restriction of speech subject to heightened scrutiny. 

The Surgeon General argues that the statute is not subject to the 

First Amendment because it is a regulation of economic conduct

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that only incidentally burdens speech. Norwegian argues that the 

statute is a content-based restriction of speech that cannot survive 

strict or intermediate scrutiny. 

We agree with the Surgeon General. “In cases at the margin, 

it may sometimes be difficult to figure out what constitutes speech 

protected by the First Amendment. But this is not a hard case in 

that respect.” See Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 

1307 (11th Cir. 2017) (en banc).

Statutes that regulate non-expressive conduct do “not implicate the First Amendment at all” even if they incidentally burden 

speech. See Otto, 981 F.3d at 861, 865. “[R]estrictions on protected 

expression are distinct from restrictions on economic activity or, 

more generally, on nonexpressive conduct.” Sorrell v. IMS Health 

Inc., 564 U.S. 552, 567 (2011). “[T]he First Amendment does not 

prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Id. The Supreme Court has long 

acknowledged that making “a course of conduct illegal” is not “an 

abridgment of freedom of speech . . . merely because the conduct 

was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Ohralik v. Ohio State 

Bar Ass’n, 436 U.S. 447, 456 (1978) (quoting Giboney v. Empire 

Storage & Ice Co., 336 U.S. 490, 502 (1949)). It has affirmed that 

“the State does not lose its power to regulate commercial activity 

deemed harmful to the public whenever speech is a component of 

the activity.” Id. And it has rejected the contention “that the constitutional freedom for speech . . . extends its immunity to speech 

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or writing used as an integral part of conduct in violation of a valid 

criminal statute.” Giboney, 336 U.S. at 498. That “expansive interpretation” of the First Amendment “would make it practically impossible ever to enforce laws against agreements in restraint of 

trade as well as many other agreements and conspiracies deemed 

injurious to society.” Id. at 502. So, if section 381.00316 regulates

non-expressive economic conduct that only incidentally burdens 

speech, then it does “not implicate the First Amendment at all.” See 

Otto, 981 F.3d at 861, 865.

Anti-discrimination statutes ordinarily regulate non-expressive conduct. The “focal point” for their prohibitions is “on the act

of discriminating against individuals in the provision of publicly 

available goods, privileges, and services on the proscribed 

grounds.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of 

Bos., Inc., 515 U.S. 557, 572 (1995) (emphasis added). Enacting antidiscrimination statutes is “well within the State’s usual power . . .

when a legislature has reason to believe that a given group is the 

target of discrimination, and . . . do[es] not, as a general matter, violate the First or Fourteenth Amendments.” Id. For that reason, 

“philosophical objections” do not generally “allow business owners 

and other actors in the economy and in society to deny protected 

persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Masterpiece 

Cakeshop, Ltd. v. Colo. Civ. Rts. Comm’n, 138 S. Ct. 1719, 1727 

(2018). “Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation 

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merely because they express a discriminatory idea or philosophy.” 

R.A.V. v. City of St. Paul, 505 U.S. 377, 390 (1992). And the Supreme Court has repeatedly applied these principles in rejecting 

First Amendment challenges to anti-discrimination statutes. See, 

e.g., Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993); Hishon v. King 

& Spalding, 467 U.S. 69, 78 (1984) (rejecting the argument “that application of Title VII . . . would infringe constitutional rights of expression” because “invidious private discrimination . . . has never 

been accorded affirmative constitutional protections” (alteration 

adopted) (internal quotation marks omitted)); Runyon v. McCrary, 

427 U.S. 160, 176 (1976) (explaining that although “parents have a 

First Amendment right to send their children to educational institutions that promote the belief that racial segregation is desirable,

. . . it does not follow that the practice of excluding racial minorities 

from such institutions is also protected”). 

Section 381.00316 is an anti-discrimination statute that regulates non-expressive economic conduct. The statute prohibits 

“any business operating in” Florida from “requir[ing] patrons or 

customers to provide any documentation certifying COVID-19 

vaccination or postinfection recovery to gain access to, entry upon, 

or service from the business operations in [Florida].” FLA. STAT.

ANN. § 381.00316(1). A “requirement” is “[t]he act of establishing 

something as a need or necessity.” See Requirement, BLACK’S LAW 

DICTIONARY (11th ed. 2019) (emphasis added). The plain meaning 

of the statute prohibits the same action as any run-of-the-mill antidiscrimination statute: closing the business’s doors to a class of 

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persons based “on . . . proscribed grounds.” See Hurley, 515 U.S. at 

572. A business violates section 381.00316 when it commits the 

“act,” see id., of “deny[ing]” patrons or customers “access to goods 

and services,” Masterpiece, 138 S. Ct. at 1727, based on their failure 

to prove that they are not members of the protected class. See FLA.

STAT.ANN. § 381.00316(1). It prohibits businesses from discriminating by “treat[ing] differently” vaccinated and unvaccinated persons

based on a condition that members of only one class can satisfy. 

See Wollschlaeger, 848 F.3d at 1317. And it protects conduct for 

those who either cannot or desire not to comply with the proscribed condition. See FLA. STAT. ANN. § 381.00316(1). So, section 

381.00316(1) targets “the practice of excluding [persons] from”

businesses and prohibits their exclusion. See Runyon, 427 U.S. at 

176.

Section 381.00316(1) does “not implicate the First Amendment at all.” See Otto, 981 F.3d at 861. Section 381.00316(1) 

“appl[ies] to non-expressive conduct such as failing to,” see Wollschlaeger, 848 F.3d at 1317, grant persons who are unwilling or unable to verify their vaccination status “access to, entry upon, or service from the business operations,” FLA. STAT.ANN. § 381.00316(1).

And when the statute regulates non-expressive conduct in that

way, “there is no First Amendment problem.” Wollschlaeger, 848 

F.3d at 1317.

Norwegian argues that the statute regulates communications between businesses and customers. It argues that “Florida’s 

[b]an restricts the free flow of vital, potentially life-saving 

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information by targeting only one type of written information exchange.” It adopts the view of the district court that section 

381.00316 “regulates speech because it restricts the free flow of information by rendering the exchange permissible in some circumstances but impermissible in others.” And it maintains that “[t]he 

[b]an is triggered by a specific mode (documentary) of conveying 

specific information (vaccination against COVID-19) between a 

specific speaker and audience (customer to business)” because 

“[o]nly if a business first engages in this communicative exchange 

can its ensuing conduct (restricting access) violate the [b]an.” We 

disagree.

Section 381.00316(1) limits no communications between 

customers and businesses. Norwegian concedes that the statute 

does not prohibit businesses from asking customers about their 

vaccination status. See Greater Phila. Chamber of Com. v. City of 

Phila., 949 F.3d 116, 135–36 (3d Cir. 2020) (holding that a provision 

“clearly regulate[d] speech because it prevent[ed] employers from 

asking potential applicants specific questions” about wage history

but holding that a provision that prohibits “the act of relying on 

wage history to set a salary” regulated conduct). And the statute 

does not prohibit customers from responding—orally or in writing—with that information and proof. Cf. Wollschlaeger, 848 F.3d 

at 1307 (holding that provisions “trigger[ed] First Amendment scrutiny” because they “expressly limit[ed] the ability of certain speakers—doctors and medical professionals—to write and speak about 

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a certain topic—the ownership of firearms—and thereby restrict[ed] their ability to communicate and/or convey a message”).

What businesses may not do is close their doors to customers who decline to present private medical documentation. See

FLA. STAT. ANN. 381.00316(1). The act of closing the doors to those

persons is prohibited, not any communicative exchange between 

them and the businesses that would like to discriminate against 

them “on the proscribed grounds.” See Hurley, 515 U.S. at 572. 

Section 381.00316(1) is distinguishable from “speaker-focused and 

content-based restrictions on speech” that “limit a category of people—[such as businesses]—from communicating a particular message.” Cf. Otto, 981 F.3d at 863 (internal quotation marks omitted)

(holding that regulations of therapists were speaker-focused and 

content-based restrictions because they expressly restricted therapists “from communicating a particular message”).

To be sure, Norwegian correctly asserts that the statute does 

not prohibit requiring oral verification of vaccination status, see

FLA. STAT. ANN. § 381.00316(1), but that fact means only that the 

statute does not prohibit all conceivable discriminatory conduct 

against unvaccinated and privacy-concerned persons. Likewise, a 

statute that prohibits “any business” from “requir[ing] patrons or 

customers to provide any documentation certifying” that they are 

American born “to gain access to, entry upon, or service from the 

business,” see id., would not prohibit all discriminatory conduct 

against foreigners, but it would proscribe a subset of that kind of 

non-expressive conduct. Cf., e.g., 42 U.S.C. § 2000e-2(a), (a)(1) (“It 

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shall be an unlawful employment practice for an employer . . . to 

fail or refuse to hire or to discharge any individual . . . because of 

such individual’s . . . national origin.”); 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of . . . national origin, 

be excluded from participation in, be denied the benefits of, or be 

subjected to discrimination under any program or activity receiving Federal financial assistance.”). Different statutes can target different instances of the same kind of evil. And governments need 

not eliminate all discrimination whenever they wish to eliminate 

any. See Katzenbach v. Morgan, 384 U.S. 641, 657 (1966) (“[I]n deciding the constitutional propriety of the limitations in . . . a[n antidiscrimination] measure we are guided by the familiar principles 

that a statute is not invalid under the Constitution because it might 

have gone farther than it did, that a legislature need not strike at all 

evils at the same time, and that reform may take one step at a time, 

addressing itself to the phase of the problem which seems most 

acute to the legislative mind.” (citations and internal quotation 

marks omitted)).

The only speech that section 381.00316(1) burdens is incidental to its direct prohibition of the discriminatory conduct of excluding persons the statute protects. “We recognize . . . the longstanding principle that valid regulations of conduct might sweep 

up some speech at their margins.” Otto, 981 F.3d at 865. Although 

businesses may request documentary proof of vaccination status, 

they cannot use words to exclude people who decline that request—“in that case, sir, you may not enter.” But burdens to that 

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kind of speech are precisely those that do not implicate the First 

Amendment when the statute is “directed at commerce or conduct.” Sorrell, 564 U.S. at 567. “That is why a ban on race-based 

hiring may require employers to remove ‘White Applicants Only’ 

signs.” Id. (internal quotation marks omitted). Norwegian likewise

cannot put up a sign that says, “No Vaccine Passport, No Entry.” 

That sign—analogous in this context to “a supervisor’s statement 

‘sleep with me or you’re fired’[—]may be proscribed not on the 

ground of any expressive idea that the statement communicates, 

but rather because it facilitates the threat of discriminatory conduct.” See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 208 (3d 

Cir. 2001) (Alito, J.). “Despite the purely verbal [or written] quality 

of such a threat, it surely is no more ‘speech’ for First Amendment

purposes than the robber’s demand ‘your money or your life.’” See 

id. 

To be sure, anti-discrimination statutes can sometimes offend the First Amendment. See Wollschlaeger, 848 F.3d at 1317. 

Anti-discrimination statutes offend the First Amendment when 

they “declar[e] [another’s] speech . . . to be the public accommodation” to which protected persons must be given access for their 

own expression. Hurley, 515 U.S. at 573 (holding that “state courts’ 

application of [an anti-discrimination] statute had the effect of declaring” a parade that had an “expressive character . . . to be [a] public accommodation”). And they can also give offense if the regulated conduct is, as Norwegian argues here, expressive. 

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Section 381.00316(1) does not burden speech or expressive 

conduct in those forbidden ways. The statute does not “requir[e] 

[Norwegian] to alter the expressive content of” its speech in the 

way that adding an unwanted message to a parade would do. See 

id. at 572–73. And the Supreme Court has “extended First Amendment protection only to conduct that is inherently expressive.” 

Rumsfeld v. F. for Acad. & Institutional Rts., Inc. (FAIR), 547 U.S. 

47, 66 (2006) (emphasis added). “An observer who sees” a patron 

board cruise A instead of B “has no way of knowing whether” B “is 

expressing its disapproval of the” unvaccinated passengers, “all 

[B’s] rooms are full, or the [patron] decided for reasons of their own 

that they would rather” go on A. See id. “The expressive component” of Norwegian’s “actions is not created by the conduct itself 

but by the speech that accompanies it,” and “[t]he fact that such 

explanatory speech is necessary is strong evidence that the conduct 

at issue here”—denying service to people—“is not so inherently expressive that it warrants protection.” See id.; see also id. (“If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into 

‘speech’ simply by talking about it.”). The “objections” Norwegian 

has and can publicly announce consistent with section 381.00316(1) 

“do not allow [it] . . . to deny protected persons equal access to 

goods and services.” Masterpiece, 138 S. Ct. at 1727. And its cruiseline “services lack the expressive quality of a parade, a newsletter, 

or the editorial page of a newspaper,” see FAIR, 547 U.S. at 64, even 

if Norwegian “intends” by those services “to express an idea,” see

United States v. O’Brien, 391 U.S. 367, 376 (1968).

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Supreme Court precedent confirms our conclusion that section 381.00316(1) regulates economic conduct. In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the Supreme 

Court considered a statute that “prevents an institution from receiving certain federal funding if it prohibits military recruiters 

from gaining access to campuses, or access to students on campuses, for purposes of military recruiting in a manner that is at least 

equal in quality and scope” to other employers. 547 U.S. at 54 (alteration adopted) (internal quotation marks omitted). Law schools 

that sought to exclude for political reasons military recruiters from 

their campuses argued that the statute violates the First Amendment. Id. at 52–53. The Supreme Court rejected that contention. 

Like section 381.00316(1) in relation to businesses, the Supreme 

Court explained that the statute in FAIR “neither limits what law 

schools may say nor requires them to say anything.” See id. at 60. 

The Court held that the statute in FAIR “regulates conduct, not 

speech” because “[i]t affects what law schools must do—afford 

equal access to military recruiters—not what they may or may not 

say.” Id. And it likened the statute to permissible anti-discrimination statutes that regulate conduct. Id. at 62. The same reasoning 

establishes that section 381.00316(1) does not implicate the First 

Amendment: it affects what Norwegian “must do—afford equal access to” those who cannot or do not disclose their own private 

medical documentation—“not what [Norwegian] may or may not 

say.” See id. at 60.

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Our en banc decision in Wollschlaeger v. Governor also establishes that section 381.00316(1) regulates non-expressive conduct. In that decision, we considered a Florida statute that “prohibits discrimination ‘against a patient based solely’ on his or her ownership and possession of a firearm.” 848 F.3d at 1317 (quoting FLA.

STAT. ANN. § 790.338(5)). We upheld the statute because it

“appl[ies] to non-expressive conduct such as failing to return messages, charging more for the same services, declining reasonable 

appointment times, not providing test results on a timely basis, or 

delaying treatment because a patient (or a parent of a patient) owns 

firearms.” Id. And we can similarly uphold section 381.00316(1) because it regulates non-expressive conduct such as “failing to” admit 

someone who lacks vaccination documentation on board a cruise 

ship. See id.

Norwegian’s reliance on Sorrell v. IMS Health Inc., 564 U.S. 

552, and Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 

(2017), is unavailing. Both decisions involved statutes that prohibited speakers from conveying information in particular ways. And 

neither is on point because section 381.00316(1) includes no similar

prohibition.

In Sorrell, the Supreme Court invalidated a state statute that 

prohibited “pharmacies, health insurers, and similar entities from 

selling prescriber-identifying information . . . to pharmaceutical 

marketers”; that prohibited those businesses “from disclosing” the 

information “for marketing”; and that “bar[red] pharmaceutical 

manufacturers and detailers from using the information for 

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marketing.” 564 U.S. at 563. The Court reasoned that the statute 

“prohibits pharmaceutical manufacturers from using the information for . . . marketing, that is, speech with a particular content.” 

Id. at 564. It explained that the statute prohibits the sale of that information to recipients who will use it for marketing, but not to 

“those who wish to engage in certain educational communications.” Id. (internal quotation marks omitted). And the Supreme 

Court confronted “a case in which the government [had] prohibit[ed] a speaker from conveying information that the speaker already possesse[d],” a prohibition that “implicated” “[a]n individual’s right to speak.” Id. at 568 (emphasis added) (internal quotation 

marks omitted). 

Section 381.00316(1), by contrast, does not prohibit the conveyance of any information in either direction, and it in no way 

subjects to any restraints the communication of any information 

already in Norwegian’s or its customers’ possession. Sorrell is inapposite.

Norwegian’s reliance on Expressions Hair Design is similarly unavailing. In that decision, the Supreme Court held that a 

statute that prohibited merchants from imposing a surcharge on 

credit card users but did not prohibit them from offering discounts 

for the use of cash regulated speech, not merely conduct. See 137 

S. Ct. at 1146–47. The Court explained that “typical price regulation[s]” regulate the “seller’s conduct” and only “indirectly dictate 

the content of [his] speech.” Id. at 1150–51. If, for example, the price 

regulation declares that a sandwich shop must charge $10 for 

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sandwiches, the regulation would regulate “the amount that a 

store could collect,” and would incidentally involve communicating to customers that the price for a sandwich is $10. Id. But the 

ban on surcharges told “merchants nothing about the amount they 

[were] allowed to collect from a cash or credit card payer.” Id. at 

1151. Instead, the ban “regulate[d] . . . how sellers [could] communicate their prices.” Id. A seller could communicate that the 

price is $10.30, with a $0.30 cash discount, but could not communicate that the price is $10.00, plus $0.30 for credit card users. Id. “In 

regulating the communication of prices rather than prices themselves, [the statute] regulate[d] speech.” Id. Section 381.00316(1), 

by contrast, does not tell businesses how they may describe permissible conduct to customers. Cf. Dana’s R.R. Supply v. Att’y 

Gen., 807 F.3d 1235, 1245 (11th Cir. 2015) (“Calling [a Florida statute] a ‘no-surcharge law,’ then, is something of a misnomer. The 

statute targets expression alone. More accurately, it should be a 

‘surcharges-are-fine-just-don’t-call-them-that law.’”).

We conclude that section 381.00316(1) does “not implicate 

the First Amendment at all,” see Otto, 981 F.3d at 861, because it 

regulates non-expressive economic conduct. And “run-of-the-mill 

economic regulations [are] assessed under rational-basis review.” 

Dana’s R.R. Supply, 807 F.3d at 1251. “It is enough that there is an 

evil at hand for correction, and that it might be thought that the 

particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955). Section 381.00316(1) bears a rational relationship to the State’s 

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substantial interests in protecting its residents from discrimination 

and burdens to privacy because it prohibits businesses from excluding people who cannot or wish not to produce private medical documentation.

B. Norwegian Is Unlikely to Succeed on the Merits of Its Dormant 

Commerce Clause Claim.

The Commerce Clause provides that “Congress shall have 

Power . . . [t]o regulate Commerce with foreign Nations, and 

among the several States.” U.S. CONST. art. I, § 8, cl. 3. Although 

this clause expressly concerns Congress’s power, the Supreme 

Court has discerned a dormant or negative aspect that limits the 

power of the “several States,” id., to burden foreign or interstate 

commerce. “The Dormant Commerce Clause prohibits regulatory 

measures designed to benefit in-state economic interests by burdening out-of-state competitors.” Island Silver & Spice, Inc. v. Islamorada, 542 F.3d 844, 846 (11th Cir. 2008) (internal quotation 

marks omitted). And there are only two ways a statute can violate 

the Dormant Commerce Clause: “by discriminating against interstate commerce or . . . by unduly burdening interstate commerce.” 

Fla. Transp. Servs., Inc. v. Miami-Dade Cnty., 703 F.3d 1230, 1244 

(11th Cir. 2012).

