1 (Slip Opini o n) OCTOBER T ERM , 20 06 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detro it Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES

Sy llabu s UNITE D HAULE R S A S SOCIATI O N, INC., ET AL

. v . ONEI DA- H ERKIME R SOLI D WA STE MA NA GEME NT AUT H ORITY ET AL

. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECON D CIRCUIT No. 05–1 34 5. Ar g u ed Janu a r y8, 2007—D e c i ded Apr il 30, 200 7 Traditional l y, municipalitie s in re spondent Counties disposed of their

own solid wastes, often via landf ill s th a t oper ated w i th ou t per m it s an d inv i olatio nof state r e g u lation s. Fac i n ganen v i r o nmen tal c r i si s a n d a nunea s yrela t i ons h ip wit hloca l wast e ma na gementcompa n ies , th e Cou n t ies r e qu ested an d th e St ate c r e a t ed r e spon den tAu th or ity

. Th e Cou n t ies an d th e Au th or ityag r e ed th at th e Au th or ityw o u l d ma na ge a l l s o lid wa st e in the Count ies

. Priva t e ha ulers could pick u p c i tizen s ’ tr ash , bu t th e Au th or ityw o u l d pr oc ess, sor t , an d sen dit off for disposal. The Autho r ity woul d also provide other services, in

cluding rec y cli n g. If t h eAut h orit y’s opera t ing cos t s a n d deb ts e rvice were notre co uped t hrou gh t h e “ t i pping fees ” itcha rged, t h e Count ies must make up the difference. Toavoid such liability, the Counties en ac ted “flowc o n t r o l” or dinan c e s r e qu ir ingpr iv ate h a u l er s to obtai n permits to coll ect solid was t e in th e Cou n t ies an d to deliv erth e w a ste to th e Au th or i t y ’ s sites.

Petition er s, atr ade assoc i a t ionan d in div i du al h a u l ers, filed su i t u n d er42 U. S. C. §1983, alle gi n gth at th e flowc o n t r o lordin a n c e s v i o late th e Com m er c e Clau se bydisc r i min a t i n gag ain s t in ter s ta te c o m mer c e . Th eys u bmitte d ev id en c eth at w i th ou t th e or din a n c e s an d th e associated tip p ing fees, they could dispose of solid waste at out-of

state facilities for far le s s . Ruling in t h e ha ulers ’ favor, t h e Dis t rict Courtheld t h atnea r ly a ll flow cont rol la ws ha d b een ca t e gorica lly re

jec t ed in C & A Carb one, I nc. v. Clarkstown , 511 U. S

. 383, w h e r e t h is Courtheld t h a t a nordina nce forci ng ha ulers t odeliver wa s t e to a particular private facilit y dis criminat e d against intersta te com

merce. Reve r s ing, t h e S e co nd Circuithel dt h a t Carbon ea n d ot her of2 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY Sy llabu s th is Cou r t ’s s o-c alled “dor m a n t” Co mmer c e Clau se pr ec eden ts a llow fora distin c t ionbetw eenla w s th at ben efit pu blic , as opposed to pr i

vate, facilities. Held: The jud g ment is affirmed. 261 F. 3d 24 5 an d 438 F. 3d 150, affir m ed. T HE C HI EF J US TI CE delivere dthe opinion of the Court with respect to Parts I, II–A, II–B, and II–C, concludin g t h a tt h e Count ies ’ flow cont rol ordina nces , w h ich t r ea tin-s ta t epr iva t e b u s i ness int e res t s ex actly the same as out-of-state ones, do not discriminate against inter

sta t e c o mmer c e . Pp. 6–13.

(a) To det e rmine w h et her ala w viola t e s t h e dorma n tCommerce Cla u s e , t h e Courtfirs ta s ks whet h er it dis crimina t e s on it s fa ce ag ain s t in ter s tate c o mmer c e. Inth is c o ntex t, “ ‘disc r i min ation ’ sim

plymean s diff er en tial tr eat m en t of in -sta te an d ou t-of-s tate ec on omi c in ter e sts th atben efits th e for m eran d bu r d en s th e latt er .” Ore gon Waste Syst ems, Inc

. v. De partment of Envi ronmental Q u a lity of Ore. , 511 U. S. 93, 9 9

. D i sc r i min ator ylaw s moti v ated by“sim ple ec on omic pr otec tion ism” ar e su bj ec t t o a “v ir tu ally per se rule of invalidity , ” Philadelphiav. Ne w J e rsey , 437 U. S. 61 7, 624, w h i c hc a non l ybe ov er c o me by a sh ow in g th at th er e is n ooth e rmean s to adv a n c e a le

git i mat eloca l purpos e, Mai n ev. Taylor , 477 U. S. 131, 13 8. P. 6.

(b) Carbonedoes notcont rol t h is cas e . Carboneinvolv ed a flow cont rol ordina nce req u iri n g t h a ta l l nonha za rdous s o lid wa s t e wit h in a tow nbe deposited, u p onpay m en t of anabov e -mar ket tippin gfee, at a transfer facility run bya private contractor under a nagreement w i thth e tow n . See 511 U. S., at 387. Th e dissen tth er e opin ed th at th e osten s ib lypr iv ate tr an s ferstationw a s “es s en tial lya mu n i c i pal facility,” id., a t419, an d th at th is distin c t i o nsh ou ld h ave sav e d th e ordinance because favoring local go vernment is different from favor

ing apa rt icula rpriva t e compa n y. The maj o rit y ’s fa ilure t o comment on t h e pub lic-priva t edis t inct ion does not prove, a s t h e ha ulers ’ con ten d , th at th e major i tyag r eed w i thth e dissen t ’s c h a r a c t er izationo f the facility, but though t there was no difference under the dormant Commer c e Clau se betw eenlaw s fav o r i n gpr iv ate en tities an d th ose favoring public ones. Rather, the Carb one ma jor i tyav oi ded th e i ssu e because the transfer stationwas private, and therefor e the question whet h er p u blicfacilities m a y be favored was not properly before the Court

. The ma j o rit yviewed t h e ordina ncea s “j us tone more ins t a nce of loca l proces s i ng req u irement s t h a twe long have held inva lid,” id., a t 3 9 1 , cit i ng s i x local proces s i ng ca s e s involvin g dis crimina tion in favor of pr i v a t e ent e rp ris e . If t h e Court were e x t e ndin g t h is line of ca s e s t o cover dis crimina t i onin favor of loca l government , itcould b e expect ed t ohave s a id s o . Thus , Carboneca nnotb e rega rded a s hav in gdec i ded the pu blic -pr iv ate qu estion

. Pp. 6–9.3 Cite as: 55 0 U

. S. ____ (2007) Sy llabu s (c) The flowc o nt rol ordina nces in t h is c a s edo notdis crimina t e ag ain s t in ter s tate c o mmer c e . Compellin gr e ason s ju stifytr eatin g these law s differently from laws favoring particular private busi

nesses over their competitors. “[A] ny not i on of dis crimina t i on a s su mes a c o mp ar isonof su bst a n t ial l ysimil a ren tities,” General Motors Corp. v. Tr ac y , 519 U. S. 27 8, 298, w h e r e as g o v e r n m ent’s impor tan t r e spon sibil i tie s to pr otec t t h e h e alth , safety , an d w e lfar e of its c i ti

zen s setitap a r t fr om aty pic a l pr iv ate bu s i n e ss, c f

. id., at 31 3. M o r e over, i nco ntrast to l a ws fa vori ng in-stat e business over out-of-state competition, which areoften the prod uct of economic protectionism, la ws favoring loca l governm entma y b e direct ed t o wa rd a n y numb e r of legit i mat egoa l s unrela t e d t o prot ect i onis m. Here, t h eordina nces enab l e t h e Count ies t opu rs ue pa rt icula rpolicies with res p ectt o w a ste h a n d lin gan d tr eatmen t, w h ile alloc atin gth e costs of th ose policies on cit i zens a n d b u s i nes s e s a ccording t ot h e volu me of wa s t e t h ey gene ra t e . The co nt ra rya pproa ch of t r ea t i ng pub lic a n d priva t e en tities th e s a me u n d erth e dor m an t Com m er c e Clau se w o u l d lead t o unprecede nt ed a n d unb oun d ed int e rferen ce b yt h e cou r t s wit hs t at e a n d loca l gove rnment