A regulation violates the Dormant Commerce Clause only 

if it fails either one of two tests. See Islamorada, 542 F.3d at 846.

First, protectionist regulations that directly discriminate against interstate commerce, or that have “the effect of favoring in-state economic interests,” are invalid unless they “advance a legitimate local 

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purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” Id. (alteration adopted) (internal quotation marks omitted). These regulations are unconstitutional if the 

State cannot satisfy that narrow exception. Fla. Transp. Servs., Inc., 

703 F.3d at 1244. Second, “if the law or regulation advances a legitimate local interest and has only indirect effects on interstate commerce, we apply the balancing test from Pike.” Id. at 1244 (internal 

quotation marks omitted).

The district court correctly ruled that section 381.00316(1) 

neither directly nor indirectly discriminates against interstate commerce. Accord Dissenting Op. at 13 n.20. Indeed, the statute expressly regulates all and only “business[es] operating in [Florida]”—

both local and out-of-state—for their “business operations in [Florida].” See FLA. STAT. ANN. § 381.00316(1). And the parties agree 

that the statute survives this test. 

The sole question then is whether section 381.00316(1) satisfies Pike’s balancing test: “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects 

on interstate commerce are only incidental, it will be upheld unless 

the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike, 397 U.S. at 142. Under this 

test, we must first determine whether “a legitimate local purpose” 

for section 381.00316 exists. See id. If the State has a legitimate local 

purpose in enacting section 381.00316(1), we weigh the local benefits of enforcing the statute against the burdens imposed on interstate commerce. Id. Only if the burdens on interstate commerce 

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clearly exceed the local benefits of section 381.00316 will we invalidate that statute. See Fla. Transp. Servs., 703 F.3d at 1244. “And 

the extent of the burden that will be tolerated will of course depend 

on the nature of the local interest involved, and on whether it could 

be promoted as well with a lesser impact on interstate activities.” 

Pike, 397 U.S. at 142 (emphasis added).

The Surgeon General asserts two state interests. First, the 

Surgeon General asserts that Florida has an interest in ensuring that 

businesses operating within the state do not discriminate against its 

citizens for failure to provide documentation of vaccination status. 

Second, the Surgeon General asserts that Florida has an interest in 

protecting the medical privacy of its residents. 

Protecting residents from economic discrimination is a substantial interest. That interest derives from the State’s traditional 

“police powers to protect” the well-being of its residents. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996). “The States traditionally have had great latitude under their police powers to legislate 

as to the protection of the lives, limbs, health, comfort, and quiet 

of all persons”—latitude that includes regulating economic relationships. See Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 

756 (1985) (internal quotation marks omitted); see also id. (explaining that “States possess broad authority under their police powers 

to regulate the employment relationship” (internal quotation 

marks omitted)). “[T]he regulation of health and safety matters is 

primarily, and historically, a matter of local concern.” Hillsborough 

Cnty. v. Automated Med. Lab’ys, Inc., 471 U.S. 707, 719 (1985). The 

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Supreme Court has “long recognized that a State’s interests in the 

health and well-being of its residents extend beyond mere physical 

interests to economic and commercial interests.” See Alfred L. 

Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 609 

(1982); see also id. at 608 (acknowledging “the State’s interest in the 

removal of barriers to the participation by its residents in the free 

flow of interstate commerce”). And the Supreme Court has also 

“recognize[d] a similar state interest in securing residents from the 

harmful effects of discrimination,” “a substantial interest” that consists in “assuring its residents that it will act to protect them from” 

that discrimination. See id. at 609; Wollschlaeger, 848 F.3d at 1314

(explaining that the State “has a substantial interest in making sure 

that its residents are able to obtain health care without discrimination”). So protecting residents from being excluded from access to 

goods and services by businesses that operate within the State is a 

substantial interest weightier than a “legitimate local” one. See

Pike, 397 U.S. at 142.

It is true, as the dissent states, that deference is not warranted whenever a state asserts that it is promoting its economy or 

protecting a domestic industry. Dissenting Op. at 24. But this statute directly protects a class of individuals from being ostracized. 

Like any antidiscrimination statute, it protects these individuals by 

preventing businesses from excluding them from the market. See 

Alfred L. Snapp & Son, Inc., 458 U.S. at 609; Wollschlaeger, 848 

F.3d at 1314. The statute prevents real harm, not some abstract 

economic impact. Without this statute, unvaccinated Floridians 

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32 Opinion of the Court 21-12729

risk being turned away from the businesses that make their lives 

possible—grocery stores, restaurants, fitness gyms, clothing stores, 

barber shops and hair salons, and even pharmacies. After all, the 

statute covers “any business operating in [Florida],” not just luxury 

ocean liners. FLA. STAT. ANN. § 381.00316(1). The dissent’s attempt 

to artificially limit the State’s interest to the protection of cruise 

ship passengers is, therefore, not persuasive. Dissenting Op. at 1

n.1. Florida’s interest in protecting the unvaccinated from discrimination—not generally promoting its economy—is legitimate.

In similar fashion, the dissent relies on a footnote in the Supreme Court’s decision in Head v. New Mexico Bd. of Exam’rs in 

Optometry, 374 U.S. 424, 428 n.4 (1963), to argue that the state’s 

interest is insubstantial because economic well-being has an attenuated connection to public health. Dissenting Op. at 25. But Head 

supports our position. For one, Head upheld the statute at issue: a 

New Mexico law that prevented the publication of price advertising of eyeglasses by a local newspaper and radio station. 374 U.S.

at 429. For another, in doing so, Head recognized the “legitimacy 

of state legislation” to protect public health. Id. at 428. In reaching 

this conclusion, Head acknowledged that “[t]he case is not one . . . 

in which the State seeks to justify a statute as a health measure on 

the attenuated theory that the economic well-being of a profession 

or industry will assure better performance in the public interest.” 

Id. at 428 n.4. So too here. The Florida statute was not designed to 

protect a discrete profession or industry. Instead, the statute serves

the state’s legitimate interest in prohibiting businesses from 

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excluding its citizens from the interstate market. The Supreme 

Court has already recognized this interest is a substantial one, Barez, 458 U.S. at 609, and Head says nothing to the contrary. 

The state interest in protecting the privacy of residents is 

also substantial. “We recognize that protection of individual privacy is a substantial government interest.” Wollschlaeger, 848 F.3d 

at 1314. Supreme Court “precedents . . . leave no room for doubt 

that ‘the protection of potential clients’ privacy is a substantial [and 

traditional] state interest.’” See Florida Bar v. Went For It, Inc., 515 

U.S. 618, 625 (1995) (quoting Edenfield v. Fane, 507 U.S. 761, 769 

(1993)); cf. also Cal. Democratic Party v. Jones, 530 U.S. 567, 585 

(2000) (explaining that “the State’s interest in assuring the privacy 

of ” party affiliation is not “a ‘compelling’ one” because that “specific privacy interest . . . is not [like] the confidentiality of medical 

records or personal finances”). 

Taken together, the two state interests are plainly weighty. 

That is, Florida has a substantial interest in protecting its residents 

from economic ostracism based on their hesitancy to divulge to 

businesses private medical information. And that weighty state interest is dispositive here.

Because Florida’s substantial interests are in matters traditionally of state concern, the burdens section 381.00316(1) imposes 

on interstate commerce do not clearly exceed its putative local benefits. The Supreme Court has explained “that a State’s power to 

regulate commerce is never greater than in matters traditionally of 

local concern.” Kassel v. Consol. Freightways Corp., 450 U.S. 662, 

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670 (1981) (plurality opinion). One “example” is “regulations that 

touch upon safety,” regulations that “the Court has been most reluctant to invalidate.” Id. (internal quotation marks omitted). And 

“if safety justifications are not illusory, the Court will not secondguess legislative judgment about their importance in comparison 

with related burdens on interstate commerce.” Id. (internal quotation marks omitted). The rationale for that strong deference to legislative judgments applies to other “example[s]” of “a State’s power 

to regulate commerce . . . in matters traditionally of local concern,” 

id., such as regulations that touch upon the health and economic 

well-being of residents, Barez, 458 U.S. at 609; Hillsborough, 471 

U.S. at 719. To be sure, “the incantation of a purpose to promote 

the public health or safety does not insulate a state law from Commerce Clause attack[s]” if “[r]egulations designed for that salutary 

purpose nevertheless . . . further the purpose . . . marginally,” 

while “interfer[ing] with commerce . . . substantially.” Kassel, 450 

U.S. at 670. But if “[w]e cannot say that the Florida legislature’s 

[traditional] justification[s] w[ere] merely illusory” in that way, we 

also cannot “second guess the legislature’s judgment as to the relative importance of [those] justifications versus any burdens imposed on interstate commerce.” Locke v. Shore, 634 F.3d 1185, 

1194–95 (11th Cir. 2011).

The dissent attempts to evade the fact that section 

381.00316(1) is a traditional well-being regulation by implicitly relying on the false premise that such a regulation would have to promote residents’ physical health and safety. The dissent asserts that 

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the statute “cannot seriously be described as a” safety regulation, 

Dissenting Op. at 33, but the Supreme Court has made clear that 

the traditional police power of the state includes promoting residents’ economic health and safety, Barez, 458 U.S. at 609. Florida 

is entitled to promote that interest over possible benefits to residents’ physical health and safety. And the dissent ignores the secondary health effects of economic harm of which the Legislature 

can take account. Cf. FLA. STAT. § 252.311(4) (explaining that it is 

“the intent of the Legislature to minimize the negative effects of an 

extended emergency” such as “the COVID-19 pandemic”).

The decision of the Supreme Court in Minnesota v. Clover 

Leaf Creamery Co., 449 U.S. 456 (1981), illustrates the substantial 

deference owed to state legislative judgments. In that case, “the 

Minnesota Legislature enacted a statute banning the retail sale of 

milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, 

such as paperboard milk cartons.” Id. at 458. “Proponents of the 

legislation argued that it would promote resource conservation, 

ease solid waste disposal problems, and conserve energy.” Id. at 

459. After a dairy sued seeking an injunction for violating the Equal 

Protection, Due Process, and Dormant Commerce Clauses, the 

trial court invalidated the Act on all three theories because it found 

as a fact that “the Act w[ould] not succeed in effecting the Legislature’s published policy goals.” Id. at 460. The Supreme Court of 

Minnesota affirmed “on the federal equal protection and due process grounds” based on that finding. Id. at 460–61 (internal 

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quotation marks omitted). And the Supreme Court reversed. Id. at 

461. It held that any burden to interstate commerce was “not 

clearly excessive in light of the substantial state interest in promoting conservation of energy and other natural resources and easing 

solid waste disposal problems, which [it] ha[d] already reviewed in 

the context of [its] equal protection analysis.” Id. at 473 (citing id.

at 465–70) (internal quotation marks omitted); see also id. at 470–

71 n.14; contra Dissenting Op. at 19 (faulting this opinion for citing 

the equal-protection analysis that the Supreme Court itself cited in 

its Commerce Clause analysis).

The Supreme Court made clear the great deference owed to 

legislatures when their asserted interests are substantial. “Whether 

in fact the Act will promote more environmentally desirable milk 

packaging is not the question”; the question is whether the “Legislature could rationally have decided that its ban on plastic nonreturnable milk jugs might foster greater use of environmentally desirable alternatives.” Id. at 466. The Court explained that the state 

courts’ finding “that the Act is not a sensible means of conserving 

energy” was of no moment because “it is up to legislatures, not 

courts, to decide on the wisdom and utility of legislation,” and because “the question clearly is at least debatable, the Minnesota Supreme Court erred in substituting its judgment for that of the legislature.” Id. at 469 (citation omitted) (internal quotation marks 

omitted). And importantly, “it is not the function of the courts to 

substitute their evaluation of legislative facts for that of the legislature.” Id. at 470. 

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Both Kassel v. Consolidated Freightways Corp. and Clover 

Leaf Creamery make clear that we owe strong deference to the 

Florida Legislature when it exercises its traditional police powers 

to promote traditional local interests based on justifications that are 

not illusory. And the State’s justifications are not illusory if applying section 381.00316(1) “as written” would “rationally contribute 

to [the State’s] purported local benefits.” See Fla. Transp. Servs., 

703 F.3d at 1260. Section 381.00316(1) clears that low bar.

Our dissenting colleague argues that Clover Leaf does not 

govern because there “the Court didn’t need to engage in further 

analysis of the local-benefits side of Pike’s balance” because further 

analysis wouldn’t have made a difference to the balancing outcome 

since the law there imposed only a “minor” burden on commerce. 

Dissenting Op. at 57. But the problem with our dissenting colleague’s argument is that the Court did engage in that analysis. Clover Leaf Creamery Co., 449 U.S. at 470. In doing so, the Court offered a deferential approach toward state legislation that cannot be 

reconciled with the dissent’s analysis. The Court’s reasoning was 

echoed in Kassel, which the dissent does not suggest involved a 

“minor” burden on commerce. Indeed, Kassel addressed regulations that “impair[ed] significantly the federal interest.” 450 U.S. at 

671. And this Court has already read Kassel to command substantial deference to states without any caveat for a “minor” burden on 

commerce. Locke v. Shore, 634 F.3d 1185, 1194–95 (11th Cir. 2011)

(citing Kassel, 450 U.S. at 670)).

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Applying section 381.00316(1) as written would rationally 

contribute to the State’s purported local benefits. Those benefits 

include protecting its unvaccinated and privacy-minded residents 

from discrimination and required disclosures of private medical information—benefits that implicate traditional and substantial state 

interests. The statute rationally contributes to those interests by 

outlawing conduct by businesses that would directly discriminate 

against the unvaccinated, indirectly discriminate against minority 

communities that are disproportionately vaccine-hesitant, and require all residents—vaccinated or not—to disclose to businesses 

their private medical records.

These “point[s] w[ere] stressed by [section 381.00316(1)’s] 

proponents in the legislature,” evidencing that they were among 

“the legislature’s major concerns.” Clover Leaf Creamery Co., 449 

U.S. at 468–69. “As Representative [Leek], chief sponsor of the bill 

in the House of Representatives, explained,” see id. at 467, “the 

largest segment of our community that is vaccination-hesitant is 

our minority population,” which is why “the State [should] tell 

businesses that they may not . . . enact policies that unfairly and 

disparately discriminate against our minority populations.” House 

Session, supra, at 2:28:00–2:31:11. “Representative [Beltran] asked 

rhetorically, ‘Why [are we doing this]?’,” see Clover Leaf Creamery 

Co., 449 U.S. at 469–70, after he reported that “we have people discriminating against you if you’re not vaccinated.” House Session, 

supra, at 2:24:20–2:25:00. And the Legislature passed the bill over 

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21-12729 Opinion of the Court 39

objections about the cruise industry. See Senate Session, supra, at 

6:30:30–6:31:03.

The dissent dismisses this evidence of the Legislature’s concerns, but its reasoning is unavailing. We, of course, share the dissent’s concerns about the difficulties of discerning collective legislative intent—at least when trying to interpret a statute. Dissenting 

Op. at 39–40. But as the dissent concedes, we must look to legislative history because the Supreme Court has done so in this context. 

Id. at 39. Here, we are not using legislative history to determine 

what the statute means but to ensure that it serves a constitutional 

purpose. Legislative history is often used this way,see, e.g., Church 

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 

(1993); Wallace v. Jaffree, 472 U.S. 38, 58 (1985); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 

U.S. 252, 266 (1977), and its limited application in this context

avoids the pitfalls that Justice Scalia identified. The decision cited 

by the dissent, New England Power Co. v. New Hampshire, 455 

U.S. 331 (1982), illustrates this exact distinction. In New England 

Power, the Court did not rely upon legislative history because it 

had to discern the meaning of a law passed by Congress to decide 

whether Congress had altered the limits of state power. Id. at 341. 

New England Power did not involve the deferential task of assessing whether a state law served a constitutional purpose. Id. So 

it is inapposite.

The dissent complains that we rely “exclusively” on Representative Leek’s concern about Florida’s vaccine-hesitant minority 

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40 Opinion of the Court 21-12729

populations, Dissenting Op. at 38, while ignoring the fact that he 

was the “chief sponsor of the bill in the House of Representatives,” 

see Clover Leaf Creamery Co., 449 U.S. at 467, and the Chairman 

of the Pandemics Committee. Instead of crediting his statements, 

the dissent uncharitably contorts another of Representative Leek’s 

statements to imagine contradiction where none exists. When 

asked if any other state statute “created a new protected class that 

has not been addressed through constitutional law,” Representative Leek responded that state law has indeed created protected 

classes but that “[t]hat is not addressed in this bill.” Dissenting Op. 

at 37. That statement—that the creation of a new protected class is 

not addressed in the bill—does not mean, as the dissent asserts, that 

the bill has nothing whatever to do with protecting minority populations. Id. at 38. We decline the dissent’s invitation to assume 

legislative mendacity with no evidence of it.

The dissent also latches on to our conclusion that the state’s 

justifications were “rational” and erroneously argues that we have

applied rational basis review to the state’s arguments. Id. at 58. 

Both Kassel and Clover Leaf Creamery make clear that we must 

assess whether the state’s justifications are illusory. See Locke, 634 

F.3d at 1194–95. Only after determining whether deference is owed

do we defer to the state’s rational view. Id. Under rational basis 

review, by contrast, we do not assess whether the state’s justifications are illusory. Instead, we defer to any “reasonably conceivable” facts or purposes that could support a classification, even if 

they are not the actual rationales behind the legislation. F.C.C. v. 

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21-12729 Opinion of the Court 41

Beach Comm., Inc., 508 U.S. 307, 313 (1993). These are two different standards, and we have correctly applied the former by determining that the state’s justifications are not illusory.

The district court also second-guessed Florida’s legitimate 

justifications. Like the trial court in Clover Leaf Creamery Co., 449 

U.S. at 460, the district court found that “the record” establishes 

that section 381.00316(1) “is materially [in]effective at” advancing 

the State’s interests. It reasoned that “nothing in the statute appears 

to prohibit businesses from imposing a vaccination requirement” 

in another form, such as by demanding oral verification. See also

Dissenting Op. at 47 (explaining that the statute does not prohibit 

requiring oral verification of vaccination status). It also reasoned 

that “Florida’s failure to regulate employers, COVID-19 test results, and other medical documentation—including documentary 

proof-of-vaccination requirements for schoolchildren—conflicts 

with its purported desire to protect medical privacy.” And it concluded that “[t]he statute also does not actually protect against” discrimination against unvaccinated persons because businesses may 

still differentiate between the vaccinated and unvaccinated in implementing other practices. 

The district court erred for two reasons. First, the Supreme 

Court “has made clear that a legislature need not strike at all evils 

at the same time or in the same way.” Cloverleaf Creamery Co., 

449 U.S. at 466 (internal quotation marks omitted). Indeed, “a legislature may implement its program step by step, adopting regulations that only partially ameliorate a perceived evil and deferring 

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42 Opinion of the Court 21-12729

complete elimination of the evil to future regulations.” Id. (alterations adopted) (internal quotation marks omitted). The district 

court erred by subjecting the statute to a kind of means-end scrutiny that would require that it eliminate all conceivable discrimination and burdens of medical privacy if it wishes to eliminate any.

Second, the district court failed to give the Legislature the 

deference it was due. It is “at least debatable,” id. at 469 (internal 

quotation marks omitted), whether the direct regulation of one 

kind of discrimination would indirectly discourage the other kinds 

that the district court identified. For example, Norwegian itself 

concedes that “[t]here is no adequate substitute for documentary 

proof when it comes to confirming vaccination status” and that 

businesses like Norwegian “cannot verify [their] [customers’] 

COVID-19 vaccination status unless [they] can require passengers 

to show documentation certifying that they are fully vaccinated.” 

If so, it is rational to suppose that section 381.00316(1) would discourage businesses from engaging in what Norwegian concedes 

are exercises in futility. The Legislature “could rationally have decided,” id. at 466, to prohibit what in its view is the worst species 

of the kinds of evils it targeted and that its prohibition would discourage or eliminate other species in addition. And as for the conduct the statute directly prohibits, it is incontrovertible that it will 

succeed at reducing or eliminating that conduct. Without section 

381.00316(1), some businesses would indeed discriminate as Norwegian itself did.

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21-12729 Opinion of the Court 43

Florida is on firmer ground than Minnesota was in Clover 

Leaf Creamery Co. Although Minnesota’s putative benefits depended on the truth of empirical claims, such as whether a particular ban would conserve energy, id. at 459–60, Norwegian concedes that section 381.00316(1) would stop businesses like Norwegian from requiring vaccine documentation as a condition of service. And no amount of empirical evidence is needed to understand

that preventing compelled disclosures of medical documentation 

held by only one class of persons prevents instances of both discrimination and required disclosures of private medical documentation that would otherwise occur. Contra Dissenting Op. at 17 (relying on a decision in which the State’s asserted physical-safety interests were subject to empirical disconfirmation).

The dissent insinuates that section 381.00316(1) is not a true 

antidiscrimination statute because discrimination based on vaccination status “contrasts sharply” with the “‘invidious discrimination’ that ‘frequently occurs along ethnic lines.’” Id. at 48; see also 

id. at 33 (quoting Barez, 458 U.S. at 609). The dissent contests that 

comparison because it concludes that Norwegian does not “seek to

invidiously discriminate against unvaccinated people; it seeks to 

distinguish between vaccinated and unvaccinated people to ensure 

the health and safety of its passengers.” Id. at 45. 

We disagree. Florida clearly sought to prevent discrimination against unvaccinated people by prohibiting businesses from 

distinguishing between vaccinated and unvaccinated people. The 

dissent resists this conclusion by arguing that “[i]n practice, the 

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44 Opinion of the Court 21-12729

statute protects only unvaccinated people against discrimination.” 

Id. at 40. But the state need not protect vaccinated and unvaccinated people from discrimination equally. After all, Section 

381.00316(1) does not involve a constitutionally protected class or 

anything like selective protection of one such class over others. Cf.

City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (“[T]he 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.”). More analogous examples abound. Consider a statute that 

prohibits employers from relying on the wage history of prospective employees to set wages. See Greater Phila. Chamber of Com., 

949 F.3d at 134–36. Or consider another statute that prohibits employers from requiring prospective employees to provide wage-related information. Those statutes target wage discrimination even 

if they leave untouched other forms of discrimination against the 

poor. And they are anti-discrimination statutes even if they have 

“protect[] only [poor] people against discrimination” who have suffered from wage discrimination. See Dissenting Op. at 47.

The Supreme Court has rejected the dissent’s view that statutes must strike at all forms of discrimination if they strike at any 

to count as anti-discrimination statutes. See Katzenbach, 384 U.S. 

at 656–57 (rejecting an argument that a statute “itself works an invidious discrimination . . . by prohibiting the enforcement of [an] 

English literacy requirement only for those educated in Americanflag schools . . . in which the language of instruction was other than 

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21-12729 Opinion of the Court 45

English” because anti-discrimination statutes “need not strike at all 

evils at the same time” and “reform may take one step at a time”

(internal quotation marks omitted)). A Legislature can conclude 

that one kind of discrimination involving a non-suspect class is 

more pressing than discrimination against another non-suspect 

class. And the Florida Legislature could have sensibly supposed 

that discrimination against the unvaccinated was a serious problem 

requiring legislative interposition but that discrimination against 

the vaccinated was not. Cf. id. at 657 (explaining that anti-discrimination “reform may take one step at a time, addressing itself to the 

phase of the problem which seems most acute to the legislative 

mind” (internal quotation marks omitted)). Indeed, the evidence 

the dissent marshals suggests that the Legislature was unmoved by 

arguments that discrimination against vaccinated people was a 

problem that needed the same remedy. Dissenting Op. at 47–48

(discussing floor statements citing an apparent example of discrimination against vaccinated people). So Florida has the discretion to 

determine that the differences between vaccinated and unvaccinated people do not reasonably justify the economic ostracism to 

which the Legislature found the latter would otherwise be subjected. 

The dissent’s distinction between invidious and non-invidious discrimination is also mistaken. Dissenting Op. at 42–43. For 

one, the dissent assumes that the statute has nothing to do with 

protecting minority populations, but the statute, as Representative 

Leek stated, indirectly protects minority communities who are 

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46 Opinion of the Court 21-12729

vaccine hesitant. Supra at 7. In any event, the dissent fails to 

acknowledge that the State may recognize new protected classes 

beyond federal law. As the “double security” of a “compound republic,” states can do more than federal law to ensure “security for 

civil rights.” The Federalist No. 51 at 339 (James Madison). For example, states may protect the indigent, the disabled, and the elderly

from discrimination even though these classes are not constitutionally protected. The dissent ignores this basic point. Instead, it substitutes its own intuitions to conclude that Florida’s interests are 

illusory because the statute only protects against (what it labels)

“non-pejorative” or “neutral” discrimination (whatever those labels mean). Dissenting Op. at 34, 45–46. 

The dissent has it backwards. The State—not an Article III 

court—has the constitutional authority to determine what is and is

not a “reasonable distinction” between its citizens and what qualifies as discrimination worth remedying. Id. at 42. In doing so, the 

State may find, as a matter of fact, that it needs to protect the unvaccinated from being excluded from the market. The dissent’s approach would flip the script and allow Article III judges to decide

which of Florida’s citizens deserve protection. And that approach 

would threaten the state’s authority to protect its citizens from various forms of discrimination. We decline the dissent’s invitation to 

put these policy decisions in the hands of unelected federal judges. 

The states are in a better position to make “reasonable distinctions” 

between their citizens and to secure their civil rights. For that 

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21-12729 Opinion of the Court 47

reason, the Constitution affords state legislatures great deference

in this area. Clover Leaf Creamery Co., 449 U.S. at 466. 

The dissent’s dismissal of Florida’s substantial interest in 

protecting privacy is similarly unpersuasive. The dissent concludes 

that section 381.00316(1) “does not meaningfully promote privacy.” Id. at 53. The dissent reasons that “the state itself requires 

Floridians to present proof of vaccination against diseases other 

than COVID-19 to attend schools at the very same time that Section 381.00316(1) prohibits cruise lines from requiring documentation of COVID-19 vaccination.” Id. at 56. But the dissent’s argument again rests on an unstated and false premise that legislatures 

must treat all diseases as though they are equal. The Legislature 

could have sensibly determined that the effects of polio on children 

justify burdening privacy but that the effects of COVID-19 on children do not. The Legislature expressly considered that other diseases warrant vaccination requirements in schools despite burdens 

to privacy. That kind of line-drawing is quintessentially one for legislatures, not this Court. And that a legislature might weigh health 

benefits against privacy interests differently for different diseases 

does not mean that it advances privacy interests “trivially” when it 

prohibits compelled disclosures whenever it decides that the privacy side of the scale is weightier.

We conclude that applying section 381.00316(1) “as written” 

would “rationally contribute to [the State’s] purported local benefits.” See Fla. Transp. Servs., 703 F.3d at 1260. And because “[w]e 

cannot say that the Florida legislature’s [traditional] justification[s] 

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48 Opinion of the Court 21-12729

w[ere] merely illusory,” we also cannot “second guess the legislature’s judgment as to the relative importance of [those] justifications versus any burdens imposed on interstate commerce.” Locke, 

634 F.3d at 1194–95. So, at the very least, Norwegian “must overcome a strong presumption of validity” that favors section 

381.00316(1). See Kassel, 450 U.S. at 670 (internal quotation marks 

omitted).

Despite the evidence that it will suffer economically if it 

complies with section 381.00316(1), Norwegian cannot overcome 

that strong presumption of validity. Norwegian can travel with unvaccinated passengers to ports. Although the Bahamas and the 

United States Virgin Islands once required all passengers aged 12 

and older to be vaccinated, the governments of those destinations 

have since revised their protocols to allow unvaccinated persons to 

enter with negative COVID-19 tests. Norwegian concedes that 

other foreign ports similarly allow unvaccinated passengers to enter with negative testing. And Norwegian’s Chief Executive Officer 

testified that Norwegian “plann[ed] to require that passengers . . . 

test negative for COVID-19 before boarding [its] cruises” in any 

event. Even so, Norwegian relies on evidence that compliance with 

section 381.00316(1) would burden its operations. The district 

court concluded that “documentary proof of vaccination w[ould] 

expedite passengers’ entry into virtually every single country and 

port where [Norwegian] intend[s] to sail.” And it concluded that 

without such proof, other protocols would be “impractical” and 

“financially, legally, and logistically onerous” for Norwegian. But

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21-12729 Opinion of the Court 49

these burdens to Norwegian are not “clearly excessive in relation 

to” the benefits of furthering the State’s substantial anti-discrimination and privacy interests. See Pike, 397 U.S. at 142.

The Commerce Clause does not necessarily protect Norwegian against prohibitive burdens imposed by local law. “[T]he 

Commerce Clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations.” Clover Leaf Creamery Co., 449 U.S. at 474 (internal quotation marks 

omitted). So, “nondiscriminatory regulation[s] serving substantial 

state purposes [are] not invalid simply because [they] cause[] some 

business to shift from a predominantly out-of-state industry to a 

predominantly in-state industry.” Id. The effect of prohibitive or 

burdensome regulations on individual firms ordinarily “relates to 

the wisdom of the statute, not to its burden on commerce.” Exxon 

Corp. v. Governor of Maryland, 437 U.S. 117, 128 (1978). To be 

sure, burdens to individual firms can sometimes be unduly burdensome if, against the facts here, the putative local benefits are illusory or insubstantial. In Pike, for example, “the State’s tenuous interest in having the company’s [products] identified as originating 

in [the state] c[ould not] constitutionally justify the requirement 

that the company build and operate an unneeded $200,000 . . . 

plant in the State.” 397 U.S. at 145. But the Pike Court did not 

“deal[] . . . with state legislation in [a] field . . . where the propriety 

of local regulation has long been recognized,” id. at 143 (internal 

quotation marks omitted), and it instead dealt with a regulation 

“requiring business operations to be performed in the home State 

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50 Opinion of the Court 21-12729

that could more efficiently be performed elsewhere,” a kind of 

“burden on commerce [that] has been declared to be virtually per 

se illegal,” id. at 145. Because the State’s interests here are substantial and long recognized, the statute can subject some businesses to 

prohibitive or burdensome regulations.

Section 381.00316(1) also does not unduly burden out-ofstate firms any more than domestic ones. The statute does not prohibit foreign cruise lines from imposing their preferred vaccination 

requirements when conducting business elsewhere, and those

cruise lines that do impose their preferences abroad “may continue 

to move freely across the [Florida] border” on other trips. Clover 

Leaf Creamery Co., 449 U.S. at 472. Compliance with the statute 

may very well impose additional costs on certain cruise lines, “but 

there is no reason to suspect that the gainers will be [Florida] firms, 

or the losers out-of-state firms.” See id. at 472–73; see also id. at 473 

n.17 (“The existence of major in-state interests adversely affected 

by [a statute] is a powerful safeguard against legislative abuse.”).

Indeed, Norwegian is headquartered in Florida. And the strong deference ordinarily due to the Legislature remains if the statute is 

burdensome to domestic and foreign businesses alike. Cf. Kassel, 

450 U.S. at 675–76 (“Less deference to the legislative judgment is 

due . . . where the local regulation bears disproportionately on outof-state residents and businesses.”). “[B]ecause this burden is one 

shared by Florida and out-of-state firms alike, the burden is not 

clearly excessive in relation to the requirement’s local benefit.” 

Locke, 634 F.3d at 1195.

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Norwegian also may choose to “eschew[] operations in Florida” if it is forced to comply with section 381.00316(1), but that 

choice would not establish a burden that is clearly excessive in relation to the State’s substantial interests. Although “[s]ome [businesses] may choose to withdraw entirely from the [Florida] market, 

. . . interstate commerce is not subjected to an impermissible burden simply because an otherwise valid regulation causes some business to shift from one interstate [business] to another.” Exxon, 437 

U.S. at 127. The district court acknowledged that some cruise lines 

do not impose the kind of requirement that Norwegian would like 

to impose. And those other cruise lines that maintain operations in 

Florida may, consistent with section 381.00316(1), continue to require compliance with other restrictions for the unvaccinated, such 

as COVID-19 testing. 

Finally, neither the district court nor Norwegian has identified a less burdensome regulation that would “promote[] as well” 

the State’s substantial interests. See Pike, 397 U.S. at 142. Norwegian argues that “Florida could have adopted a narrow carveout 

that specifically exempts cruise line operators or interstate activities 

and services, such as international cruises.” (Internal quotation 

marks omitted.) The district court used the same examples and reasoned that the State’s “failure to adopt a less restrictive alternative 

. . . undermine[s] the survival of [s]ection 381.00316 when applying 

the Pike balancing test.” But there is no reason to believe that any 

less burdensome alternatives would have promoted the State’s interest “as well” as section 381.00316(1). Id. For example, an 

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52 Opinion of the Court 21-12729

exemption for specific industries would allow businesses within 

them to discriminate against and require disclosures of private

medical documentation from customers and patrons. It is hard to 

see how that state of affairs promotes anti-discrimination and privacy interests as well as an outright ban. Indeed, the district court 

faulted the State for not enacting a statute that more effectively 

promotes those interests by extending the ban to employer-employee relationships. 

Norwegian and the district court “have suggested several alternative statutory schemes, but these alternatives are either more 

burdensome on commerce than [section 381.00316(1)] (as, for example, banning all [vaccination requirements]) or less likely to be 

effective (as, for example, providing” exemptions). See Clover Leaf 

Creamery Co., 449 U.S. at 473–74. That reasoning would turn the 

Pike test on its head. Instead of a test designed to be deferential to 

nondiscriminatory state laws, the test would require invalidating 

all such laws. Every statute that incidentally burdens interstate 

commerce can have gerrymandered exemptions to prevent burdensome effects in particular industries or to particular firms, but 

Pike tells us that those effects are ordinarily permissible.

One final argument merits attention. “Because foreign commerce is at stake,” Norwegian argues that “weightier justification 

is required from the State.” “In the unique context of foreign commerce, a State’s power is further constrained because of the special 

need for federal uniformity.” Barclays Bank PLC v. Franchise Tax 

Bd., 512 U.S. 298, 311 (1994) (internal quotation marks omitted). 

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This consideration is typically implicated in the context of “state 

tax[es] on the instrumentalities of foreign commerce,” see Japan 

Line, Ltd. v. Cnty. of Los Angeles, 441 U.S. 434, 448 (1979); see also 

Wardair Canada Inc. v. Fla. Dep’t of Rev., 477 U.S. 1, 8 (1986), but

it is also implicated in the context of foreign trade and discriminatory “export restrictions,” S.-Cent. Timber Dev., Inc. v. Wunnicke, 

467 U.S. 82, 99–101 (1984) (invalidating a “protectionist” and “naked restraint on export of unprocessed [timber]” to a foreign country in part because “foreign commerce [was] burdened by the restriction”). Those contexts concern “international relations” and 

“foreign intercourse and trade,” contexts in which “the people of 

the United States act through a single government with unified and 

adequate national power.” Japan Line, Ltd., 441 U.S. at 448 (internal quotation marks omitted).

By contrast, any burdens imposed by section 381.00316(1)

result incidentally from matters traditionally of local concern. As 

we have explained, section 381.00316(1) is a “regulation of health 

and safety,” “matters [that are] primarily, and historically, . . . matter[s] of local concern,” Hillsborough, 471 U.S. at 719, not a tax or 

restraint on imports and exports. And it is not the case that Congress has given “substantial attention” to the kind of regulation at 

issue, which does not “regulat[e] commercial relations with foreign 

governments.” See Wunnicke, 467 U.S. at 99–100 (internal quotation marks omitted). So the incidental burdens imposed on foreign 

commerce are not “clearly excessive in relation to the putative local benefits,” Pike, 397 U.S. at 142, that result from Florida’s 

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54 Opinion of the Court 21-12729

traditional power to pass local well-being regulations to further 

substantial local interests. Cf. S. Pac. Co. v. Ariz. ex rel. Sullivan, 

325 U.S. 761, 783 (1945) (explaining that “[r]egulations affecting the 

safety of the[] use [of highways] . . . affect[s] alike shippers in interstate and intrastate commerce” and are “akin to quarantine 

measures, game laws, and like local regulations of rivers, harbors, 

piers, and docks, with respect to which the state has exceptional 

scope for the exercise of its regulatory power, and which, Congress 

not acting, have been sustained even though they materially interfere with interstate commerce”).

We conclude that Norwegian is unlikely to succeed on the 

merits of its Commerce Clause claim. Florida has a substantial interest in protecting its “residents from the harmful effects of discrimination,” see Barez, 458 U.S. at 609, and in protecting the medical privacy of its residents, Wollschlaeger, 848 F.3d at 1314. And 

Florida has sought to further those interests by enacting a statute 

that proscribes businesses from subjecting an entire class of residents—including a substantial minority population—to economic 

ostracism by requiring that they produce medical documentation 

they either do not have or would like not to convey. Cf. Barez, 458 

U.S. at 609. Because these justifications are not illusory, this Court 

cannot “second guess the legislature’s judgment as to the relative 

importance of [those] justifications versus any burdens imposed on 

interstate commerce.” Locke, 634 F.3d at 1195. It follows that “the 

burden on interstate commerce” does not “clearly outweigh[] the 

State’s legitimate purposes,” Clover Leaf Creamery Co., 449 U.S. 

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21-12729 Opinion of the Court 55

at 474, especially where, as here, “the interests on both sides are 

incommensurate”; “more like judging whether a particular line is 

longer than a particular rock is heavy,” Bendix Autolite Corp. v. 

Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring in the judgment). Florida may, consistent with the Commerce 

Clause, “remov[e] . . . barriers to the participation by its residents 

in the free flow of interstate commerce.” Barez, 458 U.S. at 608.

IV. CONCLUSION 

We VACATE the preliminary injunction against the Surgeon General.

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21-12729 ROSENBAUM, J., Dissenting 1

ROSENBAUM, Circuit Judge, Dissenting:

Today the Majority Opinion validates an unconstitutional 

Florida law—Florida Statutes Section 381.00316(1), which prohibits businesses from requiring patrons to show proof of vaccination 

to receive services—as that law applies to the cruise industry.1 It 

does so by effectively applying only half of the dormant Commerce 

Clause analysis that Supreme Court precedent requires—and not 

even applying that half correctly. For dormant Commerce Clause 

challenges to state laws, Supreme Court precedent requires us to 

balance the local benefits a state’s law brings against the burdens 

that law imposes on interstate and foreign commerce. When the 

burdens clearly exceed the benefits, the law violates the dormant 

Commerce Clause. Four major mistakes plague the Majority 

Opinion’s application of the dormant Commerce Clause test.

First, the Majority Opinion shortcuts the balancing process 

by mislabeling Section 381.00316(1) a health and safety regulation. 

1 Plaintiffs-Appellants Norwegian Entities “br[ought] this [case as an] as-applied constitutional challenge,” and the district court enjoined Florida “from 

enforcing Section 381.00316 against Plaintiffs [Norwegian entities]” only. Norwegian Cruise Line Holdings, Ltd. v. Rivkees, 553 F. Supp. 3d 1143, 1148, 1180 

(S.D. Fla. 2021). Yet the Majority Opinion refuses to recognize that this appeal 

raises only an as-applied challenge. See Maj. Op. at 31–32 (insisting on analyzing the statute facially and discussing its application to “grocery stores, restaurants, fitness gyms, clothing stores, barber shops and hair salons, and even 

pharmacies”). Perhaps that’s because it recognizes the weakness of its arguments as they relate to this appeal as it was in fact brought. More on this later. 