. T h e Count ies ’ cit i zens could hav eleftt h e en t i re ma tt er of wa s t e ma na gements e rvices for t h e priva t es e ct or, in which ca s ea n y regu la t i on t h ey und ert o ok could not dis crimina te ag ain s t in ter s tate c o m m er c e . Bu t it w a s a l so opento th em to v e s tr e sponsib ility fo r the mat t er with th eir government, and to adop t flo w cont rol ordina nces t os u pportt h e governm enteffort

. Itis nott h e of

fice of t h eCommerce Cla u s e t ocont rolt h e vot e rs ’ de cis i on in t h is re ga rd. TheCourtis pa rt icula r ly hes i t a n t t oint e rfere here b e ca us e wa s t e dis p osal is t y pically a n d t r a d itionally afunct ion of loca l gov

ernmentexe r cis i ng it s police power

. N o t h ing in t h eCommerce Clau se v e st s t h e r e spon sibil i tyforsu cha polic yju dg m e n tw i thth e Federa l J u dicia r y. Fi na lly, while t h eCourt ’s dorma n tCommerce Clau se c a se s o f tenfin ddisc r i min ationw h e nth e bu r d enof state r e g u lationfall s onin ter e sts ou tside th e Sta t e , th e most palpable h a r m impos e d b yt h e ordina nces a tis s u e—more expens ive t r a s h remova l— will likely f a ll upon the very people who voted for the law s , the Coun

t i es ’ cit i zens . There is no rea s on t o s t ep ina n d ha nd loc a l b u sines s e s a v i c t or yth ey c o u l d n o t obta inth r o u ghth e politic al pr oc ess. Pp. 10– 13. R OBERTS , C. J ., delivered t h e opinion of t h e Court , exceptas t o Pa rt II–D. S OUTER , G IN SB U R G , an dB REYER , JJ ., joined that opinion in full

. S CALIA , J., filed a nopinion conc urri ng a s t oPa rt s I a n d II– A t hrough II–C. T HOMAS , J., filed an opinion concur r i ng in t h ej u d g ment

. ALI TO , J ., filed adiss ent i ng opinion, in which S TEVENS an d K ENNEDY , JJ., join ed._________________

_________________ 1 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt
NOTICE: This op i n ion is subjec t to f o rmal revi si on bef o r e publicat ion in the p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 34 5
UNITE D HAULE R S A S SOCIATI O N, INC., ET AL .,

PETITION ERS v. ON EIDA- H E R KIMER S O LID

WA S T E MA NA G E MEN TAU T H OR I TY ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Apr il 30, 20 0 7 ] C HIEF J U S TICE R OBER TS delivered the opinion of the Court, exce pt as to Par tII–D. “Flow control” ordinances require trash haul ers to de

liver solid waste to a particular waste proce ssing facility. In C & A Carbone, Inc. v. Cla rkstown , 5 11 U. S. 383 (1994), this Court struck downunder th e Commerce Clause a f l ow control ordinance that forced haulers to deliver was t e to a parti cular privateprocessin gfacility. I n this case, we face flow control ordinances quite similar to the one invalidated in Carbone

. The only s a lient differ

ence is that the laws a tissue here require haulers to brin g waste to fa cilities owned and operated by a state-create d public benefit corporati o n. We find this difference consti

tutionally significant. Disposing of trash has been a tradi

tional government acti vity fo r years, and laws that favo r the govern ment in su ch areas—but treat every private business, whether in-state or out-of-state, exactly t h e same—do not discriminate against interstat e commerce for purpos es of the Commerce Clause. Applying th e Commerce Clause test reserved for regulations that do not2 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY Opinion of t h eCourt discriminate against intersta te commerce, we uphold these ordin ances beca use any inc i dental burden they may have on interstate commerce does not outweigh the bene

fits they confer on the citizens of Oneida and Herkimer Counties. I Located in central N e w York, Oneida and Her k im e r Counties span over 2,600 square miles and are home to about 306,0 00 residents. Traditionally, each city, town, or village within the Counties has been responsible f o r dis

posing of its own waste. Many h a d relied on local land

fills, s o me i na more environmentally responsible fash ion than others. By the 198 0’s, the Counties confronted what t h ey could credibly cal la solid waste “ ‘crisis.’ ” Brief for Respondents 4. Many l o cal landfil l s we re operating with out permits and in viola t ion of stateregulations

. Sixteen were ordered to close and remediate the su rrounding environment, costing the public tens of milli ons of dollars. These envi

ronmental problems culminated in a federal clean-up action against a landfill in Oneida County; the defen

dants in that case na med over 6 00 local bu sinesses an d several municipalities and school districts as third-par t y defendants. The “crisis” extended beyond health and safety concerns. The Counties had an uneasy relationship with local waste management companies, endurin gprice fixing, pervasive overchargin g , and the i n fluence of organized crime. Dra

matic pri c e hikes were not uncom mon: In 1986, for exa m ple, a county contra cto r doubled its waste disposal rate on six weeks’ n o tice. Responding to theseproblems, th e Counties requested and New York’s Legi slature and Governor created the Oneida-Herkimer Solid Waste Management Authori t y (Authority), a public benefit corporation. See N. Y. Pub

.3 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt Auth. La w Ann. §2049–aa et seq. (West 1995). The Au

thority is empowered to colle ct, process, and dispose o f solid waste generated in the Cou n ties. §2049–ee(4). To further the Authority ’ s government al and public purposes, the Counties may impose “appropriate and reasonable limitations on competition” by, for insta n ce, adopting “local laws requiring that all sol i dwaste .

. . be delivered to a specified solid waste management-resource recover y facility.” §2049–tt(3). In 1989, the Authority and the Counties ent e red into a Solid Waste Management Agre ement, under which the Authority agreed to manage all solid waste within the Counties. Private haulers would remain free to pick up citizens’ tra sh from the curb, but t h e Authorit y would ta ke over the job of processi ng th e trash, sorting it, and sendi n g it off for di sposal. To fulfill its part of the bargain, the Authority a greed to pu rchase and develop facilities for the processing and dispos al of solidwaste an d recyclables generated in the Counties. The Author ity collected“tippingfe es” to cover its operat

ing and maintenance costs for these facilities

. 1 T h e t i p ping fees s i gnificantly exceeded those charged for waste removal on the open mark et, but they allowed the Author

ity to do more than the averag e private was t e disposer. In addition to landfill tr ansportation and soli d waste dis

posal, the f ees enab ledthe Authority to provide recycling of 33 kinds of materials, as well as composting, househol d hazardous waste disposal, and a number of other services. If the Authority’ s operating costs and debt service wer e not recouped throu gh tipping fees and other charges, th e