See infra at 49–50.

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2 ROSENBAUM, J., Dissenting 21-12729

It does so because state laws that meaningfully promote public 

health and safety receive “strong deference” from federal courts

balancing a law’s local benefits against the burdens that law imposes on interstate and foreign commerce. But a regulation qualifies for that kind of deference under dormant Commerce Clause 

analysis only if it actually “touch[es] upon safety,” Maj. Op. at 34

(quoting Kassel v. Consol. Freightways Corp., 450 U.S. 662, 670 

(1981) (plurality opinion)), and meaningfully advances the state’s 

interest in promoting health and safety. Here, though, the only 

way Section 381.00316(1) “touch[es] upon safety” is to wallop it.

Indeed, Florida’s law is the exact opposite of a law that 

meaningfully promotes health and safety: it will facilitate the 

spread of COVID-19 onboard cruise ships by depriving cruise lines 

of the ability to verify passengers’ vaccination statuses, a resource 

Norwegian’s2 Chief Executive Officer has described as the company’s most valuable tool for preventing the spread of COVID-19 

onboard. The Majority Opinion doesn’t let that pesky little fact 

stop it from treating Florida’s law like it promotes health and 

safety, though, so the law can benefit from (undeserved) “strong 

deference.”

2

I use “Norwegian” to refer collectively to the plaintiffs-appellants: Norwegian Cruise Line Holdings Ltd.; NCL (Bahamas) Ltd., d/b/a Norwegian 

Cruise Line; Seven Seas Cruises S. De R.L., d/b/a Regent Seven Seas Cruises; 

and Oceania Cruises S. De R.L., d/b/a Oceania Cruises.

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21-12729 ROSENBAUM, J., Dissenting 3

Second, contrary to Supreme Court precedent, the Majority 

Opinion does not assess whether (and, if so, to what extent) applying Section 381.00316(1) to the cruise industry actually furthers 

Florida’s claimed interests. As the Supreme Court has explained, a 

state’s interest is “illusory” when the law “further[s]” the state’s 

claimed interest only “marginally,” Kassel, 450 U.S. at 670 (plurality 

opinion); see also id. at 691 (Rehnquist, J., dissenting). But the Majority Opinion never determines whether applying Section 

381.00316(1) to the cruise industry actually furthers Florida’s 

claimed interests. Instead, the Majority Opinion just evaluates 

Florida’s claimed interests in the abstract. And that allows it to improperly equate Florida’s interest in preventing cruise lines from 

distinguishing between vaccinated and unvaccinated customers for 

health reasons with a state’s interest in remedying invidious discrimination along racial, ethnic, religious, or gender lines. By engaging in this false equivalency, the Majority Opinion artificially 

inflates the nature of Florida’s actual interest (which is relatively 

weak, particularly in the context of the cruise industry) to be as robust as a state’s truly strong interest in preventing invidious discrimination.

Third, the Majority Opinion affords strong weight to Florida’s goal of protecting the privacy of those who wish not to disclose their COVID-19 vaccination status, even though Florida itself 

requires proof of vaccination against many other infectious and potentially deadly and debilitating diseases to attend school and partake in other public services. In so doing, the Majority Opinion 

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4 ROSENBAUM, J., Dissenting 21-12729

ignores that such a “distinction is at variance with [Florida’s] asserted legislative purpose, and tends to undermine [Florida’s] justification for the burden the statute imposes on interstate commerce.” Edgar v. MITE Corp., 457 U.S. 624, 644 (1982).

Each of these three errors piles false weight upon false 

weight upon false weight on the local-benefits side of the balance 

so that validation of Florida’s law under the Commerce Clause is a 

foregone (but false) conclusion. And then, for good measure, the 

Majority Opinion makes its fourth major error, all but ignoring the 

substantial burdens Section 381.00316(1) imposes on interstate and 

foreign commerce by facilitating the spread of COVID-19 aboard 

cruise ships and worldwide—burdens that damage the supply 

chain and significantly affect commerce otherwise.

The Majority Opinion’s insistence on effectively ending its 

analysis with its (incorrect) assessment of the local benefits and 

then declaring the law valid under the Commerce Clause—rather 

than weighing the actual (minimal) benefits the law bestows 

against the true and heavy burden the law imposes on commerce—

leaves the analysis half-done (and wrongly so on the done half). 

And it’s a lot like leaving the house wearing a misbuttoned tuxedo 

shirt and tails, while barefoot and pantless, and declaring yourself 

to be formally attired. For everyone’s sake, neither should occur.

Instead of the Majority’s half-dressed analysis, we must correctly evaluate the local benefits—that is, we must discern the precise interests that Section 381.00316(1) furthers when applied to the 

cruise industry. And then, as the term “balancing test” conveys, 

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21-12729 ROSENBAUM, J., Dissenting 5

we must balance those local benefits against the burdens the law 

inflicts on both interstate and foreign commerce. When we do 

that, it’s clear that the heavy burdens the law imposes on commerce far outweigh any minimal benefits in the context of the 

cruise industry. So Section 381.00316(1) violates the Commerce 

Clause as applied to Plaintiff-Appellant Norwegian. And the district court did not abuse its discretion in preliminarily enjoining the 

law.

I begin my analysis in Section I where the Majority Opinion 

left off: by noting the heavy burdens Section 381.00316(1) imposes 

on interstate and foreign commerce because of its significant role 

in the particular context of the cruise industry in facilitating and 

spreading COVID-19 around the globe. With that in mind, I then 

examine the governing standards for reviewing a preliminary injunction and for reviewing a challenge under the dormant Commerce Clause in Sections II and III, respectively. In Section IV, I 

explain why Florida’s statute imparts few local benefits. Section V

weighs any local benefits of the law against the substantial burden 

it inflicts on interstate and foreign commerce and shows that Norwegian is likely to succeed on the merits.3

 And Section VI shows 

why Norwegian meets the remaining requirements for a preliminary injunction.

3 Because Section 381.00316(1) is unconstitutional under the dormant Commerce Clause, I do not consider whether it is also unconstitutional under the 

First Amendment.

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6 ROSENBAUM, J., Dissenting 21-12729

I. COVID-19 has exacted and continues to exact a heavy toll 

on commerce, which Section 381.00316(1) significantly exacerbates by facilitating the spread of COVID-19 on cruise 

ships and around the world. 

The damage COVID-19 has wrought did not end with the 

tragic deaths of more than 6-and-a-half million people worldwide, 

including those of the million-plus in the United States.4 Among 

other legacies of COVID-19 the world lives with, we must now 

deal with “long COVID,” a grave and widespread condition. More 

than one-fifth of the roughly 609 million people who survived 

COVID-19—about 121 million globally and almost 19 million in 

the United States alone—suffer from some form of long COVID.5 

According to the CDC, long COVID can cause “brain fog,” debilitating fatigue, heart palpitations, shortness of breath, sleep problems, diarrhea, depression, chest pain, and joint and muscle pain.

6

 

4 World Health Organization, WHO Coronavirus (COVID-19) Dashboard, 

https://covid19.who.int/ (last visited Oct. 5, 2022).

5 See Lara Bull-Otterson et al., Post–COVID Conditions Among Adult 

COVID-19 Survivors Aged 18–64 and ≥65 Years — United States, March 2020–

November 2021, Centers for Disease Control and Prevention — Morbidity 

and Mortality Weekly Report (May 27, 2022), 

https://www.cdc.gov/mmwr/volumes/71/wr/mm7121e1.htm; see also 

World Health Organization, WHO Coronavirus (COVID-19) Dashboard, supra.

6 See Long COVID or Post-COVID Conditions, Centers for Disease Control 

and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/long-termeffects/index.html (last visited Oct. 5, 2022). 

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21-12729 ROSENBAUM, J., Dissenting 7

Worse still, these symptoms result from biological and chemical 

changes in the body.7

Take “brain fog,” for instance. Stanford researchers studying mouse brains found that, after a COVID-19 infection, an abnormal increase in activity of certain brain cells had contributed to 

higher inflammation in the brain.

8 In fact, “[t]he genes expressed 

. . . after COVID-19 overlapped closely with those expressed . . . in 

neurological conditions such as Alzheimer’s disease.”9

That’s right—Alzheimer’s. And with long COVID, it’s not 

just mouse brains that show signs of Alzheimer’s; it’s human 

brains, too.10 Not only that, but “the acquired dementia that these 

patients get tends to be lasting and very problematic.”11 And kids 

who’ve suffered COVID-19 have been found twice as likely to 

7 See id.

8 See Erin Digitale, Brain Fog After COVID-19 has Similarities to ‘Chemo 

Brain,’ Stanford-Led Study Finds, Stanford Medicine — News Center (June 13, 

2022), https://med.stanford.edu/news/all-news/2022/06/brain-fog-covidchemo-brain.html.

9

Id.

10 Id.

11Elizabeth Cooney, Risk of ‘brain fog’ and other conditions persists up to two 

years after Covid infection, Stat https://www.statnews.com/2022/08/17/risk-of-brain-fog-and-other-conditions-persists-up-totwo-years-after-covid-infection/ (quoting Dr. Wes Ely) (last visited Oct. 5, 

2022).

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8 ROSENBAUM, J., Dissenting 21-12729

experience seizures and three times as likely to have psychotic disorders as kids who haven’t had COVID-19.12

Nor do long COVID’s profound effects stop there. Some 

long-haulers have problems with multiple organ systems or even 

experience autoimmune conditions that increase their risks of developing diabetes, heart conditions, or neurological conditions.13

But vaccines can prevent many of these problems. First off, 

vaccinated people are “markedly” less likely to contract COVID-19 

than unvaccinated people.

14 And among those who get COVID19, vaccinated people are twelve times less likely to endure severe 

disease and require hospitalization than those who are unvaccinated.15

 Vaccinated people are also only half as likely to develop 

long COVID if they do fall ill.16

12 Id.

13 See supra, note 5.

14 See David N. Fisman et al., Impact of Population Mixing Between Vaccinated and Unvaccinated Subpopulations on Infectious Disease Dynamics: 

Implications for SARS-CoV-2 Transmission, Canadian Medical Association 

Journal (Apr. 25, 2022), https://www.cmaj.ca/content/194/16/E573. 

15 See COVID-19 Vaccines Continue to Protect Against Hospitalization and 

Death Among Adults, Centers for Disease Control and Prevention (Mar. 18, 

2022), https://www.cdc.gov/media/releases/2022/s0318-COVID-19-

vaccines-protect.html.

16 See UKHSA Review Shows Vaccinated Less Likely to Have Long COVID 

than Unvaccinated, GOV.UK (Feb. 15, 2022), https://www.gov.uk/government/news/ukhsa-review-shows-vaccinated-less-likely-to-have-long-covidthan-unvaccinated.

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21-12729 ROSENBAUM, J., Dissenting 9

Plus, vaccines protect more than just those who receive 

them. Studies show that unvaccinated people contribute disproportionately to the spread of COVID-19 to others—including to 

vaccinated individuals.17 In fact, the district court here found that 

vaccines “reduce the risk of transmission from a fully vaccinated 

person by 80 to 90 percent.” Norwegian Cruise Line Holdings, 

Ltd., 553 F. Supp. 3d at 1150. So a vaccinated person is both less 

likely to develop COVID-19 herself and also less likely to spread 

COVID-19 to others than is an unvaccinated person.

This disparity is especially significant in the context of 

cruises, where hundreds—if not thousands—of people congregate 

in close quarters for several days or weeks at a time. As the CDC 

has recognized, “COVID-19 spreads easily between people in close 

quarters on board ships.”18 And when passengers disembark from 

the cruise, they enter other countries and eventually return home 

to different states and countries around the world, carrying with 

them and further spreading any infections they contracted on the 

ship.

Vaccines have been an important development in combatting our ongoing COVID-19 problem. Still, some may have valid 

17 See Fisman, supra. 

18 See Cruise Ship Travel During COVID-19, Centers for Disease Control and 

Prevention (last updated July 18, 2022), https://www.cdc.gov/coronavirus/2019-ncov/travelers/cruise-travel-during-covid19.html. 

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10 ROSENBAUM, J., Dissenting 21-12729

reasons for not getting vaccinated, and judging those reasons is not 

what this case is about.

Instead, this case is about the destruction that COVID-19 has 

exacted and continues to exact on national and foreign commerce: 

the obvious and hefty costs to economic output. Just consider the 

harm the pandemic has caused to the supply chain.19 When we 

view COVID-19 through this lens, it is undeniable that more cases 

of COVID-19 mean even more damage to commerce.

Yet Section 381.00316(1) prohibits almost all businesses, including cruise lines like Norwegian, from, before serving patrons, 

requiring them to show proof that they are vaccinated. In this way, 

the statute compounds the burdens COVID-19 inflicts on interstate 

and foreign commerce because unvaccinated people are significantly more likely to develop (and therefore transmit) COVID-19 

than vaccinated people, especially in a cruise setting. The district 

court found that obtaining proof of vaccination from passengers is 

the most important safeguard to prevent the spread of COVID-19 

through cruises. 

But because of Section 381.00316(1), cruise lines can’t do 

that. So they have no way to mitigate the spread of COVID-19 on 

19 See, e.g., Sean Harapko, How COVID-19 Impacted Supply Chains and What 

Comes Next, EY (Feb. 18, 2021), https://www.ey.com/en_us/supplychain/how-covid-19-impacted-supply-chains-and-what-comes-next (“The 

COVID-19 pandemic has posed significant challenges for supply chains globally.”).

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21-12729 ROSENBAUM, J., Dissenting 11

that important basis. And because the extended time in close quarters on cruises fuels the transmission of COVID-19 by unvaccinated 

people, more passengers will develop COVID-19. That increased

transmission creates problems not only for Norwegian’s onboard 

medical services—which can become overrun with COVID-19 patients, obstructing medical care for other illnesses and conditions—

but also for the passengers onboard, the inhabitants of the cities 

and ports the ships visit, and those people whom passengers encounter on their journeys home and in their communities, all of 

whom are now more likely to contract COVID-19 and possibly develop long COVID. In turn, that imposes far-reaching costs on interstate and foreign commerce for Norwegian, which suffers injuries to its goodwill and its business. And it inflicts even greater burdens on interstate and foreign commerce generally by removing 

workers from the workforce, which decreases consumers’ spending power and causes interstate and foreign commerce to contract.

II. Standard of Review 

With those burdens in mind, I turn to the standards that govern our review of the district court’s decision to impose a preliminary injunction. We review a district court’s order on a motion for 

preliminary injunction for abuse of discretion. Alabama v. U.S. 

Army Corps of Eng’rs, 424 F.3d 1117, 1129 (11th Cir. 2005). When 

conducting our evaluation, we review a district court’s conclusions 

of law de novo and “findings of fact underlying the grant of an 

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12 ROSENBAUM, J., Dissenting 21-12729

injunction for clear error,” Am.’s Health Ins. Plans v. Hudgens, 742 

F.3d 1319, 1329 (11th Cir. 2014).

And when, as here, constitutional rights are at stake, our deference to the district court is great: even if “the underlying constitutional question is close,” “we should uphold the injunction and 

remand for trial on the merits.” Ashcroft v. ACLU, 542 U.S. 656, 

664–65 (2004). So “if the district court’s analysis of the preliminary 

injunction factors reflects a reasonable conclusion about a close 

question of constitutional law,” “novel and difficult constitutional 

questions [should be] settled at a later stage, with the benefit of further factual and legal development” Gordon v. Holder, 721 F.3d 

638, 644–45 (D.C. Cir. 2013), overruled on other grounds by South 

Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2099 (2018); see also Valle 

Del Sol Inc. v. Whiting, 709 F.3d 808, 817 (9th Cir. 2013).

We consider four factors when determining the propriety of 

preliminary injunction relief: (1) whether the party seeking the injunction has shown a substantial likelihood of success on the merits, (2) whether the party seeking the injunction will suffer irreparable harm without the injunction, (3) whether the balance of the 

equities favors an injunction, and (4) whether an injunction serves 

the public interest. Gonzalez v. Governor of Ga., 978 F.3d 1266, 

1270–71 (11th Cir. 2020). “The third and fourth factors ‘merge’ 

when, as here, the government is the opposing party.” Id. at 1271 

(11th Cir. 2020) (cleaned up). Likelihood of success on the merits 

“is ‘generally the most important’ of the four factors.” Id. at 1271 

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21-12729 ROSENBAUM, J., Dissenting 13

n.12 (quoting Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 

1232 (11th Cir. 2005)).

III. The Dormant Commerce Clause 

This deferential standard of review governs our consideration of the district court’s conclusion that Section 381.00316(1), as 

applied to the cruise industry, violates the Commerce Clause. The 

Commerce Clause empowers Congress “to regulate commerce 

with foreign nations, and among the several states, and with the 

Indian tribes.” U.S. Const. art. I, § 8, cl. 3. 

Besides conferring that power on Congress, the Clause also 

invalidates state laws that “impos[e] substantial burdens” on interstate and foreign commerce. Dennis v. Higgins, 498 U.S. 439, 448 

(1991) (citation and quotation marks omitted).20 We sometimes refer to this “implicit restraint” of the Commerce Clause as the 

“dormant” Commerce Clause. United Haulers Ass’n, Inc. v. 

Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338, 343 

20 This “dormant” aspect of the Commerce Clause also prohibits state action 

that discriminates against interstate commerce. See, e.g., Fla. Transp. Servs., 

Inc. v. Miami-Dade Cnty., 703 F.3d 1230, 1243 (11th Cir. 2012). So we generally use a “two-tiered analysis” to evaluate state action challenged under the 

dormant Commerce Clause. Id. Here, though, I agree with the Majority that 

Section 381.00316(1) survives scrutiny under the first tier of that analysis—the 

statute does not discriminate against out-of-state commerce. See Maj. Op. at 

29. For that reason, I limit my discussion to the second tier, which focuses on 

whether Section 381.00316(1) unduly burdens interstate commerce. See Fla. 

Transp. Servs., 703 F.3d at 1244. 

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14 ROSENBAUM, J., Dissenting 21-12729

(2007). The so-called dormant Commerce Clause invalidates state 

legislation that “unduly burdens” interstate and foreign commerce. 

Fla Transp. Servs., Inc., 703 F.3d at 1245. 

Whether a law unduly burdens commerce turns on the balancing test that Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), sets 

forth. Under that test, a state law violates the dormant Commerce 

Clause when “the burden imposed on” foreign and interstate 

“commerce is clearly excessive in relation to the putative local benefits.” Id. at 142.

To state the obvious, the Pike balancing test is a balancing 

test. So it’s worth emphasizing that, in evaluating whether Section 

381.00316(1) survives that test, we must balance the burden that 

the law imposes on interstate and foreign commerce against the 

local benefits the law yields to further the State’s asserted interests. 

Even if the state had a rational basis for believing its legislation 

would accomplish a stated purpose, that is not enough, contrary to 

the Majority Opinion’s suggestion, see Maj. Op. at 36, to uphold 

the law under the Commerce Clause.21 Rather, even if the state 

had a rational basis, we still must weigh the law’s local benefits 

against the burden it imposes on commerce. Again, Pike imposes 

a balancing test.

21 As I explain later, see infra at 53–58, the Majority Opinion’s suggestion that 

the second tier of the Pike test requires only rational-basis review on the localbenefits side of the test is incorrect. See Maj. Op. at 37–38 (suggesting as 

much).