——————

1 Tipping fees are disposal charges le vied against collecto r s who drop off waste at a processing facility. They are called “ti ppin g” fees because ga rb a g e t ruck s lit era l ly t i p t h eir b a c k e n d t o dump outt h e ca rrie d w a ste. As of 1995, h a u l er s inth e Cou n t ies h a d to paytippin gfees of a t lea s t $8 6 per ton, aprice t h atba llooned t o a s much a s $ 1 7 2 per t o n if a pa rt icula rloa dcont a i ned more t h a n2 5 % recy clab l es .4 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY Opinion of t h eCourt agreement provided that the Counties would make up th e difference. As described, the agreement had a flaw: Citizens might opt to have their waste hauledto facilities with lower tipping fees. To avoid being stuck with the bill for facil i

ties that cit i zens voted for butthe nchose not to use, the Counties enacted “flo w con trol” ordinances requiring that all solid waste generated within the Counties be delivered to the Auth ority’ s processing site s. 2 P r i v a t e haulers must obtain a permit fro m the Auth ority to collect waste in the Counties. Penalties for noncompliance with the ordinances include permit revocation, fines, a n d imprisonment. Petitioners are United Hauler s As sociation, Inc., a trade associationmade up of sol i d waste management compa

nies, and six haulers that operate din Oneida and Herki

mer Counties when this action was filed. In 1995, they sued the Counties and the Authority under Rev. Stat. §1979, 42 U. S. C. §1 983, alleging that th e flow control laws violate the Commerce Clause by discriminating against interstate commerce. They submitted evidence

——————

2 Oneida ’ s flow cont rol ordina nce pro v ides in pa rt : “Fr o m th e time of plac emen t of solid waste an d of r e c y c l ables at t h e r o adside orot h e rdesig n ated ar ea appr ov ed byth e Cou n t yorby the Aut h orit y pur s ua ntt o cont ra ctwit ht h eCount y, o rb yapers on fo r collect ion in a ccorda ncehe rewit h , s u ch s o lid wa st e and re cyclab l es sh all be del iv e r e d to th e app r opr i ate fac ili t y , en tityorper s onr e spon si

ble fordis p osi t iondesig n ate d byth e Cou n t yorbyth e Au th or itypu r s u an t to c o n t r a c tw i thth e Au thor ity

. ” App. to Pet. forCer t

. 122 a.

The releva nt port ion of Her k imer’s flow c o nt rol ordina n c e is s u b s t a n tial lysimil a r : “Afterpl ac em en t of g a rbag e an d of r e c y c l able m ater i a l s at th e r o ad sid e oroth e rdesig n ated ar eaap pr ov ed byth e Legisla tu r e b ya per s onfor collect ion in a ccorda n ce he r e wit h , s uchga rb a g e a n d rec y clab l e ma t e rial shall be delive r ed to the appropriate facilit y designated by the Legisla

t ure, or b yt h e Aut h orit y purs ua ntt ocont r a ctwit ht h e Count y.” Id., at 135 a.5 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt that withou t the flow control laws and the associated $86

- per-ton tipping fees, they could dispose of so lid waste at out-of-state facilities for between $37 and $55 per ton, including tr ansportation. The Distric tCourt read our decision in Carbone, 511 U. S. 383, as categorically reje cting nearly allf l ow control laws. The court rule d in the haulers’ favor, enjoinin g enforcement of the Counties’ laws. The Second Circui t reversed, r e asoning that Ca rboneand our ot her dorman t Commerce Clause precedents allow for a di stinction be

tween laws that benefit public as opposed to private facili

ties. 261 F. 3d 245, 263 (2001). Accordingly, it held that a statute does not discri minate against interstate commerce when it favors local governmentat the expense of all private ind u stry. The court remanded to let the Distri ct Court decide whether the Counties’ ordinances neverthe

less placed an incidental burden on interstate commerce, and if so, whether th e ordinances’ benefits outweighed that burden

. On remandand after protracted di scovery, a Magistrat e Judge and the District Court found that the haulers di d not show that the ordinances imposed any cognizable burden on interstate c o mmerce. The Second Circuit af

firmed, assuming that the laws ex acted some toll on inter

state commerce, but finding any possible bu rden “modest” compared to the “clea r and substantial” benefits of th e ordinances. 438 F. 3d 150, 160 (2006). Beca use the Sixth Circuit hadrecently is sued a conflicting deci sion holding that a flow control ordinance favoring a public entitydoes facially discriminate against interstate commerce, see Nat i onal Solid W ast es Manage mentAss n . v. Davie ss Cty

. , 434 F. 3d 8 98 (2006), we gran ted certiorari, 548 U. S. _

__ (2006).6 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY Opinion of t h eCourt II A The Commerce Clause provides that “Congress shall have Power .

. . [t]o regulateCommerce withforeign Na

tions, and among the several Stat es.” U. S. Const., Art. I, §8, cl. 3. Although the Constitution does not in ter m s limit the power of Sta t es to regulate commerce, we have long interpreted the Commerce Clause as an implicit restraint on state authority, ev en in the absence of a conflicting federal statute. See Case of th e Sta t e F rei gh t Tax , 15 Wa ll. 232, 279 (1873); Cooleyv. Boardof W a rden s of Port of Philadelphiaex rel. Soc. for Relief of Distres sed Pilots , 12 How. 299, 318 (1852). To determine whether a law violates this so-called “dormant” aspect of t h e Commerce Clause, we first ask whether itdiscriminates on its face against interstate commerce. American Truckin g

Assns., Inc. v. Michigan Pub. Serv. Comm’n , 545 U. S. 429, 433 (2005); Fort Gratio t Sanita ry L a ndfill, Inc. v. Michi gan Dept. of Natu ral R e sources , 504 U. S. 353 , 359 (1992). In this context, “ ‘dis

crimination’ simply m e ans differential treatment of in

state and o u t-of-state economicinterests that benefits the former and burdens the latter.” Ore gon W aste Syste m s, Inc. v. De p a rtm e nt of Environme n tal Qu ality of Ore. , 5 11 U. S. 93, 99 (1994); New En ergy Co. of Ind. v. Limbach , 486 U. S. 269, 273 (19 88). Discriminatory laws motivated by “simple economic protectionism ” are subject to a “virtu

ally per se rule of invalidity,” Phil adelphiav. Ne w Je rs e y , 437 U. S. 6 17, 624 (19 78), which can only be overcome by a showing that the State has no ot her means to advance a legitimate local purpose, Mainev. Taylor , 477 U. S. 131, 138 (1986). B Following the lead of the Six t h Circuit in Da viess County , the haulers argue vigoro usly that the Counties’7 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt ordinances discriminate against interstate commerce under Ca rb one . In Carbone , the town of Clar kstown, New York, hireda private c o ntractor to build a waste transfer station. Ac cording to t h e terms of the deal, t h e contract or would operate the facility for five years, charging a n above-market tipping fee of $81 per ton; after five years , the town would buy th e facility for one dollar. The town guaranteed that the facility would receive acertain vol

ume of tra sh per year. To mak e good on its promise , Clarksto wnpassed a fl ow control ordinance requiring that all nonhaza r dous solid waste within the town be deposited at the trans fer facility. See 511 U. S., at 387. This Court struck do wn the ordinance, hol d ing that i t discriminated against interstate c o mmerce by “hoard [ing] solid waste, and the demand to get rid of it, for the benefit of the preferred proce ssing facili ty.” Id., at 392. The dissent pointed out that all of this Court’s local processin g cases involved laws th at discriminated in favor of priva t e entities, no t public ones. Id., at 411 (opinion of S OUTER , J.). Accor d ing to th e dissent, Clarksto wn’s ostensibly private tra nsfer station was “essentially a municipal facility,” id. , at 419, an d this disti n ction should have saved Clarksto wn’s ordinance because favoring local government is by its nature different fromfavoring a parti cular private company. The majority did not co mment on the dissent’s public-priva te distinction. The parties in this case draw opp o site inferences from the majority’s silence. The haulers say it proves that th e majority a g reed with t h e dissent’s charac teriz a tion of the facility, but thought there was no difference under the dormant Commerce Clause between laws fav o ring privat e entities an d those favoring public ones. T h e Countie s disagree, arguing that the majority studiously avoided the issue beca use the facility in Ca rbone was private, an d therefore the questio n whether publicfacil i ties may be8 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY Opinion of t h eCourt favored was not properly before the Court. 3 We believe the latter interpretati on of Carboneis cor

rect. As t h e Second Circuit exp l ained, “in Carboneth e Justices were divided over the fact of whethe r the favored facility was public or private, rath er than on the import of that distinction.” 261 F. 3d, at 259 (emphasi s in origina l). The Carbo n e dissent offered a number of reasons why public entities should be tre ated differently from private ones under the dorman t Commerce Clause. See 511 U. S., at 419–422 (opinion of S OUTER , J.). It is har d to suppose that the Carbone m a jority defi nitively rej e cted these arguments without explaining why. The Carbon emajority viewed Cla r ksto wn’s fl ow control ordinance as “just on e more instance of local processin g requiremen t s that we long have held invalid. ” Id., at 39 1. It then cited six local processing cases, every one of whi c h involved discrimination in favor of private enterprise. 4

——————

3 Ea ch s i de makes much of th e Carbonem a j o rit y ’s va rious des crip

tions of the f a cility. The haulers po int out that the Courttwice referred t o t h e cons t ruct ion a n d fina ncing of t h e t r a n s f er s t a t ion a s t h e t o wn’s pr ojec t. See 511 U. S., at 387 ( “ it s n e wfac ility” ), 3 9 4 (“it s pr ojec t”) ; Br ief forPeti tion er s 20 –22

. Th e Cou n t ies n o te th a tth e major i ty r efer r e d to th e tr an sferstati onas a “tow n - spon sor e d fac ility , ” Carbone , 511 U. S., at 393, a “fav or ed loc a l oper at or ,” id., at 38 9, “th e pr efer red processing facility,” a “ s ingle local pr opri etor,” and a“l ocal busines s , ” id., at 392, bu tn e v e ras a pu blicfacility. B r ief for Respondents 1 7 , n. 7. The dis s e ntha s mined t h e Carb one decision, appendix, and briefs fo r furt her ins t a nces of a llegedly s u pport ive t e rminology, post , at 4–5 (opinion of ALI T O , J.) bu t w ec o n t in u eto fin dth is du el of labels a tbes t inconcl us ive.

4 See South-Ce ntral Timb er Developme nt, Inc. v. Wu nni c k e , 467 U. S. 82 ( 198 4) (in v alida t in gAl as ka r e g u lation r e qu ir in gall Alask a nti mb er to be pr oc esse d in -st ate pr io rto ex por t); Pikev. Bruce Ch urc h, Inc

. , 397 U. S. 137 (19 70) (in v alida t i n gapplic atio nof anAr izon a statu te t o r e qu ir e Ar izon a-g r ownc a ntalou pes to b epac k ag ed with inth e Stat e before export); Toomerv. Witsell , 334 U. S. 385 (19 48) (in v ali d at i n g S o ut h Ca rolinas t at ut e req u iring s h rimp fis h erma n t o unloa d, pa ck , and stamp th eir catch before shi pping it to another State); FosterFountain Pac k ing Co. v. Haydel , 278 U. S. 1 (1 92 8 ) (in v alida t in ga9 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt The Court’s own description of the cases acknowledge s that the “of f ending local laws hoard a local resource—be it meat, shri mp, or mil k—for the benefit of lo c a l bus ines ses that treat i t .” Id., at 392 (emphasis added). If the Cou r t were exten d ing this li ne of lo cal processing cases to cov e r discrimination in favor of local government , one would expect it to have said so. Cf. Un ited S t a t es v. Burr , 25 F. Cas. 55, 165 (No. 14,693) (CC Va. 180 7) (Marsha ll, C. J.) (“[A]n opinion which is to .

. . establi s h a princi ple never before recognized, should be expressed in plain an d explicit terms”). The Carbon e majorit ys t ated tha t“ [ t]he only conc e i vable distinction” between th e laws in th e local proc essing cases and Clarks town’s flow con trol ordinance wa s that Clark

stown’s ordinance favored a singl e localbusi n ess, rather than a group of them. 511 U. S. , at 392 (emphasis added). If the Court thought Clarkstown ’s processing facility wa s public, thatadditional distinctionwas not merely “co n ceivable”—it was conceived, and discussed at length, b y three Justices in dissent. Ca r b onecannot be regarded a s having deci ded the public-private q u estion. 5

—————— Louis i a n ast at ut e prohib it ing t h e e x portof s hrimp u n les s t h e hea d s an d h u lls h a d fir s t beenr e mov e d w i th in the State); John sonv. Haydel , 278 U. S. 1 6 (192 8) (in v alidat in gan al og ou s Lou isia n asta t u t e fo r oysters); Min nesotav. Ba rb er , 136 U. S. 313 ( 1 8 9 0 ) (in v alidatin g M i n n e sota law r e qu ir in gan y mea tso ld w i t h inth e Sta t e t obe ex am in ed byanin -state in spec tor)

. Dean Milk Co. v. Madi son , 340 U. S. 34 9 (1 9 5 1 ) (inva lida t i ng loca l ordina nce req u iring all mi lk so l din the city to b e pas t eurized wit h in five miles of t h e cit ycent er)

— dis cus s e d els e where i n Car b one a n d in th e dis s e nthere, post , at 12–13—i s r e adil y distinguishable on the same ground.

5 Th e dissen ta sser t s th at th e Cou r t“lon gag o r e c o gn ized th at th e Commer c e Cl au se c a nbe v i olated bya la wth at di sc r i min ates infav o r of a state-owned monopoly.” Post , at 6. T h e au th or ityitc i tes— Scottv. Donald , 165 U. S. 58 (189 7 ) , an d Va ncev. W

. A

. Va ndercookCo. , 170 U. S. 438, 44 2 (18 98)—c er ta in lyqu alifie s as fr om “lon g ag o,” bu t doe s not support the proposition. Scotts t ru ck down t w o la w s t h a tdis crimi

nated in favor of in-state busine sse s an d against out -of-state busi

-10 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY Opinion of t h eCourt C The flow co ntrol ordinances in this case benefit a clearl y public facility, while treatingall private companies exactly the same. Because the question i s now squarely presented on the facts of the case before us, we decide that such flow control ordi nances do not discrim i nate against interstate commerce for purposes of th e dormant Commerce Clause. Compelling reasons justify treating these l a ws differ

ently from laws favoring partic u lar privat e businesses over their competitors. “C onceptually, of course, any notion of discrimination assumes a comparison of substan

tially similar entities.” Gene ral Mo tors Corp. v. Tra c y , 519 U. S. 278, 298 (1997) (footnote omitted). But States a n d municipalities are not priva t e b u sinesses—far from it. Unlike priv ate enterprise, government is vested with th e responsibility of prote c ting the health, safety, and welfar e of its citizens. See Metropolitan L ife Ins. Co. v. Massa ch u setts , 471 U. S. 724, 756 (1985) (“The State s traditionally have had gr eat latitude under their police powers to legis

late as to th e protection of the lives, limbs, health, comfort, and quiet of all persons” (internal quotation marks omit

-

—————— nes s e s ; neit her la w favored loca l govern menta t t h e expens e of a l l pr iv ate in du str y . See 165 U

. S., at 9 2

– 93, 101; Granholm v. Heald , 5 44 U. S. 460, 4 7 8–47 9 (2 005) ( d esc r ibin g Scottholding). Scottis simpl y another case like those cited in footnote 4.