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I begin with what we must balance on the state-interest side 

(local benefits) of the scale. On this side of the balance, Pike and its 

progeny require two inquiries. First, we must identify the true legislative purpose of the law, and second, we must determine 

whether and how much the law actually furthers the true purpose.

Starting with the first inquiry, we can often just accept a 

state’s asserted purpose at face value. But we can’t do that when 

the legislative scheme and history show that the state’s asserted 

purpose “could not have been a goal of the legislation.” Clover 

Leaf Creamery Co., 449 U.S. 456, 463 n.7 (1981) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648, n.16 (1975)); see also Locke 

v. Shore, 634 F.3d 1185, 1194 (11th Cir. 2011) (accepting a state’s 

asserted safety interest when “the legislative history confirm[ed] 

that the legislature highlighted safety concerns”). 

Pike shows how this inquiry works. There, Arizona enforced one of its laws in a way that prohibited a farming company 

from transporting uncrated cantaloupes from its Arizona ranch to 

its packing and processing facility in California. Pike, 397 U.S. at 

138. That law’s “core” provision required that fruits shipped from 

Arizona “be packed” so that the visible fruits did “not ‘materially 

misrepresent’ the quality of the lot as a whole.” Id. at 142–43. The 

“impetus” for that requirement was Arizona’s “fear that some 

growers were shipping inferior or deceptively packaged produce,” 

which caused “the reputation of Arizona growers” to suffer. Id. at 

143. Arizona “stipulated that [the law’s] primary purpose [was] to 

promote and preserve the reputation of Arizona growers”—which, 

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16 ROSENBAUM, J., Dissenting 21-12729

in the abstract, the Supreme Court observed, were “surely legitimate state interest[s].” Id. 

But as instructive here, the Court did not just accept Arizona’s asserted interest and balance it against the burdens the law 

imposed on commerce. Rather, the Court observed that “application of the Act” to the farming-company plaintiff had “a far different impact, and quite a different purpose.” Id. at 144. That farming company grew cantaloupes “of exceptionally high quality.” Id. 

So applying the law to this company—and thus preventing the 

company from packing its fruit outside Arizona—did not serve “the 

purpose of keeping the reputation of [Arizona] growers unsullied,” 

id. Instead, this application “served to enhance” the “reputation” 

of Arizona growers by informing consumers that the company’s 

“high quality” cantaloupes were “grown in Arizona.” Id. And the 

Court held that, though the law’s claimed purpose encompassed 

“legitimate state interests[,]” id. at 143, “the State’s interest [as applied in that particular case was] minimal at best,” id. at 145–46. In 

fact, that “tenuous interest” failed to justify even the “incidental 

consequence” the law imposed on the farming-company plaintiff. 

Id.

Among other things, Pike teaches us we don’t just blindly 

accept the state’s asserted interest. Rather, we must discern the 

state’s interest by actually looking at the law as applied to the litigant challenging the state’s law. Only then can we see what interests the state’s law serves in the particular context where it is being 

challenged. 

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Once we discern the state’s interest as applied to the litigant 

challenging the state’s law, we move to the second step of the “local benefits” analysis. At this point, “the question becomes one of 

degree.” Id. at 142. So we focus on how well the state’s law furthers its purpose. In many cases, state laws “designed for” a “salutary purpose” still fail under the Pike test because those laws “further the purpose so marginally.” Kassel, 450 U.S. at 670 (plurality 

opinion); see also id. at 691 (Rehnquist, J., dissenting) (explaining 

that a State’s “asserted safety justification, although rational,” will 

often fail under Pike when the law yields “safety benefits” that “are 

demonstrably trivial”). 

And the Supreme Court has repeatedly invalidated state 

laws under the dormant Commerce Clause when those laws further their purpose only marginally. In Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429 (1978), for example, the Court invalidated a Minnesota highway safety law because the challengers 

“produced a massive array of evidence to disprove the state’s assertion that the regulations ma[de] some contribution to highway 

safety.” Id. at 445. 

The Court again invalidated a law that furthered its purpose 

only marginally in Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 

(1959). There, the Court invalidated an Illinois highway safety law 

because the plaintiffs “conclusively show[ed]” that the law had no 

safety “advantages,” and “testimony” revealed that the measure 

“create[d] hazards previously unknown to those using the highways.” Id. at 525. See also S. Pac. Co. v. Ariz. ex rel. Sullivan, 325 

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18 ROSENBAUM, J., Dissenting 21-12729

U.S. 761, 779 (1945) (invalidating Arizona safety measure that increased hazards and afforded “at most slight and dubious” safety 

benefits); Fla. Transp. Servs., Inc., 703 F.3d at 1261 (invalidating 

County permitting practices that “did not further, but if anything 

disserved, the County’s purported purposes and benefits”). As 

these cases illustrate, a state’s interest is “illusory”—and accorded 

only slight weight—when the record shows that the law furthers 

its purpose only marginally. See Kassel, 450 U.S. at 671 (plurality 

opinion); id. at 692 (Rehnquist, J., dissenting).

In sum, the state-interest side of the scale demands two inquiries. First, we discern the state’s true interest or purpose as the 

law is applied. And second, we analyze how well the law furthers 

those interests. We describe the product of these inquiries, taken 

together, as the “local benefits” that flow from the state’s law. 

Next, we balance those local benefits against the burdens the 

law imposes on interstate and foreign commerce. In so doing, we 

must remember that “the critical consideration is the overall effect 

of the statute on both local and interstate activity.” Brown-Forman 

Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986). 

In this sense, striking a balance under Pike requires “a sensitive, 

case-by-case analysis of purposes and effects,” South Dakota v. 

Wayfair, Inc., 139 S. Ct. 2080, 2094 (2018) (quoting W. Lynn 

Creamery, Inc. v. Healy, 512 U.S. 186, 201 (1994)). 

Take Clover Leaf Creamery, for example—the case on 

which the Majority Opinion effectively rests its analysis. In that 

case, the Court reviewed a Minnesota law, which prohibited 

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21-12729 ROSENBAUM, J., Dissenting 19

retailers from selling milk bottled in single-use plastic bottles, under both the Equal Protection and Commerce Clauses. 449 U.S. at 

458. The parties agreed that the State’s asserted interests of conserving resources and easing waste-disposal problems “[we]re legitimate state purposes.” Id. at 462. In its equal-protection analysis, 

the Court applied rational-basis review and sustained the law because the State’s ban on single-use plastic milk containers bore “a 

rational relation to the State’s objectives.” Id. at 470. 

Then the Court turned to the dormant Commerce Clause 

analysis. That analysis, unlike the Equal Protection Clause analysis, required a balancing of the local benefits against the burdens 

the law imposed on interstate commerce. The Court determined 

that the “burden imposed on interstate commerce by the statute 

[was] relatively minor.” Id. at 472. Emphasizing just how minimal 

that burden was, the Court noted that the law required only that 

milk producers package their products in something other than single-use plastics—say, cardboard, or glass, or recyclables. And 

“most dairies package[d] their products in more than one type of 

container,” anyway. Id. So that burden, the Court explained, was 

“not ‘clearly excessive’ in light of the substantial state interest in 

promoting conservation of energy and other natural resources and 

easing solid waste disposal problems.” Id. at 473. 

Under those circumstances, it made no difference that the 

law bore only a rational relation to the state’s legitimate interest. 

And that, of course, makes sense: when a law imposes only a minor burden on commerce, that law “cannot” inflict “a burden on 

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20 ROSENBAUM, J., Dissenting 21-12729

interstate commerce that is ‘clearly excessive in relation to the putative local benefits’ under Pike.” Nat’l Ass’n of Optometrists & 

Opticians v. Harris, 682 F.3d 1144, 1155 (9th Cir. 2012). And “we 

need not examine the actual putative benefits of the challenged 

statute[].” Id. By logical extension, then, a law that imposes only 

a minor burden on commerce will necessarily survive review under the Commerce Clause if it also survives rational-basis review 

under the Equal Protection Clause (as was the case in Clover Leaf 

Creamery).

But that calculus changes when the law inflicts real burdens 

on commerce. See Pike, 397 U.S. at 140 (invalidating Arizona’s law 

because it imposed an excessive burden on interstate commerce by 

requiring a farmer to “build packing facilities” at a “cost” of “approximately $200,000”). In that case, we must carefully consider

the local benefits that the state law returns and weigh them against 

its burdens. See Town of Southold v. Town of E. Hampton, 477 

F.3d 38, 52 (2d Cir. 2007) (explaining the need to “remand[] for further discovery or trial where a party has offered a credible expert 

affidavit alleging a burden on interstate commerce and challenging 

the proposed benefits of the law.”). Greater burdens on commerce 

require greater local benefits. Pike, 397 U.S. at 142.

And when the state’s law also burdens foreign commerce, 

even a relatively minor burden can invalidate the law. Under those 

circumstances, we must apply the “well-accepted rule that state restrictions burdening foreign commerce are subjected to a more rigorous and searching scrutiny.” S.-Cent. Timber Dev., Inc. v. 

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21-12729 ROSENBAUM, J., Dissenting 21

Wunnicke, 467 U.S. 82, 101 (1984). Here, as I’ve explained, see supra Section I, there’s no question that Section 381.00316(1) burdens 

foreign commerce and relations. 

Even the Majority Opinion concedes that this rule of scrutiny applies to “restraint[s] on imports and exports.” Maj. Op. at 

53. And of course, the cruise industry exports tourism when it annually takes millions of passengers from the United States to ports 

and cities around the world.22 Section 381.00316(1) restrains that 

export by requiring cruise ships to carry unvaccinated passengers. 

As I’ve mentioned, that restraint is incredibly burdensome: cruises 

must, for example, allocate additional resources to their onboard 

medical facilities because those facilities are more likely to become 

inundated with COVID-19 outbreaks. 

Plus, local populations in foreign countries—many of whom 

“lack access to healthcare and other resources” needed to combat 

COVID-19, Del Rio Aff. ¶ 19—must endure heightened COVID-19 

transmission rates because cruise ship from Florida must carry 

22 See Statista, Cruise industry in the United States—statistics & facts (July 18, 

2022), https://www.statista.com/statistics/1251080/number-of-cruise-passengers-from-north-america/ (noting that more than 15 million cruise passengers left from ports in North America in 2019). Indeed, PortMiami is the 

Cruise Capital of the world. See PortMiami, Florida Ports Council, 

https://flaports.org/ports/portmiami/. “Port Canaveral is perhaps best 

known as the second busiest cruise port in the world,” see Port Canaveral, 

Florida Ports Council, https://flaports.org/ports/port-canaveral/. And Port 

Everglades is the third busiest cruise port in the world. Port Everglades, Florida Ports Council, https://flaports.org/ports/port-everglades/. 

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22 ROSENBAUM, J., Dissenting 21-12729

unvaccinated passengers to those locations. Then, after their 

cruises, when passengers from around the world return home, 

those who’ve contracted COVID-19 spread it to others on their 

journeys home and in their communities. And as I’ve explained, 

COVID-19 and long COVID inflict a huge toll not just on the cruise 

lines in these ways but also on commerce around the world—by 

removing workers from the supply chain and consumers from the 

market. For these reasons, we must subject Florida’s law “to a 

more rigorous and searching scrutiny.” Wunnicke, 467 U.S. at 101. 

When we do that, as I explain in Sections IV and V, we must 

conclude that Section 381.00316(1) cannot survive dormant Commerce Clause scrutiny under the Pike balancing test. 

IV. The local benefits Section 381.00316(1) delivers are minimal 

at best in the context of the cruise industry. 

In defense of its law, Florida asserts as the law’s purposes (1) 

“preventing discrimination” against and (2) “promoting privacy” 

for those who wish not to disclose their COVID-19 vaccine documents. Fla.’s Initial Br. at 29. On that basis, both Florida and the 

Majority Opinion describe Section 381.00316(1) as a regulation of 

“health and safety.” Fla.’s Initial Br. at 40; Maj. Op. at 53. From 

there, the Majority Opinion concludes that we owe “strong deference to the Florida Legislature” because Florida “could rationally 

have decided” that its law yields the putative benefits that the state 

proffers. See Maj. Op. at 36 (quoting Clover Leaf Creamery, 449 

U.S. at 461–70); see also id. at 42.

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That approach is backwards. As I explain in Subsection A, 

we grant state laws “strong deference” only when they actually 

promote health and safety. Section 381.00316(1) does no such 

thing. So the “strong deference” we reserve for health-and-safety 

regulations does not attach to Section 381.03316(1). And while 

Florida’s asserted interests in preventing discrimination and protecting privacy are legitimate state interests in theory, they are both 

illusory on this record as applied to the cruise industry, which I explain in Subsections B and C, respectively. 

A. Although Florida describes Section 381.00316(1) as an exercise 

of police power to safeguard the public health and safety, it is 

not a law that furthers genuine health and safety interests, as 

the law yields no safety benefits, but meaningfully increases 

hazards as it applies to the cruise industry.

The Majority Opinion first goes awry by extolling Florida’s 

law as a regulation of health and safety, a status it then uses to cloak 

the law with the “strong deference” that we ordinarily reserve for 

laws that actually promote public health and safety. Yet even the 

Majority Opinion knows it can’t reasonably characterize Section 

381.00316(1)—which facilitates the spread of COVID-19—as a regulation that furthers health and safety. See Maj. Op. at 34–35 (implicitly conceding that Section 381.00316(1) does not further “physical health and safety”). So after granting Section 381.00316(1) 

“strong deference” as if that law furthers a genuine interest in promoting health and safety, the Majority Opinion then promptly disowns any safety-and-health purpose attributable to Florida’s law. 

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24 ROSENBAUM, J., Dissenting 21-12729

Instead, it explains, Florida’s law need not actually “promote residents’ physical health and safety” to be an exercise of the police 

power to safeguard public health and safety. Id. at 34. The illogic 

of this “logic” speaks for itself. 

Apparently sensing this, the Majority Opinion makes another move: it argues that Florida’s law promotes “residents’ economic health and safety,” so it is entitled to the “strong deference” 

generally reserved for regulations that genuinely protect health 

and safety. Id. at 35. But that’s just wrong. And it enables the 

Majority Opinion to impermissibly hide the ball. 

Florida certainly has a legitimate interest in promoting its 

residents’ economic well-being. But that interest, by itself, does 

not necessarily warrant “strong deference” for the purpose of the 

dormant Commerce Clause analysis like a state’s interest in promoting its residents’ health and safety does. Rather, the Majority 

Opinion’s sleight-of-hand improperly cloaks Florida’s interest in 

furthering Floridians’ economic well-being with the deference 

meant for a state’s interest in promoting its residents’ physical 

health and safety. And that illegitimate move proves outcome-determinative for the Majority Opinion’s analysis. 

To be sure, the Majority Opinion later acknowledges “the 

evidence” that Norwegian “will suffer economically if it complies 

with section 381.00316(1).” Maj. Op. at 48. But it upholds Florida’s 

law by relying on the “strong presumption of validity” that the 

dormant Commerce Clause reserves for laws that actually promote public health and safety. Id. Yet that “strong presumption of 

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validity” disappears once we establish that Florida’s law does not 

further health and safety.

i. Although regulations that meaningfully further health and 

safety warrant strong deference for the purpose of the 

dormant Commerce Clause analysis, economic-well-being 

regulations do not necessarily justify that same strong deference. 

A law that promotes Floridians’ economic well-being does 

not necessarily warrant the same deference that a law that meaningfully promotes Floridians’ health and safety does. As the Supreme Court has explained, a statute “directly addressed to the protection of public health,” which “falls within the most traditional 

concept” of a state’s police power, differs from a statute that a state 

labels “a health measure on the attenuated theory that” it promotes 

the “economic well-being” of its residents. Head v. New Mexico 

Bd. of Exam’rs in Optometry, 374 U.S. 424, 428 & n.4 (1963); see 

also Raymond Motor Transp., 434 U.S. at 448–449 (Blackman, J., 

concurring) (explaining that a state’s economic interests receive 

less deference than a state’s safety interest under Pike).23

In fact, this basic distinction explains the outcome in Pike—

the fruit-shipping case. Arizona’s asserted interest in Pike did “not” 

implicate “state legislation in the field of safety where the propriety 

of local regulation has long been recognized.” 397 U.S. at 143. 

23 Chief Justice Burger and Justices Brennan and Rehnquist joined Justice 

Blackman’s concurrence. Justice Stevens did not participate in the case.

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26 ROSENBAUM, J., Dissenting 21-12729

Rather, Arizona asserted an economic well-being justification to 

“preserve the reputation of Arizona growers by prohibiting deceptive packaging” because some growers were hiding rotten fruit in 

packaging where it was not visible. Id. at 142–43. But the farmingcompany plaintiff packed high-quality produce. Id. So applying 

the law’s requirement that the fruit be packaged in Arizona to that 

company enhanced (rather than preserved) Arizona’s reputation 

for produce. And the Court held that this particular “interest [was] 

minimal at best—certainly less substantial than a State’s interest in 

securing employment for its people.” Id. at 146. 

To summarize, then, the Pike Court distinguished not only 

between laws promoting safety and those promoting economic 

well-being, but also between different laws promoting economic 

well-being and even between the different economic well-being interests that a single law protected. In this respect, the Pike Court 

found some economic interests are more important—and therefore more worthy of deference—than others. The upshot of this is 

that, contrary to the Majority Opinion’s suggestion, no one-sizefits-all approach exists for affording weight to a state’s economicwell-being justifications. 

Nor can the Majority Opinion’s misleading citation clauses 

alter this principle. The Majority Opinion Frankensteins citations 

together to justify its conclusion that “strong deference” applies 

with equal force to laws that meaningfully further health and safety 

and those that further economic well-being—meaningfully or not. 

See Maj. Op. at 34. In so doing, the Majority Opinion creates its 

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own monster of a rule that robotically accords “strong deference” 

to any state interest that is conceivably related to the state’s residents’ well-being in any way. But that bloated view of a state’s police powers is wrong.

We agree, the Majority and I, that a state has a quasi-sovereign interest—rather than a proprietary or sovereign interest—in 

the “well-being” of its citizens. Id. at 31 (citing Alfred L. Snapp & 

Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 609 (1982)). And 

a state’s “quasi-sovereign” interest encompasses its citizens’ economic and physical well-being. Barez, 458 U.S. at 609. But a state’s 

“quasi-sovereign” interest merely invests it with “standing under 

the parens patriae doctrine.” Id. That fact is totally separate from 

and unrelated to the deference we afford to different interests in a 

dormant Commerce Clause analysis. 

In the dormant Commerce Clause context, the Supreme 

Court has told us to give greater deference to regulations that 

meaningfully further health and safety than to economic-well-being regulations—to treat, in other words, these two interests differently. As the Court has noted, there is “no field” where “deference 

to state regulation has been greater than that of highway safety regulation.” Raymond Motor Transp., 434 U.S. at 443. And in Pike, 

as I just discussed, the Court distinguished “state legislation in the 

field of safety” from state legislation designed to enhance the economic well-being of its residents. 397 U.S. at 143. It further distinguished among the strengths of different economic-well-being interests.

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28 ROSENBAUM, J., Dissenting 21-12729

In sum, Pike requires “a sensitive, case-by-case analysis of 

purposes and effects,” Wayfair, 139 S. Ct. at 2094 (quoting Healy, 

512 U.S. at 201). And the Majority Opinion’s one-size-fits-all approach, which accords strong deference upon a state’s “incantation 

of a purpose to promote” its residents’ well-being in any conceivable way, Kassel, 450 U.S. at 670, contradicts the Supreme Court’s 

distinction between a state’s interests in meaningfully promoting 

health and safety and in promoting different types of economic 

well-being. So even assuming that Section 381.00316(1) furthers 

Floridians’ economic well-being, it does not follow that “strong 

deference” attaches to that law unless it meaningfully advances 

health and safety. 