Vance ac tu ally upheld“ S ou t hCa rolina ’ s monopoly overliq uor dis t ri

bu tion [,] .

. . r ejec t [in g] th e ar g u men tthat th is mon o p o lysy stem w a s unco ns t i t u t i on a lly dis crimin a t o ry.” Gra nh olm, supra, at 507 (T HOMAS , J., dissent ing) (citing Vance , supra, at 45 0 –45 2). Itw a s th e dissen tin Vance that argued that “such a state mo nopoly system constituted unco ns t i t u t i on a ldis crimina tion.” Granhol m , supra, at 5 07 (T HOMA S , J., dissen t in g) (c i t in g170 U. S., at 462 –4 68 ( o pin i onof Sh i r as, J.)). Th e Vance Courts i mply s t ruck down aregu l a t i on on direc ts h ipment s to cons umers for pers ona lus e, under t h e Court ’s excr uci a t i ngly a rca ne pr e-Pr o h ibitionpr ec eden ts. See 170 U. S., at 455. M o st tellin gl y , Vance h a r k ens bac k to a b y g o n eer a; u n til th e d i ssen ttoday , it h a d beenc i ted byth is Cou r tinon lytw o c a ses i nth e past 60 y e ar s.11 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt ted)). Thes e importantresponsibilities set state and local government apart from a typical private business. C f

. Tra c y , supra, at 313 (S CALI A , J., concurring) (“Nothing in this Court ’ s negative Commerce Clause ju risprudence ” compels the conclusion “that private mark eters engaged in the sale of natural gas are similarly situated to publ ic utility companies”). Given these differences, it does not make sense to re

gardlaws favoring lo cal govern ment and l a ws favori ng private industry with equal skepticism. As our local proc

essing cases demonstrate, wh en a law favors in-state business over out-of-state compet ition, rigorous scrutiny is appropriate because the law is often the product of “simple economic protectionism.” Wyoming v. Oklahoma , 502 U. S. 437, 454 (1992); Philadelp hia v. Ne w Jersey , 437 U. S., at 6 26–627. Laws favori ng local government, by contrast, m a y be direct ed towa rda n y number of legitimate goals unrel ated to protectionis m. Here the flow control ordinances enable the Counties to pursue particular poli

cies with re spect to the handling a n d treatme nt of was t e generated in the Counties, while allocating the costs of those pol i cies oncitize ns andbusinesses according to the volume of waste they generate. The contra ry approach of treating public and private entities the same under the dormant Commerce Clause would lead to unprecedented and unbounded interference by the cour ts with sta t e and local government. The dor

mant Com m erce Clause is not a roving license for federal courts to decide what activities are appropri ate for state and local government to unde rta ke, and wh at activitie s must be th e province of priv ate mark et co mpetition. In this case, the citizens of Oneida and Herki m er Counties have chosen the go vernment to provide waste manage

ment services, with a limited role for the priva t e sector in arranging f o r transpor tof waste from the curb to th e public facilities. The citizens could have lef tthe entire12 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY Opinion of t h eCourt matter fort h e private s e ctor, in wh ich case an y regulatio n they under took could not discrim i nate against interstat e commerce. But it was also open t o them to vest responsi

bility for the matter wi th thei r government, and to adopt flow controlordinances to suppo rt the govern ment effort. It is not the office of the Commerce Clause to control the decision of the voters on whether government or the pri

vate sector should provide waste management servi c es. “The Com m erce Clau se significantly limits the ability of States and localities to regulate o rotherwise burden th e flow of interstate commerce, but it does not elevate free trade above all other values.” Ma inev. Taylor , 477 U. S., at 151. See Exxon Corp. v. Gov e rnor of Ma ryland , 437 U. S. 117, 127 (1978) (Commerce Clause does not protect “the par t ic ular struc t ure or method of operation” of a market). We should be particul a rly hesitant to interf ere with th e Counties’efforts under the guise of the Commerce Clause because “[w]aste disposal is both t y pically and tra dition

ally a local government function.” 261 F. 3d, a t264 (case below) (Calabresi, J., c o ncurring); see USA Recycling, Inc. v. To wn of Babylon , 66 F. 3d 1272, 1275 (CA2 1995) (“Fo r ninety years, it has been settled l a w that ga rbage collec

tion and disposal is a core function of local go vernment in the UnitedStates”); M. Melosi, Garba g e in the Cities: Refuse, Reform, and the Enviro nment, 1880–1980, pp. 153–155 (1 981). Congress itself h a s recognized local gov

ernment’s vital role in waste m a nagement, making cl ear that “collection and disposal of solid wastes should con

tinue to be primarily the function of State, regional, a n d local agencies.” Resource Co nservation and Recovery Ac t of 1976, 90 Stat. 2797, 42 U. S. C. §6901(a)(4). The policy of the Sta t e of New Yo rk fa vors “ d isplac[ing] competition with regulation or monopoly co ntrol” in this area. N. Y. Pub. Auth. Law Ann. §2049–tt(3). We may or may not agree with that app r oach, but nothing in th e Commerce13 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt Clause vests the responsibility for that policy judgment with the Federal Judiciary. 6 Finally, it bears mentioni ng that the mos tpalpable harm imposed by the ordinances—more expensive trash removal—is likely to fa ll upon the verypeopl e who vote d for the law s . Ourdor m ant Com m erce Clause cases often find discrim i nation when a S t ate s h ifts the co sts of regul a tion to other States, because when “the burden of sta t e regulation falls on interests ou tsid e the state, it is unlikely to be allevi ated by the oper ation of those political re

straints normally exerted when interests wit h in the state are affected

. ” South ernPacifi c Co. v. Arizona ex rel. Sulli

van , 325 U. S. 761, 76 7–768, n. 2 (1945). H e re, the citi

zens and b u sinesses of the Counties bear the costs of the ordinances. There is no reason to step in a n d hand local businesses a victory t h ey could not obtain through th e political process. We hold that the Countie s’ flow control ordinances, which treatin-state pr ivate business interest s exactly th e same as out-of-state ones, do not “discrim i nate against interstate c o mmerce” for purposes of the dor m ant Com

merce Clause. 7

——————

6 J US TI CE T HOMAS is t hus wrong in s t a t ing t h a tour a p proa ch might suggest “a p o licy-driven p r eferencefor governmentmonopoly o v er pr iv atizat i on .” Post, a t6(opinion conc u rring in j u dg ment). Tha t is instead the preferenceof theaffected locality here. Our opinion simply r e c o gn izes th a ta l a wfav o r i n ga pu blicen tityan d tr ea tin gall pr iv at e en tities th e s a me does n o t disc r i min ate ag ain s t in ter s t a t ec o mmer c e as does ala w favoring lo ca l b u s i nes s over a ll ot hers

.