And regardless of whether we view the distinction between 

meaningful health-and-safety regulations, on the one hand, and 

economic regulations, on the other, as a feature or flaw, it is an 

essential element of our constitutional system. Of course, “[e]conomic welfare is always related to health, for there can be no health 

if men are starving.” Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 

523 (1935) (Cardozo, J.). But even so, the “chief occasion” for the 

Commerce Clause was to invest the federal government—not the 

several states—with power to regulate the national economy. Id. 

at 522. “This principle that our economic unit is the Nation, which 

alone has the gamut of powers necessary to control the economy,” 

has a corollary: “the states are not separable economic units.” H.P 

Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537–38 (1949) (Jackson, J.). And if we recede from that principle and necessarily accord 

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21-12729 ROSENBAUM, J., Dissenting 29

“strong deference” to states’ economic-welfare justifications, see 

Maj. Op. at 34, we will “invite a speedy end of our national solidarity.” Baldwin, 294 U.S. at 523. 

To preserve that national solidarity, we must distinguish between regulations that meaningfully further health and safety, 

which warrant “strong deference,” and economic well-being regulations, which are more likely to unduly burden interstate and foreign commerce. Florida’s law is not one that meaningfully furthers 

health and safety (just the opposite). So it does not necessarily demand the “strong deference” that the Majority Opinion surrenders 

to the state.

ii. Florida’s law does not warrant strong deference because it 

does not meaningfully advance health or safety and in fact 

harms them.

That said, both Florida and the Majority Opinion describe 

Section 381.00316(1) as an exercise of the state’s “traditional police 

power” to safeguard both the “public health and safety and the economic well-being of its citizens,” meaning that we must analyze 

both interests under Pike. Fla.’s Initial Br. at 1, 40; see also Maj. 

Op. at 35. They make this move, it seems, because the Supreme 

Court “has been most reluctant to invalidate” “regulations that 

touch upon safety,” id. at 34 (quoting Kassel, 450 U.S. at 670); see 

also Fla.’s Initial Br. at 40. But Section 381.00316(1) is no safety

regulation. 

As I’ve noted, Pike requires that we scrutinize the legislature’s actual interest—not simply accept its stated interest at face 

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30 ROSENBAUM, J., Dissenting 21-12729

value. Clover Leaf Creamery Co., 449 U.S. at 463 n.7. And no one 

can seriously contend that Section 381.00316(1) furthers the public’s health or safety. On the contrary, the law, which makes it impossible for cruise lines to ensure their passengers are vaccinated, 

endangers the health and safety of Norwegian’s passengers and the 

community at large. After all, the district court found that vaccines 

“reduce the risk of transmission from a fully vaccinated person by 

80 to 90 percent.” Norwegian, 553 F. Supp. 3d at 1150. As Del Rio 

tells it, vaccination is the “most effective way to protect passengers, 

crews, and locals from the spread of COVID-19.” Del Rio Aff. ¶ 27. 

So, he said, “verifying the vaccination status of cruise passengers” 

is the best safeguard against COVID-19 transmission aboard the 

company’s cruises.24 Del Rio Aff. ¶ 26. By removing this tool from

the cruise industry, Section 381.00316(1) ensures more transmission of COVID-19 and decreases public safety.

We, of course, owe deference to the district court’s factual 

findings. But it’s not just the district court and Del Rio who think 

vaccination plays a critical role in stemming COVID-19 transmission. Scientific evidence verifies the important role that vaccination plays in stemming the transmission of COVID-19—especially 

in close quarters like cruise ships. See supra at pp. 8–9.

24 To be sure, the district court found that “testing is an important adjunct 

measure.” Norwegian, 553 F. Supp. 3d at 1174. But it concluded that testing 

“cannot serve as a substitute for vaccination because tests are susceptible to 

false positive and false negative results, even when repeated testing is done.” 

Id.

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Plus, here, the legislative history confirms that Florida neither consulted with medical experts nor reviewed scientific evidence when it enacted Section 381.00316(1). For example, during 

floor debates, Florida Senator Danny Burgess, who introduced the 

amendment that ultimately became Section 381.00316(1), see S.B. 

2006, Amendment 330036, 2021 Leg. Sess. (Fla. 2021), resisted reference to any health- or safety-related evidence, reminding his colleagues at least twice that he had “no medical background.” See, 

e.g., Senate Session, FLA. SENATE, at 6:20:51–6:20:56 (Apr. 29, 2021), 

https://www.flsenate.gov/media/VideoPlayer?EventID=1_q42x9ekw-202104291000&Redirect=true. When Senator 

Doug Broxson asked, 

“I think most of us feel fairly confident that the vaccine is working, so technically . . . if you go on a cruise 

ship and 95% of the people have taken the vaccine, 

the 5% that did not would be exposing the other 5%. 

Is that a fair analogy, that what we’re doing is letting 

people that choose not to have a vaccine to be exposed by the other people who are choosing not to 

have a vaccine?” 

Id. at 6:34:30–6:35:03. Senator Burgess responded, “Again, not having a medical background but understanding kind of the . . . maybe 

unscientific approach, I would agree. I think that’s fair.” Id. at 

6:35:09–6:35:19 (emphasis added).

But unfortunately, Senator Broxson got the science wrong: 

unvaccinated people transmit COVID-19 to both unvaccinated and 

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32 ROSENBAUM, J., Dissenting 21-12729

vaccinated people. See Fisman, supra. And unvaccinated people 

infect more people, on a pro rata basis, than vaccinated people. See 

id. So Senator Broxson was mistaken: the bill doesn’t just facilitate 

transmission of COVID-19 from unvaccinated people to other unvaccinated people—it also facilitates transmission of COVID-19 

from unvaccinated people to vaccinated people. 

In this respect, this case is just like Raymond Motor Transportation, where the Court invalidated Wisconsin’s so-called highway-safety regulation because “a massive array of evidence” disproved “the State’s assertion that the regulations ma[d]e some contribution to highway safety.” 434 U.S. at 444. In an even more 

extreme way, the evidence here shows that Section 381.00316(1) 

does not safeguard the public health and safety but rather jeopardizes it. 

But Section 381.00316(1)’s violation of the dormant Commerce Clause is even more obvious than that of the law at issue in 

Raymond Motor Transportation. There, Wisconsin’s asserted interest was “promot[ing] highway safety.” Id. at 442. And as the 

Supreme Court explained, there is “no field” where “deference to 

state regulation has been greater than that of highway safety regulation.” Id. at 443. Section 381.00316(1), though, is not a healthand-safety regulation—let alone a highway-safety regulation. So it 

is entitled to less deference than the “safety regulation” in Raymond Motor Transportation. 

Even if we assumed that same deference attached to Section 

381.00316(1), though, a “massive array of evidence” still 

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“disprove[s] the State’s assertion that the regulations make some 

contribution” to health and safety. Instead, Section 381.00316(1) 

undermines public health and safety. Id. at 444. So Section 

381.00316(1) cannot seriously be described as a “bona fide safety 

regulation[.]” Kassel, 450 U.S. at 670 (plurality opinion). And Florida’s asserted interest in “safeguarding public health and safety,” 

Fla.’s Initial Br. at 1, is therefore “illusory,” Kassel, 450 U.S. at 671 

(plurality opinion); see also id. at 691 (Rehnquist, J., dissenting). 

B. Section 381.00316(1) does not prevent discrimination.

I next turn to Florida’s first of two asserted interests in promoting the economic well-being of its citizens. Florida first asserts 

an interest in “preventing discrimination for failure to provide documentation evidencing COVID-19 vaccination.” Fla.’s Initial Br. at 

2–3. But as I’ve noted, the first task in evaluating a state’s interest 

under Pike is to discern the state’s true interest. That is key here 

because “discrimination” can connote several meanings. See, e.g., 

Discrimination, Black’s Law Dictionary (11th ed. 2019); Bryan A. 

Garner, Garner’s Modern English Usage 287–88 (4th ed. 2016). 

And identifying the accurate use of the term here transforms the 

rest of the analysis. 

Skipping that step, the Majority Opinion equates discrimination based on vaccination status with “invidious discrimination” 

that “frequently occurs along ethnic lines.” See Maj. Op. at 30–31

(quoting Barez, 458 U.S. at 609); Barez, 458 U.S. at 609. From there, 

the Majority Opinion assumes parity between Florida’s interest in 

remedying noninvidious discrimination based on vaccination 

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34 ROSENBAUM, J., Dissenting 21-12729

status and a state’s interest in remedying invidious discrimination 

based on ethnicity. No matter the evil, the Majority announces, a 

state’s interest in remedying “discrimination” is always “substantial” and always “weightier” than a mere “legitimate” interest. Maj. 

Op. at 31. 

But the problem for the Majority Opinion is that, as Black’s

Law Dictionary unambiguously explains, invidious discrimination 

and noninvidious discrimination are two entirely different things. 

See Discrimination, Black’s Law Dictionary, supra; Garner, supra, 

at 287–88. And the weight of a state’s interest in remedying discrimination varies “depend[ing] on the nature” of the discrimination in need of remedying. Pike, 397 U.S. at 142. After all, the 

“question” of how much weight to accord a state’s legitimate interest is necessarily “one of degree.” Id. That makes it crucial to discern the type of discrimination that Florida’s law tries to remedy 

before assigning weight to Florida’s interest in remedying discrimination. 

I start by defining “discrimination.” In the dictionary sense, 

discrimination connotes the “intellectual faculty of noting differences and similarities.” Discrimination, Black’s Law Dictionary, 

supra (definition 1). That use of “‘discrimination’ is neutral” and 

not in any way considered pejorative. Id. But “the current political 

use of the term is frequently non-neutral, pejorative.” Id.

On that score, Black’s Law Dictionary defines “discrimination” in the pejorative sense in two ways: (1) “The effect of a law 

or established practice that confers privileges on a certain class or 

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that denies privileges to a certain class because of race, age, sex, 

nationality, religion, or disability”; and (2) “Differential treatment; 

esp., a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored.” Id. (definitions 2 and 3). 

i. Florida’s law does not remedy discrimination based on race, 

age, sex, nationality, religion, or disability.

At times, both Florida and the Majority Opinion seemingly 

invoke the first of those pejorative uses of the term, suggesting that 

Florida’s interest lies in remedying discrimination against its “minority populations” because those communities are more likely to 

face vaccine hesitancy. See Maj. Op. at 38; see also id. at 7, 45; Fla.’s 

Initial Br. at 29, 45 (“Through the statute, Florida is protecting its 

vulnerable minority populations . . . .”). But even though some 

“minority populations” have faced discrimination from certain 

parts of the medical community for decades, thus understandably 

prompting vaccine hesitancy of some in those populations, it’s hard 

to take this description of Florida’s interest at face value given the 

evidence (or more accurately, lack of it) supporting that assertion. 

That evidence, on which Florida and the Majority Opinion 

rely exclusively, is a single comment Representative Tom Leek 

made on the legislature’s floor on April 28, 2021. Aside from that 

remark, the legislative history lacks any evidence that the state intended Section 381.00316(1) as antidiscrimination legislation to 

protect Florida’s “minority populations.” No other representative 

or senator made comments to that effect. Nor do any one of the 

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36 ROSENBAUM, J., Dissenting 21-12729

six analyses of SB 2006 (the bill that became Section 381.00316) 

from the Florida Senate’s Committees on Rules, Appropriations, 

and Military and Veterans Affairs, Space, and Domestic Security 

say the first thing about protecting Florida’s “minority populations,” even though many of those analyses discuss the bill’s purported intent.

And Representative Leek disavowed any such legislative intent the day before he made the statement on which Florida and 

the Majority Opinion rely as proof that Florida enacted Section 

381.00316(1) to protect its minority populations. During the 

House session on April 27, 2021, the following exchange occurred 

when Representative Michael Grieco asked Representative Leek 

about the provision that eventually became Section 381.00316(1): 

Grieco: Chair Leek, are you familiar with what is a protected class for purposes of private businesses 

being unable to discriminate against them?

Leek: . . . That’s outside the scope of this bill, but the 

answer is yes, I’m familiar.

Grieco: With that familiarity, specifically as it applies to 

people that can’t be discriminated [against] 

based on age, disability, gender, race, religion, 

are you familiar with anywhere else in state 

statute where we have created a new protected 

class that has not been addressed through constitutional law?

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Leek: We’re pretty far afield from what’s in this bill. 

But there are protected classes created by federal law, state law, etc. So I hope that addresses your question. Just understand: that is 

not addressed in this bill.

House Session, FLA. HOUSE OF REPRESENTATIVES, at 3:00:16–

3:01:17 (Apr. 27, 2021) (emphasis added), 

https://www.flsenate.gov/media/VideoPlayer?EventID=1_ggkot7ka-202104271030&Redirect=true. In other words, 

Representative Leek appeared to deny that the bill’s purpose is to 

protect Florida’s “minority populations” from discrimination. In 

fact, Representative Leek said, “That’s outside the scope of this 

bill,” “We’re pretty far afield from what’s in this bill,” and “That is 

not addressed in this bill.” Three times Representative Leek declined to link what became Section 381.00316(1) with protecting 

“minority populations.” But see Maj. Op. at 39–40 (selectively 

quoting Representative Leek to avoid grappling with this fact).25

25 No one disputes that Florida “may recognize new protected classes beyond 

federal law.” Maj. Op. at 46. But Representative Leek, whom the Majority 

Opinion relies on exclusively to discern Florida’s legislative intent, explicitly 

denied doing so. On the contrary, he explained that recognizing a new protected class beyond federal law was “not addressed in this bill,” and the Majority Opinion twice concedes as much. Id. at 40 (“[T]he creation of a new protected class is not addressed in the bill[.]”); id. at 44 (“Section 381.00316(1) does 

not involve a constitutionally protected class[.]”). By ignoring what Representative Leek actually said and attributing that purpose to Florida’s law, anyway, the Majority Opinion “substitutes its own intuitions” for those of the 

Florida legislature. Id. at 46. Even so, even assuming (contrary to 

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38 ROSENBAUM, J., Dissenting 21-12729

To reiterate, then, the contention that Florida enacted Section 381.00316(1) as civil-rights legislation to protect “minority 

populations” relies exclusively on Representative Leek’s statement, 

which he made the day after disavowing any link between Florida’s 

law and discrimination based on age, disability, gender, race, or religion. To be sure, I do not attribute “legislative mendacity” to 

Representative Leek for his contradictory statement the next day. 

Maj. Op. at 40. On the contrary, I assume that Representative Leek 

reflected on Representative Grieco’s question the prior day and 

then concluded and asserted in good faith the next day that the bill 

protects “minority populations.” There’s certainly nothing wrong 

with that. 

But Representative Leek’s individual revelation doesn’t 

make protecting “minority populations” the intent of the Florida 

legislature in enacting Section 381.00316(1). Nothing else from the 

legislative record—neither from the multiple floor debates, Committee reports, nor any other part of the legislative history—echoes 

Representative Leek’s statement on April 28 that the intent of the 

statute was to protect “minority populations.” And “[w]hat 

Representative Leek’s repeated denials) that Florida had recognized a new 

protected class beyond those recognized by federal law, the law creating that 

class would still have to comply with the Constitution and federal law. See, 

e.g., U.S. Const. art. VI. So even if Florida passed a law recognizing a new 

protected class for unvaccinated persons, that law would be unconstitutional 

if it imposed burdens on commerce that clearly exceeded its benefits. Pike, 

397 U.S. at 142. The Majority Opinion “ignores” these “basic point[s].” Maj. 

Op. at 46.

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motivates one legislator to make a speech about a statute is not 

necessarily what motivates scores of others to enact it.” Dobbs v. 

Jackson Women’s Health Org., 142 S. Ct. 2228, 2255 (2022) (citation and quotation marks omitted). After all, one legislator’s reconsidered view alone is not the legislature’s view. 

Rather than engage with this truth, the Majority Opinion 

faults me for “ignoring the fact that [Representative Leek] was the 

‘chief sponsor of the bill in the House of Representatives,” Maj. Op. 

at 40 (quoting Clover Leaf Creamery, 449 U.S. at 467). Yet even 

the case on which the Majority Opinion relies for that claim shows 

that a single legislator—even a bill’s chief sponsor—does not speak 

for the legislature. See Clover Leaf Creamery, 449 U.S. at 467 (citing statements from three senators on top of a statement from the 

bill’s chief sponsor in the House to divine legislative purpose). Indeed, as the Supreme Court has explained, relying “on a single 

statement made on the floor of the House of Representatives” to 

“divine” legislative purpose, even in the Commerce Clause context, “is an exercise fraught with hazards,” New England Power 

Co. v. New Hampshire, 455 U.S. 331, 341–42 (1982). And that is 

especially so when, as here, the bill’s sponsor so clearly comes to 

his revelation about the bill’s purpose for the first time after the bill 

has left the committee. 

So while a dormant Commerce Clause analysis necessarily 

relies in part on legislative history, this particular use of legislative 

history is the very evil that Justice Scalia warned against when he 

explained that “Judge Harold Leventhal used to describe the use of 

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40 ROSENBAUM, J., Dissenting 21-12729

legislative history as the equivalent of entering a crowded cocktail 

party and looking over the heads of the guests for one’s friends,” 

Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring)—or more accurately in this case, for “one’s [sole and fairweather] friend[].” Justice Scalia would be disappointed. 

The Majority Opinion responds to that criticism with a non 

sequitur: It’s permissible, we are told, to rely on a single legislator’s

statement—which contradicted that legislator’s statement from 

the day before—as evidence of the legislature’s purpose (even 

though the legislature is composed of 160 legislators) because the 

Majority Opinion uses that evidence not “to determine what the 

statute means but to ensure that it serves a constitutional purpose.” 

Maj. Op. at 39. That makes no sense.26 The whole point here is to 

identify the intent of the legislature—no matter how the Majority 

Opinion describes our exercise.27 And Justice Scalia’s concern was 

26 It’s also misleadingly imprecise. To be sure, in performing the Pike dormant 

Commerce Clause balancing test, we look to see whether the law has a constitutional purpose in that if the law passes the balancing test, it comports with 

constitutional requirements under the dormant Commerce Clause. But our 

inquiry under the local-benefits side of the Pike balancing test is not whether 

the state’s purpose was constitutional in a generic sense. Even assuming it 

was, the state’s purpose can still fail the Pike balancing test. That is so because, 

as I’ve explained, once we identify the state’s actual interest as applied to the 

complaining plaintiff, we must weigh the benefits that flow from the nature 

of that interest against the burdens the law imposes on commerce.

27 The Majority Opinion insists that New England Power proves that there’s 

something meaningfully different about relying on a single legislator’s remarks to ascertain the legislative purpose when evaluating the local benefits 

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that a single legislator’s statement (even when he doesn’t say the 

opposite the preceding day) does not reveal the entire legislature’s 

intent. And it’s hard to imagine a more graphic illustration of the 

problem Justice Scalia pointed out than the Majority Opinion’s efforts to identify the Florida legislature’s intent based solely on one 

of two contradictory statements a single representative made on 

the floor. 

At bottom, there is no evidence that the legislature’s intent 

in enacting Section 381.00316(1) was to prevent discrimination 

against Florida’s minority populations. 

ii. Nor does Florida’s law remedy any other type of invidious 

discrimination.

Nor does the second pejorative use of the term “discrimination” capture the interest that Florida asserts. To reiterate, that 

definition describes the “failure to treat all persons equally when 

no reasonable distinction can be found between those favored and 

those not favored.” Discrimination, Black’s Law Dictionary, supra 

(definition 3) (emphasis added); see also CSX Transp., Inc. v. 

to the state under the Pike balancing test versus when determining what a 

statute means. See Maj. Op. at 39. It misses the point. Of course, we often 

do not rely at all on legislative history in ascertaining statutory intent, while 

the Pike balancing test requires us to consider legislative history in identifying 

the local benefits to the state. But that difference does not change the fact 

that—no matter the context in which it is wielded—a single legislator’s uncorroborated (and self-contradictory) statement simply cannot speak for the intent of the legislature as a whole. Not surprisingly, the Majority Opinion cites 

absolutely nothing for its novel premise to the contrary.

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42 ROSENBAUM, J., Dissenting 21-12729

Alabama Dep’t of Revenue, 562 U.S. 277, 287 (2011) (describing this 

definition as the “ordinary meaning” of discrimination). Applying 

this definition of “discrimination,” the Supreme Court hypothesized that taxing “one group of taxpayers a 2% rate and another 

group a 4% rate, if the groups are the same in all respects, is to 

discriminate against the latter.” Id. (emphasis added). And of 

course, remedying this type of invidious discrimination is a substantial state interest.

But that’s not a problem here. In fact, the record lacks any 

evidence of businesses’ use of vaccination status as a proxy for a 

person’s disability, religion, or race. Rather, the evidence established that Norwegian sought proof of passengers’ vaccination statuses only because that is the “most effective way to protect passengers, crews, and locals from the spread of COVID-19.” Del Rio 

Aff. ¶ 27. Put simply, differential treatment because of vaccination 

status rests on a “reasonable distinction” between vaccinated and 

unvaccinated people. Discrimination, Black’s Law Dictionary, supra (definition 3). The distinction is reasonable because unvaccinated people are substantially more likely to transmit COVID-19 

than vaccinated people, especially in the context of a cruise ship. 

See Norwegian, 553 F. Supp. 3d at 1150. 

Ignoring the reason behind Norwegian’s distinction between vaccinated and unvaccinated passengers, the Majority Opinion appears to incorrectly suggest that Florida enacted Section 

381.00316(1) to protect against invidious discrimination against unvaccinated people. Maj. Op. at 46; see also id. at 31. But this 

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betrays a misunderstanding of invidious discrimination—that is, 

discrimination when no reasonable distinction can be found between those favored and those not favored. See Loving v. Virginia, 

388 U.S. 1, 10 (1967) (equating “invidious discrimination” with “arbitrary . . . discrimination”). Nor does the Majority Opinion marshal any evidence in the record to prove otherwise. The record is 

bereft, for example, of any evidence that Norwegian desires to act 

with “class-based, invidiously discriminatory animus” towards unvaccinated passengers. Bray v. Alexandria Women’s Health Clinic, 

506 U.S. 263, 272–73 (1993) (citation omitted). That’s so because 

Norwegian’s distinction between vaccinated and unvaccinated passengers is “reasonable rather than arbitrary and invidious.” 

McLaughlin v. Florida, 379 U.S. 184, 191 (1964). Norwegian’s distinction rests on the science of infectious-disease transmission.

Consider again why Norwegian would draw such a distinction: when hundreds of passengers, including unvaccinated passengers, congregate onboard a cruise to eat, socialize, and vacation 

in close quarters for several days, that translates to more COVID19 cases than would be the case without vaccinated passengers. See 

Norwegian, 553 F. Supp. 3d at 1150–51, 1179. And that, in turn, 

means cruise operators must spend more to treat those who develop COVID-19 onboard. They also must cope with COVID-19 

outbreaks that inundate their limited health services onboard, leaving little bandwidth to deal with other health emergencies. More 

cases of COVID-19 also mean that fewer passengers can enjoy their 

vacations, making them less likely to be return customers. And 

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44 ROSENBAUM, J., Dissenting 21-12729

some passengers who become ill may die or develop long COVID 

after disembarking, causing them to suffer from debilitating, longterm effects for years to come. Not only that, but cruise passengers 

who spread COVID-19 in foreign ports create additional problems 

for cruise lines (not to mention for those who frequent those foreign ports). 

The Majority Opinion responds that I “ha[ve] it backwards” 

and that “[t]he State—not an Article III court—has the constitutional authority to determine what is and is not a ‘reasonable distinction’ between its citizens and what qualifies as discrimination 

worth remedying.” Maj. Op. at 46. It continues, “declin[ing] [my 

alleged] invitation to put . . . policy decisions in the hands of unelected federal judges.” Id. That sure sounds like a good invitation 

to decline. But it’s not one I make. Once again, the Majority Opinion contorts my analysis, fails to apply the proper test under the 

dormant Commerce Clause, and then faults me for applying that 

test, which Supreme Court jurisprudence requires. 

Of course, the state can determine “what qualifies as discrimination worth remedying.” Id. But as Pike and its progeny 

show, that doesn’t absolve us of evaluating the nature of that interest. So for example, in Pike, the Court disregarded Arizona’s asserted interest because “application of the act” to the farming-company plaintiff there had “a far different impact, and quite a different 

purpose.” 397 U.S. at 144. See also Clover Leaf Creamery, 449 U.S. 

at 463 n.7 (explaining the need to disregard a state’s asserted interest when it “could not have been a goal of the legislation.” (quoting 

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Weinberger, 420 U.S. at 648 n.16)). Indeed, as I’ve explained, the 

Pike Court’s evaluation of the nature of the state’s interest revealed 

that the state’s asserted interest—“protect[ing] and enhanc[ing] the 

reputation of growers within the State” by preventing fruit packers 

from packaging fruit in a way that misrepresented the fruit’s quality—was significantly more substantial than the nature of the 

state’s actual interest in applying its law to the farming-company 

plaintiff. See 397 U.S. at 143–46. And perhaps unlike its asserted 

interest, its actual interest was not enough to justify the burdens on 

commerce. Id. at 146. 

As Pike itself shows, evaluating the nature of the state’s actual interest is critical to proper application of the Pike balancing 

test because it allows us to ensure proper weight on the local-benefits side of the balance. And it’s simply reality that Norwegian’s 

use of vaccination status to make scientifically supported, healthbased decisions is just not the same thing at all as invidious ethnic 

or racial discrimination. So the use of Section 381.00316(1) to prevent Norwegian from requiring proof of vaccination to board a 

multi-day cruise to foreign ports is not entitled to the same weight 

on the local-benefits side of the analysis as a state law that prohibits 

invidious discrimination.

The bottom line is that Norwegian does not seek to invidiously discriminate against unvaccinated people; it seeks to distinguish between vaccinated and unvaccinated people to ensure the 

health and safety of its passengers. And that non-pejorative “discrimination” is noninvidious. It is therefore a far cry from the 

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46 ROSENBAUM, J., Dissenting 21-12729

discrimination that occurs when a doctor refuses or delays “treatment [merely] because a patient (or a parent of a patient) owns firearms.” Wollschlaeger v. Florida, 848 F.3d 1293, 1314, 1317 (11th 

Cir. 2017) (en banc)—a false equivalence the Majority Opinion suggests. See Maj. Op. at 31–32. Nor does distinguishing between 

vaccinated and unvaccinated people for health and safety purposes 

even vaguely resemble the “evils” of the “invidious discrimination” 

that “frequently occurs along ethnic lines.” Barez, 458 U.S. at 609. 

And we must reject the Majority Opinion’s unfortunate efforts to 

equate them. See Maj. Op. at 32 (treating a state’s interest in remedying both these forms of discrimination as equal); id. at 43 (defending this false equivalence). 

iii. Even assuming that Florida’s law remedies non-pejorative 

discrimination, that interest is trivial at best. 

That brings us back to the first, non-pejorative definition of 

discrimination: at best, Section 381.00316(1) remedies the “intellectual faculty of noting differences and similarities,” Discrimination, Black’s Law Dictionary, supra (definition 1), by preventing 

businesses from denying services to unvaccinated people, see Maj. 

Op. at 38 (reciting Representative Mike Beltran’s statement that 

“we have people discriminating against you if you’re not vaccinated,” (quoting House Session, FLA. HOUSE OF 

REPRESENTATIVES, at 2:24:20–2:25:00 (Apr. 28, 2021), 

https://www.flsenate.gov/media/VideoPlayer?EventID=1_rch640e3-202104281030&Redirect=true).

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And because we must evaluate the nature of the interest the 

state claims, it’s important to identify that interest precisely. See 

Pike, 397 U.S. at 145–146 (evaluating the state’s interest as the law 

applied to the company that sued in that case). Although Section 

381.00316(1) seems on its face like it protects both vaccinated and 

unvaccinated people from discrimination for failure to produce 

documentation of vaccination, that’s not so. In practice, the statute 

protects only unvaccinated people against discrimination. Only 

unvaccinated people cannot produce documentation that they are 

vaccinated. And in any case, the statute punishes businesses only 

for requiring customers to provide “documentation certifying 

COVID-19 vaccination or postinfection recovery”—not for requiring proof that customers are unvaccinated. Fla. Stat. § 

381.00316(1). 

In fact, the Florida Legislature even voted against an amendment that would have protected vaccinated people from discrimination. During the debate on the bill that became Section 

381.00316(1), Senator Jason Pizzo voiced concerns about this kind 

of discrimination. He pointed to a Miami school, for example, that 

warned students and teachers not to get vaccinated because “they 

could be contracting something . . . called shedding, which is disrupting and interrupting women’s menstrual cycles, their reproductive systems.” Senate Session, FLA. SENATE, at 6:04:22–6:06:30 

(Apr. 29, 2021). “That’s a teacher telling a student to stay away 

from their parents if they’ve been vaccinated[,]” he said. Id. “Did 

you honestly think that there was gonna be a—I didn’t—a business 

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48 ROSENBAUM, J., Dissenting 21-12729

that would say, ‘You cannot work here anymore, Teachers’; telling 

your teachers that if you choose to get vaccinated, you are not allowed to work here anymore?” Id. 

Nor was Senator Pizzo alone in voicing these concerns. 

Representative Grieco also remarked that the same Miami school, 

which received public funds, had adopted a policy preventing its 

teachers from being vaccinated and prohibiting vaccinated people 

from interacting with students. House Session, FLA. HOUSE OF 

REPRESENTATIVES, at 3:02:50–3:03:19 (Apr. 27, 2021). Yet the state 

chose not to realize an interest in preventing this type of discrimination. And when Senator Pizzo proposed an amendment to address this issue,28 the Senate voted it down.

In any case, I assume that Florida’s interest in protecting 

only unvaccinated people from “the intellectual faculty of noting 

differences and similarities” is a legitimate state interest. Discrimination, Black’s Law Dictionary, supra (definition 1). But of course, 

the nature of that evil contrasts sharply with the “evils” of the “invidious discrimination” that “frequently occurs along ethnic lines.” 

Barez, 458 U.S. at 609. Yet the Majority Opinion treats a state’s 

interest in remedying both evils as one and the same. See Maj. Op. 

at 30–31. That’s obviously a false equivalence. And discarding it 

28The proposed amendment provided, “A business, a governmental entity, or 

an educational institution may not reject, restrict, obstruct, interfere, prevent, 

or deny a person access to, entry upon, or services from a business, a governmental entity, or an educational institution because the person is vaccinated 

against COVID-19.”

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reveals that Florida’s interest is not “a substantial interest [that is]

weightier than a ‘legitimate local’ one.” Id. at 31. 

That’s especially so when we consider that Norwegian challenges Section 381.00316(1) only as it applies to cruise ships. Apparently aware of this problem for its analysis, the Majority Opinion relies on “grocery stores, restaurants, fitness gyms, clothing 

stores, barber shops and hair salons, and even pharmacies,” Maj. 

Op. at 32, to argue Florida’s interest here is substantial. But those 

establishments are irrelevant to this case because Norwegian challenges the law only as applied to cruise ships. Unlike cruise ships, 

those businesses do not transit international waters with their patrons in close quarters for days or weeks at a time. And they do not 

drop off their patrons in foreign countries or regularly have their 

patrons leave for other states or countries upon completing their 

business. 

In short, they do not present the same infectious-diseasetransmission problems that cruises do. Yet even Florida has recognized that infectious-disease-transmission issues as they relate to 

COVID-19 are not the same in all business contexts. See Section 

381.00316(5) (excepting “health care provider[s]” from complying 

with Section 381.00316(1)). For the reasons the district court found 

and I’ve explained, the cruise context is one industry where infectious-disease-transmission problems are especially significant and 

different than the infectious-disease-transmission problems in contexts like the Majority Opinion relies on.

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The Majority Opinion’s refusal to address the challenge that 

is actually before the Court betrays its lack of confidence that Section 381.00316(1) survives dormant Commerce Clause analysis as 

applied to the cruise industry. 

iv. Because Florida’s law furthers its interest in preventing discrimination only marginally, that interest is illusory.

As I have mentioned, the extent to which an interest can justify burdening interstate and foreign commerce “will of course depend on the nature of the local interest involved,” Pike, 397 U.S. at 

142. And in considering the nature of that interest, we must also 

remember that this is an as-applied challenge that seeks to enjoin 

Section 381.00316(1) only as it applies to the cruise industry. 

To that end, there’s no question that Florida’s law furthers 

its interest in preventing discrimination (if at all) only marginally. 

And that’s the death knell for Florida’s law, for a state’s interest is 

“illusory” when the law, though “designed for” a “salutary purpose,” “further[s] that purpose” only “marginally,” Kassel, 450 U.S. 

at 671 (1981) (plurality opinion); see also id. at 691 (Rehnquist, J., 

dissenting). That’s the case here for two interrelated reasons.

To begin with, this law applies to millions of cruise passengers, and only a small subset of those passengers are Floridians. 

While the cruise industry serves some Floridians, it also attracts 

many passengers from the other forty-nine states and around the

world. As I’ve noted, Florida boasts the three biggest cruise ports 

in the world, and PortMiami is among “the cruise industry’s largest 

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21-12729 ROSENBAUM, J., Dissenting 51

and most essential international ports.”29 Cruise passengers travel 

to Florida from across the globe. Many of those passengers remain 

in Florida for only the time necessary to get to and board the cruise 

ship, before leaving Florida, often sailing to international destinations, and then, right after their cruises, returning to their homes 

outside the state. So any local benefits from Section 381.00316(1)’s 

application to the cruise-ship industry are minimal and short-lived. 

Second, those benefits, minimal as they are to begin with, 

vanish soon after the cruise leaves port. Suppose a cruise ship departing from Florida does not require proof of vaccination to board 

the cruise. Instead, after leaving port, the cruise ship requires proof 

of vaccination to enter and use the common facilities. And those 

who refuse to present vaccine documents must use separately designated and inferior facilities. See Norwegian, 553 F. Supp. 3d at 

1155 (explaining that some cruise lines have already implemented 

similar practices).30

29 See supra at note 22.

30 Even if a cruise line took this approach, it could not avoid close contact between vaccinated and unvaccinated people at the beginning and end of the 

cruise—while the cruise line was subject to Florida’s law. And the crew, who 

would have to serve both unvaccinated and vaccinated people onboard the 

same ship, would also be exposed to both unvaccinated and vaccinated people. 

That problem only compounds after crew members interact with unvaccinated passengers because “the crew typically live and eat in small congregate 

places.” Norwegian, 553 F. Supp. 3d at 1151. So such an approach would not 

protect against transmission of COVID-19 from unvaccinated people to vaccinated people in the same way that verifying vaccination status would. For 

the same reasons, it would not protect people in foreign cities from COVIDUSCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 106 of 123
52 ROSENBAUM, J., Dissenting 21-12729

Even the Majority Opinion concedes that Florida’s laws 

could do nothing about this. See Maj. Op. at 50 (accepting that 

cruise lines that “impose their [vaccine requirement] preferences 

abroad ‘may continue to move freely across the Florida border’”). 

And the Majority Opinion is right to make that concession because 

a state’s law is “invalid” under the Commerce Clause when “the 

practical effect of the regulation is to control conduct beyond the 

boundaries of the State.” Healy v. Beer Inst., Inc., 491 U.S. 324, 336 

(1989). 

As applied to the cruise industry, then, Section 381.00316(1) 

protects unvaccinated Floridians from the “intellectual faculty of 

noting differences and similarities” only at the time of boarding and 

disembarking. Discrimination, Black’s Law Dictionary, supra (definition 1). After that, cruise lines are free to differentiate between 

vaccinated and unvaccinated persons at their leisure. So the conclusion that Florida’s law furthers its purpose only “marginally” is 

inescapable. Kassel, 450 U.S. at 670–71 (plurality opinion); see also 

id. at 691 (Rehnquist, J., dissenting). And Florida’s interest in preventing discrimination is thus “illusory,” id. at 671 (plurality opinion).

19 transmitted by those who leave cruise ships to visit those cities. And of 

course, it would not prevent COVID-19 cases from overrunning the medical 

services onboard and obstructing medical care for other illnesses and conditions. So such a practice would not avoid the great burdens on interstate and 

foreign commerce that Section 381.00316(1) imposes.

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To all that, the Majority Opinion’s only retort is to accuse 

me of “artificially limit[ing] the State’s interest” by focusing only 

on Section 381.00316(1)’s application to “luxury ocean liners.” Maj. 

Op. at 32. But focusing on Section 381.00316(1)’s application to 

“luxury ocean liners” is precisely what Pike requires. See Pike, 397 

U.S. at 144 (disregarding Arizona’s asserted interest because “application of the act” to the farming-company plaintiff had “a far different impact, and quite a different purpose.”); see also Norwegian, 

553 F. Supp. 3d at 1180 (enjoining Florida “from enforcing Section 

381.00316 against [Norwegian]” only). And adhering to Pike reveals that Florida’s interest in preventing discrimination is, to 

quote the Majority, “artificial[]” because it is illusory. Maj. Op. at 

32. 

C. Section 381.00316(1) does not meaningfully promote privacy.

Florida’s final asserted justification for the statute is one in 

“promoting privacy” for those who wish not to disclose their 

COVID-19 vaccine documents. There is no doubt that protecting

privacy is a legitimate state interest. 

But Florida has indicated that that privacy interest is significantly less substantial in the context of requiring proof of vaccination against deadly diseases. As Senator Tina Polsky pointed out 

during the bill’s floor debates, Section 381.00316 prohibits businesses and schools from requiring proof of vaccination for COVID19—even though businesses and schools can require, for instance, 

proof of vaccination for measles, mumps, and rubella. See Senate

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54 ROSENBAUM, J., Dissenting 21-12729

Session, FLA. SENATE., at 6:18:00–6:18:18; 6:19:53–6:20:19; 6:20:43–

6:20:49 (Apr. 29, 2021).

31

 

Time and again the Supreme Court has made clear that, 

when a state contradicts its asserted interest in other contexts, that 

fact “tends to undermine” the state’s “justification for the burdens” 

its law “imposes on interstate commerce.” MITE Corp., 457 U.S. 

at 644. In Raymond Motor Transportation, for example, the Court 

invalidated a Wisconsin statute that generally prohibited trucks exceeding fifty-five feet in length from operating on the state’s highways. 434 U.S. at 432. In so doing, the Court concluded that Wisconsin’s “assertion that the challenged regulations contribute to 

highway safety” was “undercut by the maze of exemptions from 

the general truck-length limit that the State itself allow[ed].” Id. at 

443, 445.