7 Th e Coun ties an d th eir amicus w e r easked at or al ar g u men tif af

firma nce wou l d lea dt o t h e “ Oneida

- Herkimer Ha mburge rS t a n d,” a ccompa n ied by a“f low co nt r o l” la w req u iring cit i zens t o purcha s e t h eir bu r g er s on ly fr om th e state -ow n e d pr oduc er . Tr . of Or al Ar g . 33–3 4 (Cou n t ies), 45 –46, 4 9

– 50 ( amicus State o f NewYo r k). We dou bt it. “The existence of major in-state inte rests adversely affected by [a law] is a pow e r f u ls a feg u a r dag ain s t legi sl ativ e abu se.” Minnesotav. Clover Leaf Creamery Co. , 44 9 U. S. 45 6, 4 73, n

. 17 (19 81). R e c o g n izin gth at loc a l g o v e rn men tmayfac ilitate a c u s tom a r yan d tr adition a l g o v e r n -Opinion of t h eCourt 14 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY Opinion of R OBERTS , C. J. D The Counties’ flow c o ntrol ordi nances are properl y analyzed under the test set forth in Pikev. Bruce Chur c h , Inc. , 397 U. S. 137, 142 (1970), which is reserv ed for laws “directed to legitimate local conc erns, with effects upon interstate commerce that are only incidental.” Philadel

phia v. Ne w Jers ey , 437 U. S., at 62 4. Under the Pike test , we will up hold a n o n d iscriminatory statute like this one “unless the burden imposed on [i nterstate] commerce is clearly exce ssive in relation to the putative local benefits.” 397 U. S., at 142; No rthw es t Ce ntralPip e l i ne Cor p . v. State Corpo ration Comm’n of Kan. , 489 U. S. 493, 525–526 (1989). After years of discovery, both the Magistrate Judge and the DistrictCou rt could not detect any disparate impact on out-of-state as opposed to in- s tate businesses. Th e Second Cir c uit alluded to, but di d not endor s e, a “rather abstract ha rm” that m a y exist because “the Counties’ flow control ordinances have removed the waste generated in Oneida and Herkimer Counties from the national market

place for waste processing services.” 438 F

. 3d, at 160. We find it unnecessary to decide whether th e ordinances impose an y incidental burde n on interstate commerce because an y arguable burden does not exceed the public benefits of t h e ordinances. The ordinances give the Counties a convenient andeffective way to finance their integrated package of wastedisposal services. Whil e “revenue generation is not a loca l interest that can justif y disc rimin a tionagain s t interstat e

—————— mentfunct ion s uch a s wast e dis p os al, wit h outrunnin ga foul of t h e Commerce Cla u s e , is ha rdly apres cription for s t at e cont rol of t h e ec on omy . In an yev en t, Con g r e ss r e tain s au th or ityu n derth e Com

merce Cla u s e a s writ t e n to regul ate in ter s ta te c o m m er c e , w h e ther en g a g e d inbypr iv ate orpu b licen titie s . It c a nu s e th is p o w e r , as it h a s in t h e pa s t , t o limitst at e us e of ex clus ive f r a nchis e s . S ee, e. g., Gib b o ns v. Ogde n , 9 Wh eat. 1, 221 (1 824).Opinion of t h eCourt 15 Cite as: 55 0 U

. S. ____ (2007)

Opinion of R OBERTS , C. J. commerce,” Carbone , 511 U. S., at 393 (emph a sis added), we think it is a cognizab le benefit for purposes of the Pike test. At the sam e time, the ordinances are more th an financ

ing tools. They incre ase recycling in at le ast two wa ys, conferring significant health and environmental benefits upon the citizens of the Counties. First, they create en

hanced incentives forrecyclin g and proper disposal of other k i nds of waste. Solid waste disposalis expensive i n Oneida-Her kimer, but the Counties accept rec y clables and many forms of hazard o us waste for free, effectively en

couraging t h eir citizens to sort th eir own tra sh. Second, by requiring all waste to be depos i ted at Authority facili

ties, the Counties have markedly increased their ability to enforce recycling laws. If the hau lers could t a ke waste t o any disposal site, achieving an equal level of enforcement would be much more costly, if notimpossibl e. For these reasons, an y arguable burden the ordinances impose on interstate c o mmerce does not ex ceed their public benefits. * * * The Counties’ordinances are exercises of the police power in an effort to ad dress waste disposal, a typical and traditional concern o f local government. The haulers nevertheles s ask us to hold that laws favoring publi c entities while treating all private businesses the same are subject to an almost per se rule of invalidity, because of asserted discrimination. In the alt e rnative, they maintain that the Counties’ laws cannot survive the more permis

sive Pike te st, because of asserted burdens on commerce. There is a common thread to these arguments: They are invitations to rigorously scru tinize economi clegislatio n passed under the ausp i ces of the police powe r. There was a time when this Cour t presumed to make such binding judgments f o r society, under the g u ise of interpretingth e Due Process Clause. See Lochnerv. Ne w Y o rk , 198 U. S.Opinion of t h eCourt 16 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY Opinion of R OBERTS , C. J. 45 (1905). We should not seek to reclaim tha tground fo r judicial supremacy u n der the banner of the dormant Commerce Clause. The judgments of the U n ited States Court of Appeals for the Second Circuit are affirmed. It is so orde red._________________

_________________ 1 Cite as: 55 0 U

. S. ____ (2007)
S CALIA , J ., co n cur ringin pa r t 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 34 5
UNITE D HAULE R S A S SOCIATI O N, INC., ET AL .,

PETITION ERS v. ON EIDA- H E R KIMER S O LID

WA S T E MA NA G E MEN TAU T H OR I TY ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Apr il 30, 20 0 7 ] J USTICE S CALIA , concu rring in part. I join Part I and Parts II–A through II–C of t h e Court’s opinion. I write separ a tely to reaffirm my vi ew that “ t h e so-called ‘negative’ Co mmerce Clause is anunjustified judicial invention, not to be expanded beyond its existin g domain.” Gene ral Motors Corp. v. Tra c y , 519 U. S. 278, 312 (1997) (S CALI A , J., concurring). “The histo r ical record provides no grounds fo r reading the Commer c e Clause t o be other than what it says—an a u thorization for Congress to regulate commerce.” Tyler Pipe Industries, Inc. v. Washin gtonState Dep t. of Re ven u e , 483 U. S. 232, 26 3 (1987) (S CALIA , J., concurring in part and dissenting i n part). I have beenwilling to enforce on stare de cisi sgrounds a “negative” self-executing Commerce Clause in two situa

tions: “(1) against a state law th at facially discriminates against interstate com m erce, and (2) against a state la w that is indistinguishable from atype of law previous ly held uncons t itutional b ythe Court.” West Lyn nCreame ry, Inc. v. Heal y , 512 U. S. 186, 210 (1 994) (S CALI A , J., concur

ring in judgment). As today’s opinion makes clear, the flow-control law at issu e inth is case meets neither condi

tion. It benefits a public entity performinga traditional local-government function and treats all p r i v ateen titi e s2 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY S CALIA , J ., co n cur ringin pa r t precisely th e same way. “Dispara t e treatment constitutes discrimination only if the objects of the disparate trea t

ment are, for the relevant pu rpo s es, similar l y situated.” Camps Newfound/Owatonna, I n c. v. Tow nof Harri son , 520 U. S. 5 64, 601 (1997) (S CALI A , J., dissenting). None of this Court’s cases concludes that public entities and pri

vate entities are similarly si tuate dfor Com m erce Clause purposes. To hold that they are “would broaden the nega

tive Commerce Clause beyond its existing scope, and intrude on a regulatory sphe re traditionally occupied by .