The same issue arose in Edgar v. MITE Corp. There, Illinois 

enacted a law requiring that certain tender offers be registered with 

31 As with those vaccinations, COVID-19 vaccines have obtained full authorization from the FDA. SeeU.S. Food and Drug Administration, FDA Approves 

First COVID-19 Vaccine (Aug. 23, 2021), https://www.fda.gov/newsevents/press-announcements/fda-approves-first-covid-19-vaccine (announcing FDA full approval for Pfizer-BioNTech COVID-19 vaccine for those 16 and 

older); U.S. Food and Drug Administration, Coronavirus (COVID-19) Update: 

FDA Takes Key Action by Approving Second COVID-19 Vaccine (Jan. 31, 

2022), https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-takes-key-action-approving-second-covid-19-vaccine (announcing FDA full approval for Moderna COVID-19 vaccine for those 

18 and older). So vaccines for COVID-19 stand on the same footing as FDAapproved vaccines for other diseases.

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the Secretary of State. 457 U.S. at 626–27. Illinois’s asserted purpose for this law was to provide greater protections for resident 

security holders than federal securities laws afforded. Id. at 644. 

But the law also “completely exempt[ed] from coverage a corporation’s acquisition of its own shares.” Id. As a result, a company 

could make a tender offer for its own stock without complying 

with the law, leaving that company’s shareholders to depend on 

only federal securities laws. Id. Yet Illinois clearly viewed those 

provisions as inadequate to protect investors in other contexts. Id. 

“This distinction [wa]s at variance with Illinois’ asserted legislative 

purpose,” the Court said, “and it tend[ed] to undermine [the 

State’s] justification for the burdens the statute impose[d] on interstate commerce.” Id. 

This case is no different. In all three circumstances, the state 

contradicted its asserted interest in other contexts, thus undermining the weight of the state’s interest. And that makes sense: when 

the legislature treats the same alleged problem differently—here, 

Florida’s inconsistent treatment of the alleged lack of privacy that 

attends a requirement to show documentation of vaccination for 

an infectious, highly contagious, potentially deadly and debilitating 

disease at business and public institutions where people must interact and share contact with one another—it suggests that the state’s 

claimed interest in remedying that problem is not as important as 

if the state addressed that interest uniformly.

So here, as in MITE Corp. and Raymond Motor Transportation, Florida has undermined its asserted interest in protecting 

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56 ROSENBAUM, J., Dissenting 21-12729

Floridians’ privacy by contradicting that interest. Florida contradicted its privacy interest because the state itself requires Floridians 

to present proof of vaccination against diseases other than COVID19 to attend schools at the very same time that Section 381.00316(1) 

prohibits cruise lines from requiring documentation of COVID-19 

vaccination. “This distinction is at variance with [Florida’s] asserted legislative purpose, and tends to undermine [Florida’s] justification for the burdens the statute imposes on interstate [and foreign] commerce.” MITE Corp., 457 U.S. at 644. 

The Majority Opinion simply ignores MITE Corp. and Raymond Motor Transportation. It doesn’t even mention them at all. 

Instead, the Majority Opinion says it is irrelevant that Florida requires disclosure of vaccination documentation for other infectious, potentially deadly, or debilitating diseases to attend school 

and other venues, while it espouses an interest in protecting the 

privacy of COVID-19 vaccination documentation. See Maj. Op. at 

47. Yet while that distinction might be irrelevant when we subject 

state laws to rational-basis review (under equal-protection or dueprocess analysis, for example), that distinction is very relevant 

when we review state laws challenged under the dormant Commerce Clause. 

To support its contrary claim, the Majority Opinion relies 

exclusively on the Clover Leaf Creamery Court’s equal-protection

analysis. See Maj. Op. at 41 (asserting “that a legislature need not 

strike at all evils at the same time or in the same way” (quoting 

Clover Leaf Creamery, 449 U.S. at 466)). The Majority Opinion 

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justifies this move, it seems, because the Clover Leaf Creamery 

Court relied on its analysis of Minnesota’s asserted interests, which 

it had “already reviewed” during its equal-protection analysis, for 

the purpose of its dormant Commerce Clause analysis. 449 U.S. at 

473. 

But the Majority Opinion’s reliance on Clover Leaf Creamery’s equal-protection analysis is wrong for three reasons. First, 

because the Minnesota law in Clover Leaf Creamery imposed only 

a “minor” burden on commerce, id. at 472, the Court didn’t need 

to engage in further analysis of the local-benefits side of Pike’s balance. Indeed, when a law imposes only a minor burden on commerce, “it follows that there cannot be a burden on interstate commerce that is ‘clearly excessive in relation to the putative local benefits’ under Pike.” Nat’l Ass’n of Optometrists & Opticians, 682 

F.3d at 1155. But when a law imposes more than a minor burden 

on commerce—and especially when a law imposes a burden on 

foreign commerce, see Wunnicke, 467 U.S. at 101—we must carefully consider the local benefits that the state law produces, before 

weighing those benefits against the law’s burdens. See Town of 

Southold, 477 F.3d at 52 (explaining the need to “remand[] for further discovery or trial where a party has offered a credible expert 

affidavit alleging a burden on interstate commerce and challenging 

the proposed benefits of the law.”). 

Second, as far as I can tell, there’s not a single other Supreme 

Court or Eleventh Circuit case that both applies Pike and employs

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58 ROSENBAUM, J., Dissenting 21-12729

rational-basis scrutiny on the local-benefits side of the equation.32 

Perhaps that explains the Majority Opinion’s choice to retcon 

dormant Commerce Clause cases to support its mistaken application of rational-basis review when analyzing Section 381.00316(1)’s 

local benefits. But as I am about to explain, the Majority Opinion 

fails to cite a single case that actually supports its incorrect contention that courts engage in rational-basis review when analyzing the 

local-benefits side of the scale under Pike. 

The Majority Opinion first revises Florida Transportation 

Services to support the proposition that Florida’s “justifications are 

not illusory if applying section 381.00316(1) ‘as written’ would ‘rationally contribute to [Florida’s] purported local benefits.’” Maj. 

Op. at 37 (quoting Fla. Transp. Servs., 703 F.3d at 1260); see also id.

at 47. In essence, the Majority Opinion says that a state’s justifications are not illusory if the state had a rational basis for believing 

that its law would “contribute to the State’s purported local benefits.” Id. at 38 (alterations adopted). But Florida Transportation 

32 When we analyze laws the United States Congress has enacted, we ask 

whether Congress could have had a rational basis for concluding that a regulated activity sufficiently affected interstate commerce to assess the constitutionality of the statute under the Commerce Clause. United States v. Lopez, 

514 U.S. 549, 556–57 (1995). And when the Supreme Court used to evaluate 

state taxes that discriminated against those out of state (the first tier of the Pike

analysis), it used to consider whether the state’s justification had a rational basis. Fulton Corp. v. Faulkner, 516 U.S. 325, 345–46 (1996). But it no longer 

does that. Id. Of course, this case involves neither of these situations, in any 

case.

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Services never said that a state’s asserted justifications are not illusory if the state had a rational basis for believing that its law would 

contribute to the state’s purported benefits. 

In fact, we never mentioned the term “rational basis” in that 

entire opinion. Nor did we cite Clover Leaf Creamery. Instead, 

we cited Raymond Motor Transportation, among other cases. And 

we explained that Miami-Dade’s “permitting practices did not further, but if anything rather disserved, the County’s purported purposes and benefits.” Fla. Transp. Servs., 703 F.3d at 1261. So, we 

reasoned, “while the local benefits identified by the County [we]re 

legitimate, the Port Director’s permitting practices d[id] not rationally contribute to these purported local benefits.” Id. at 1260. In 

other words, we used “rationally” in the sense that the state’s challenged practices did not actually further its justifications for those 

practices—not as code that we were engaging in rational-basis review. 

In the same way, the Majority Opinion distorts Kassel v. 

Consolidated Freightways to justify applying rational-basis review 

to the local-benefits side of the Pike scale. Maj. Op. at 37 (quoting 

Kassel, 450 U.S. at 671). But Kassel did not, as the Majority Opinion 

claims, “echo[]” Clover Leaf Creamery. Id. On the contrary, Kassel dealt with an Iowa highway-safety law that “tend[ed] to increase 

the number of accidents,” prompting the Court to find that Iowa’s 

asserted “safety interest” was “illusory,” 450 U.S. at 671, 675 (plurality opinion). That fact, coupled with Iowa’s “statutory exemptions,” suggested that “the deference traditionally accorded a 

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60 ROSENBAUM, J., Dissenting 21-12729

State’s safety judgment [was] not warranted.” Id. at 678 (citing 

Raymond Motor Transp., 434 U.S. at 444 & n.18, 446–47). And 

because Iowa’s law also imposed a substantial burden on interstate 

commerce, the Court held that it “violate[d] the Commerce 

Clause.” Id. at 678–79. In short, Kassel dealt with a law that imposed substantial burdens on commerce. For that reason, the 

Court had no choice but to determine whether Iowa’s law produced any benefits. And because the law did not produce any benefits, the Court held that Iowa’s asserted safety justification was illusory. 

Nor have we ever read, as the Majority Opinion suggests, 

“Kassel to command substantial deference” when a state’s safety 

benefits were illusory. Maj. Op. at 37. On the contrary, Florida 

Transportation Services applied Kassel to hold that Miami-Dade’s 

permitting practices failed the dormant Commerce Clause because 

they were, in effect, illusory, as they “did not further, but if anything rather disserved, the County’s purported purposes and benefits.” Fla. Transp. Servs., 703 F.3d at 1261 (citing Kassel, 460 U.S. at 

670).

And third, Raymond Motor Transportation preceded, and 

MITE followed, Clover Leaf Creamery. And they both teach that 

a state undercuts the weight of its asserted interest by contradicting 

that interest in other contexts. Plus, as I’ve mentioned, as far as I 

can tell, in the forty-one years since the Supreme Court issued Clover Leaf Creamery, no Supreme Court case has employed rationalbasis review to analyze a law’s local benefits under Pike. Nor does 

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any Supreme Court case abrogate or limit Raymond Motor Transportation’s and MITE’s analyses in this respect. 

The clear import of these facts is that Clover Leaf Creamery

relied on its equal-protection analysis of the state’s interests for the 

purpose of its dormant Commerce Clause analysis of those interests because the law imposed only a “minor” burden on commerce. 

449 U.S. at 473. So the Court did not need to further explore the 

local-benefits side of the analysis because it could make no difference to the outcome. After all, the minor burden couldn’t outweigh the local benefits, in any case. 

Put simply, Clover Leaf Creamery did not somehow silently 

add or substitute rational-basis review for the Pike balancing test 

or for any part of that test under dormant Commerce Clause jurisprudence. And the Majority Opinion’s efforts to rewrite the Pike 

balancing test to the contrary are inconsistent with dormant Commerce Clause jurisprudence. 

Because this case demands application of the Pike balancing 

test rather than rational-basis review, the question is whether Florida’s law imposes a burden on commerce that clearly exceeds its 

local benefits. And both MITE Corp. and Raymond Motor Transportation demand the conclusion that, by requiring Floridians to 

present proof of vaccination against other infectious, potentially 

deadly or debilitating diseases to attend school, Florida has undermined any substantiality its asserted interest in protecting Floridians’ privacy in this context may have otherwise had. For that 

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reason, Florida’s asserted privacy interest warrants less weight on 

the local-benefits side of the Pike balancing scale.

V. The substantial burden Section 381.00316(1) imposes on domestic and foreign commerce clearly exceeds any local benefits the law bestows. 

As Section IV of this dissent shows, Florida’s justifications 

for Section 381.00316(1) are illusory. But even if we assume Section 381.00316(1) could “rationally” further the interests Florida 

claims, again, a “determination that a state law is a rational safety 

measure does not end the Commerce Clause inquiry.” Kassell, 450 

U.S. at 691 (Rehnquist, J., dissenting); see also id. at 670 (plurality 

opinion); Raymond Motor Transp., 434 U.S. at 443. Rather, even 

a safety measure may be “rational” and still fail under Pike if it 

yields demonstrably trivial safety benefits while imposing a meaningful burden on commerce. And Section 381.00316(1) goes a step 

beyond that—it imposes substantial burdens on commerce.

As is clear by now, the law makes the spread of COVID-19 

significantly more likely—especially in the cruise setting, where, as 

the district court found, “a large volume of individuals in close 

quarters” spend an extended period together, presenting “many 

opportunities for person-to-person contact in crowded or indoor 

settings, such as group and buffet dining, entertainment events, 

and excursions.” Norwegian, 553 F. Supp. 3d at 1151. Del Rio also 

explained that infected passengers (whose infection may not show 

up on a COVID-19 test) can expose the local populations to 

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21-12729 ROSENBAUM, J., Dissenting 63

COVID-19 when other countries allow cruise passengers to disembark. Del Rio Aff. ¶ 19. “[M]any of these populations lack the access to healthcare and other resources,” so they “may be badly 

damaged and they may understandably blame [Norwegian] for it.” 

Id. 

But Section 381.00316(1) doesn’t just increase COVID-19 

cases onboard and in foreign ports. It also increases COVID-19 

cases around the United States and the world. “[O]nce a cruise concludes, passengers may engage in air transportation or other types 

of common transports to return home.” Norwegian, 553 F. Supp. 

3d at 1151. As a result, infected passengers can cause “widespread 

transmission and possibly ‘super spreader’ events” after they disembark from the cruise and reach their homes. Id. So Florida’s 

law doesn’t impact just Floridians—it has a nationwide and even 

worldwide impact.

And the more people who are infected with COVID-19, the

greater the burden on commerce. That’s because people who are 

confined to beds and hospitals or who are otherwise unable to 

work because of the lingering effects of COVID-19 and long 

COVID—not to mention those who die from the virus—cannot 

participate in commerce as they would if they were not infected. 

They cannot go to their jobs and schools, consume goods and services, or participate in many other commercial activities. And at 

the risk of stating the obvious, dead people can’t participate in commerce at all. Nor can people who are on ventilators or in the intensive care unit. Plus, when there are COVID-19 surges 

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(especially because of ever-more-transmissible and dangerous variants), even healthy people are more reluctant to go to work, to 

school, or on vacation.

We need only look to the well-known effects of COVID-19 

on the supply chain to understand the size of the impact large numbers of COVID-19 cases have on both interstate and foreign commerce. See, e.g., Sean Harapko, How COVID-19 Impacted Supply 

Chains and What Comes Next, EY (Feb. 18, 2021), 

https://www.ey.com/en_us/supply-chain/how-covid-19-impacted-supply-chains-and-what-comes-next (“The COVID-19 pandemic has posed significant challenges for supply chains globally.”). 

COVID-19, in short, dramatically impacted interstate commerce 

by killing and temporarily (and permanently, in many cases) disabling millions of people, keeping them out of work, school, and 

leisure activity and gravely affecting the economy.

By exacerbating the COVID-19 problem, Section 

381.00316(1) appreciably increases these harms nationwide (and 

worldwide) while bestowing negligible (if any) local benefits. So 

the provision doesn’t survive review under the dormant Commerce Clause when we balance the law’s trifling benefits against 

the enormous costs it inflicts on interstate and foreign commerce. 

“[W]here, as here, the State’s safety interest has been found to be 

illusory, and its regulations impair significantly the federal interest 

in efficient and safe interstate [and foreign] transportation, the state 

law cannot be harmonized with the Commerce Clause.” Kassel, 

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450 U.S. at 671 (plurality opinion); see also id.. at 691 (Rehnquist, 

J., dissenting). 

For these reasons, the district court did not abuse its discretion in finding that Norwegian established a substantial likelihood 

of success on its dormant Commerce Clause claim. 

VI. The remaining preliminary injunction factors also favor the 

district court’s entry of its preliminary injunction. 

Finally, I consider the remaining preliminary-injunction factors. As with the first and most important criterion, the district 

court did not abuse its discretion in concluding that Norwegian established that irreparable harm and the equities and public interest 

favored injunction.

 First, without a preliminary injunction, Norwegian will endure irreparable harm, “the sine qua non of injunctive relief.”

Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (quoting Ne. 

Fla. Chapter of the Ass’n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990)). As the district court 

noted, the undisputed record shows that, without being able to 

credibly verify vaccination status, Norwegian will suffer injury to 

its “reputation, trust, and goodwill.” Norwegian, 553 F. Supp. 3d 

at 1178. Florida has presented no evidence to refute Norwegian’s 

assertions in these regards.

On appeal, Florida suggests that Norwegian chose to stake 

its reputation on requiring vaccine documentation. But that suggestion conflicts with the uncontradicted proof that Norwegian’s 

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vaccination protocols are integral to its longstanding brand, reputation, and customer base. As Norwegian explained, it and its passengers prize safety, hygiene, and comfort. That’s why passengers 

choose to cruise with Norwegian. And less than 100% vaccination 

virtually ensures more COVID-19 cases and all the ill effects on 

safety, hygiene, and comfort that come with that. Florida also disregards that Norwegian sold at least some of its tickets for 100%-

vaccinated cruises before the legislature enacted Section 

381.00316(1).

Beyond these harms, Norwegian would suffer monetary 

losses that it couldn’t recover from the state because of its sovereign immunity, thus rendering the harm suffered irreparable. See

Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 

1268, 1289 (11th Cir. 2013) (“[A]bsent waiver by the State or valid 

congressional override, the Eleventh Amendment bars a damages 

action against a State in federal court.” (quoting Kentucky v. Graham, 473 U.S. 159, 169 (1985))). Florida has not rebutted Norwegian’s assertion that, without an injunction, it is likely to suffer significant financial losses.

 Finally, putting the general public—including Norwegian’s 

passengers and employees, the populations who greet them, and 

those around them when they travel home—at risk of exposure to 

COVID-19 poses the worst form of irreparable harm. Florida denies neither that vaccines best protect against COVID-19, nor that 

vaccine documentation best confirms vaccination status. Nor can 

Florida seriously deny that COVID-19 and long COVID can be 

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21-12729 ROSENBAUM, J., Dissenting 67

serious—and even fatal. See Ala. Ass’n of Realtors v. Dep’t of 

Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021) (“[T]he public 

has a strong interest in combating the spread of the COVID-19 

Delta variant.”). In sum, there is no shortage of irreparable injury 

here.

The equities and public interest favor an injunction, too. Because Norwegian has established likely success on its constitutional 

challenge under the dormant Commerce Clause, the balance of 

harm and the public interest weigh in its favor because “[t]he public 

has no interest in the enforcement of what is very likely an unconstitutional statute.” Odebrecht, 715 F.3d at 1290; see also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 

2006). Plus, the more people incapacitated with COVID-19 and 

long COVID, the worse the effect on interstate and foreign commerce. And that is certainly not in the public interest.

As to the equities, as I have mentioned, Norwegian has 

shown that it is likely to suffer significant financial and reputational 

harms without an injunction, and it has also shown that public 

health will be jeopardized.

By contrast, Florida has identified no public benefit from the 

continued enforcement of the statute against Norwegian, other 

than those that I’ve previously explained are not sufficient even to 

get the statute past dormant Commerce Clause review. To be 

sure, Florida asserts that it suffers an “ongoing irreparable injury” 

whenever it is “‘enjoined by a court from effectuating [a] statute[] 

enacted by representatives of its people,’” invoking its “sovereign 

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capacity” and “traditional police powers.” Fla.’s Initial Br. at 44–45 

(first quoting Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers); then citing Hand v. Scott, 888 F.3d 1206, 

1214 (11th Cir. 2018)). But those interests can be used to defend 

virtually any state statute, no matter how patently unconstitutional 

or noxious. And Florida does not deny that “the public interest is 

served when constitutional rights are protected.” Democratic 

Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019).

In sum, the district court did not abuse its discretion in preliminarily enjoining the operation of Section 381.00316(1) as applied to Norwegian.

VII. Conclusion 

For all these reasons, I would affirm the district court’s order 

granting a preliminary injunction of Section 381.00316(1) as applied 

to Norwegian. Because, in my view, the Majority Opinion incorrectly reaches the opposite conclusion, I respectfully dissent.

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