. . the States.” Tra c y , sup ra , at 313 (S CAL IA , J., concurring). I am unabl e to join Part II–D of the principal opinion, in which the plurality performs so-called “Pikebalancing.” Generally speaking, th e balancingof various values is lef t to Congress—which i s precisely what the Commerc e Clause (the realComme rce Clause) envisions._________________

_________________ 1 Cite as: 55 0 U

. S. ____ (2007)
T HOMAS , J

. , co ncu rrin gin j u dgment 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 34 5
UNITE D HAULE R S A S SOCIATI O N, INC., ET AL .,

PETITION ERS v. ON EIDA- H E R KIMER S O LID

WA S T E MA NA G E MEN TAU T H OR I TY ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Apr il 30, 20 0 7 ] J USTICE T HOMA S , concurring in th e judgment. I concur in the judgm e nt. Although I joined C & A Carbone, Inc. v. Clarkstown , 51 1 U. S. 383 (1994), I no longer believe it was correctl y decided. The negative Commerce Clause has no basis i nthe Constitution and has proved unwork able in practice. See Camps N ew found/Owatonna, Inc. v. Town of Harrison , 5 20 U. S. 56 4, 610–620 (1 997) (T HOMAS , J., dissenting); Tyler Pipe Indus

trie s, Inc. v. Washin gto nSta t e Dep t. of Revenu e , 483 U. S. 232, 259–2 65 (1987) ( S CALI A , J., concurring in part an d dissenting in part); Li cense Cas e s , 5 How. 504, 578–58 6 (1847) (Tan ey, C. J.). As the deba te between the majority and dissent shows, application of the negati ve Commerce Clause turns sol e ly on policy considerations, not onthe Constitution. Becaus e this Cou rt has no policy role in regulatinginterstate commerce, I would discard t h e Court’s neg a tive Commerce Clause jurisprude nce. I Under the Commerce Clause, “Congress shall have Power .

. . [t]o regulate Co mmerce with foreign Nations, and among the sever a l States, and with the Indian Tribes.” U. S. Const., Art. I, §8, cl. 3. The language of the Clause allows Cong ress not only to regulat e interstat e2 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY T HOMAS , J

. , co ncu rrin gin j u dgment commerce but also to prevent st ate regulation of interstate commerce. Sta t e Bd. of Ins. v. Todd Shipyards Corp. , 370 U. S. 451, 4 56 (1962); Gibbonsv. Ogden , 9 Wheat. 1, 210 (1824). E x panding on the interstate-com merce powers explicitly c o nferred on Congress, this Court has inter

preted the Commerce Clause as a tool for cou rts to strike down state laws that it be lieves inhibit int e rstate com

merce. But there is no basis in the Constitution for that interpretati on. The Court does not contest this point, and simply begins its analysis by appealing to stare d e cisis: “Although t h e Constitution does not in terms limit the power of St ates to reg u la te commerce, we ha ve long interpretedthe Comm erce Clause as an imp licit re

straint on state authority, even in the absence of a conflicting federal statute. See Case of the Sta t e Frei ght Tax , 15 Wall. 2 32, 279 (1873); Cooleyv. Board of Warden s of Port of Philadelphi a ex rel. Soc. for Re

lief of Di stress ed Pilo ts , 12 How. 299, 318 (1852).” Ante , at 6. The Court’ s reliance on Cooleyand State Frei gh t Tax is curious because the Court has aba ndoned the reasoning of those cases in its mor e recent jurisprudence. Cooleyan d Sta t e Freight Tax are premised upon the not i on that the Commerce Clause is an exclusive grant of p o wer to Co n gress over certain subj ect areas. 1 Cooley , su pra , a t319 – 320 (holdin gthat “[w]hatever subjects of this [Commerce Clause] power are in their nature national, or admit on l y of one unifo rm system, or plan of regulation, may justly be said to be of such a na ture as to require exclusive legisl a tion by [C]ongress” but holding that “the nature of th[e]

——————

1 This justificat ion for the negativeCommerce Cla u s eis it s e lf uns up ported by the Constitution. See Tyler PipeIndu stri es, In c. v. Was h in g ton State Dept. of Revenue , 483 U. S. 23 2, 261– 26 2 (19 8 7 ) (S CALIA , J., conc urri ng in pa rta n d dis s e nt ing in pa rt).3 Cite as: 55 0 U

. S. ____ (2007)
T HOMAS , J

. , co ncu rrin gin j u dgment subject [of state pilotage laws] is not such as t o require it s exclusive l e gislation” and th erefore upholdi n g the state laws again s t the neg a tive Com m erce Clau se challenge); Sta t e Freight Tax , sup ra , at 279–280 (applying the same rationale). The Court, however, no longer limits Congress ’ power by analyzing whether the subjects of state regula

tion “admit only of on euniform system,” Cooley , supra , a t 319. Rather, the modern jurispru dence focuses upon the way in which States regulate those subj ects to decide whether th e regulation is permissible. E.g. , ante , at 6, 1 3

. Because the reasoningof Cooley and Sta t e Freight Tax ha s been rejected entirely, they pro vide no foundation for today’s deci sion. Unfazed, the Court proceeds to analyze wh ether the ordinances “discrimin a t[e] on [their] face against inter

state commerce.” Ante , at 6. Again, none of t h e cases th e Court cites explains how the absence or presence of dis

crimination is relevant to deciding whether th e ordinances are constitutionally p e rmissible, and at l e ast one case affirmatively admits that the nondiscrimination rule h a s no basis in the Constitution. Philadelphiav. New Je rse y , 437 U. S. 617, 623 (1978) (“The bounds of these restrain ts appear nowhere in the words of the Commerce Clause, but have emerged gradually in the decisions o f this Court giving effect to its basic purp ose”). Thus cl oak e d in th e “purpose” o f the Com m erce Clause, the rule against di s crimination that the Court appl ies to decide this case exists untethered from the written Constitution. The rule instead depends upon the policy preferences of a majority of this Court. The Court’s policy preferences are an unsuitable basis for constitutional doctrine bec ause they shift over time, as demonstrated by the different theories the Court has offered to support the nondiscri mination principle. In the early years of the nondiscrimination rule, the Court st ruc k down a state healthlaw because “the en actment of a4 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY T HOMAS , J

. , co ncu rrin gin j u dgment similar statute by each one of the States composing the Union would result in the destruc t ion of commerce among the several States.” Minnesotav. Ba rber , 136 U. S. 3 13, 321 (1890); see Foster-Fountain Packing Co

. v. Haydel , 278 U. S. 1 , 13 (1928) (stating th at a Commerce Clause violation would occur if the state statute wo uld “directl y

. . . obstruct and burden inte rstate commerce”). More recently, th e Court has struckdown state laws sometimes based on its preference for nationalunity, see, e.g. , Ameri

can Trucking Assns., I n c. v. Mi chi gan Pub. Serv. Comm’n , 545 U. S. 4 29, 433 (2005) (justifyi n g the nondiscrimination rule by stating that “[o ] ur Constitution was framed upo n the theory that the peo p les of the several states must sink or swim together” (in t ernal quotation marks omitted)), and other times on the basis of antiprotectionist senti

ment, see, e. g
. , Ore gon Was t e Sys t e m s, Inc. v. Dep artm en t of Environmental Qua lity of Ore. , 511 U. S. 93, 98 (199 4) (noting the interest in “avoid[ing] the tendencies towar d economic Balk anization”); Ne w En ergy Co. of Ind. v. Li m bach , 486 U. S. 269, 273 (1988) (s tating that the negative Commerce Clause “prohibits economic protecti onism—that is, regulatory measure s design ed to benefit in-state eco

nomic interests by b u rdening out-of-state competitors”); see also Carbone , 511 U. S., at 39 0 (“The central ra tionale for the rule against di scrimination is to pro h ibit state or municipal laws whose object is local economic protection

ism, laws that would excite those jealousies and retalia

tory measu r es the Constitution w a s designed to prevent” ) ; Toomerv. Witsell , 334 U. S. 385, 403–404 (1948) (striki ng down a law that “im p ose[d] an artificial rigidity on t h e economic pattern of th e industry”)

. Many of the above-cited cases (and today’s m a jority an d dissent) rest on the erroneous ass u mption that the Court must choos e between e c onomic protectionism and the free market. B u t the Con s titution vests that fu ndamentally legislative choice in Congress. To the extent that Con

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T HOMAS , J

. , co ncu rrin gin j u dgment gress does not exercise its authority to ma ke that choice , the Constit u tion does not limit th e States’ po wer to regu late commerce. In the face of congressionalsilence, th e States are free to set the balance between protectionism and the free market. Instead of accepting t h is constitu

tional reality, the Court’s negat i ve Commerce Clause jurispruden c e gives nine Justi ces of this Court the pow e r to decide the appropriate balance. II As the fore going demonstrates, despite more than 10 0 years of negative Com m erce Clause doctrine, there is n o principled way to dec i de this case under c u rrent law. Notably, th e Court cannot and does not consid er this case “[i]n light of the language of th e Constitution and th e historical context.” Al d e nv. Mai n e , 527 U. S. 706, 743 (1999). Li kewise, it cannot follow “the ca rdinal rule to construe provisions in context.” United S t a t esv. Balsy s , 524 U. S. 6 66, 673 (1998). And with no text to constru e, the Court cannot take into a ccount the Founders’ “deliber

ate choice of words” or “their natural meaning. ” Wri ghtv. United S t a t es , 302 U. S. 583, 588( 1938). Furthermore, as the debate between the Court’s o p inion and the dissenting opinionreveals, n o case law applies to the facts of this case. 2 Explaining why the ordinances do not discriminate against interstate com m erce, the Court sta t es that “gov

ernment is vested withthe responsibility of p r otecting th e health, saf e ty, and welfare of its citizens.” Ante , at 10. Accordin g t o the Cour t, a lawfa voring in-st a te business requires rigorous scru tiny becaus e the law “ i s often the product of ‘simple economic protectionism.’ ” Ante, at 11.

——————

2 No pr ev iou s c a se ad dr esse s th e qu estio nw h e th erthe n e g ativ e Commer c e Cla u se applies to fav o r i tism of ag o v e r n m en t en tity

. I ag r e e w i thth e Cou r t th at C & A Carb one, In c. v. Clark s to wn, 511 U. S. 383 (199 4), did n o t r e solv e th is issu e. An te , at 6–9.6 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY T HOMAS , J

. , co ncu rrin gin j u dgment A law favoring local governme nt, however, “may be di

rected towa rd any num ber of le giti mate goals unrelated to protectionism.” Ibid

. This disti n ction is r a zor thin: In contrast to today’s deferentia l approach (apparently based on the Court’s trust of loca l government), the Court has applied the equivalent of strict s crutiny in other cases even where it is unchallenged that the state law discrimi

nated in favor of in-st a te private entities for a legitimate, nonprotectionist reason. See Barber , supra, at 319 (strik

ing downt h e State’s inspection law for liv estock eve n though it did not challenge “[t]he presumpti o n that thi s statute was enacted, in good faith, .

. . to protect the health of the people of Minnesota”). In Carbone , which involved discrimination i nfavor o f private entities, we did not doubt the good faith of the municipality in attem p ting to de al with wa ste througha flow-control ordinance. 511 U. S. , at 386–38 9. But we struc kdow nthe ordinance because it did not allow inter

state entities to participate in waste disposal. Id ., at 390– 395. The majority di stinguishes Carboneby deciding that favoritism of a govern ment mo nopoly is less suspect tha n governmentregulation of private entities. 3I s ee no bas is for drawing such a conclusion, which, if anything, suggests a policy-driven preference fo r gov e rnment monopoly over privatizatio n. Ante , at 12 (stating that “waste disposali s both typica lly and tra ditionally a local government func

tion” (alter ation and internal quotation mar k s omitted) ). Whatever t h e reason, the choice is not the Court’s t o make. Like all of the Court’ s pre vious negative Commerce Clause cases, today’s decision leaves the future of stat e and local regulation of commerce to the whim of the Fed

-

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3 The dis s e nta r gues t h a ts u c haprefe renceis unwa r r a n t e d. Post , at 11 (opin ionof Alito, J.) (“I c a n n o t ac c e pt th e pr oposit ionth at law s dis crimina t i ngin favo r of s t a t e-owned ent e rpris e s a r e s ounlikely t ob e the product of economic pr otec tion ism th a tth eysh ould be exempt from th e u s u a l dorman t Com m er c eClau se stan dar d s”).7 Cite as: 55 0 U

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T HOMAS , J

. , co ncu rrin gin j u dgment eral Judiciary. III Despite its acceptanc e of negative Commerce Clause jurispruden c e, the Co urt ex presses concern about “un

precedented and unbounded interference by the courts with state a n d local government.” Ante , at 11. It explains: “The dormant Commerce Clause is not a roving li

cense for federal court s to decide what a ctivi ties are appropriate for state a n d local government to under

take, and what activiti es must be the province of pri

vate marke tcompetition.

. . . . . “There is no reason to step in and hand local busi

nesses a vic t ory they co uld not obtain through the po

litical process.” Ante, a t11, 13. I agree that the Comm erce Clause is not a “ro ving license” and thatth e Court sho u ld not deliver to busi n esses victo

ries that th ey failed to obtain through the poli tical proces s. I differ with the Court because I believe its powerful rhetoric is completely undermined by the doctrine it applies. In this regard, the Court’s analo gy to Loch nerv. New York, 198 U. S. 45 (1 905), suggests that the Court should reject the n e gative Co mmerce Clause, rather than twe a k it. Ante , at 15. In Lochner the Court locat e d a “righ t of free contract” in a constitutionalprovision that says noth

ing of the sort. 198 U. S., at 57. The Cou rt’s negative Commerce Clause jurisprudence, created from whole cloth , is just as illegitimate as the “right” it vindicated in Lochner

. Yet today’s decision does not repudiate that doctrinal er ror. Rather , it fur t her propagates the error b y narrowing the negativ e Co mmerce Clause for policy rea

sons—reasons that later majori ties of this Court may find to be entirel yillegitimate.8 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY T HOMAS , J

. , co ncu rrin gin j u dgment In so doing, the majorit y revisits familiar territory: Just three years after Lochn e r , the Cour t narro wed the right of contractforpolicy reason s but did not overru le Lochner

. Mullerv. O regon , 208 U. S. 412, 422–423 (1908) (uphold

ing a maxi mum-hours requirement for women because the difference between the “two sexes” “justifies a difference in legislation”)

. Like th e Muller Court, tod a y’s majori t y trifles with an unsound and illegitimate jurisprudence yet fails to aba ndon it. Because I b e lieve that the po wer to regulate interstat e commerce is a power g i ven to Congress and n o t the Cour t, I concur in the judgme nt of the Court._________________

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ALITO , J., dissenting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 34 5
UNITE D HAULE R S A S SOCIATI O N, INC., ET AL .,

PETITION ERS v. ON EIDA- H E R KIMER S O LID

WA S T E MA NA G E MEN TAU T H OR I TY ET AL

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Apr il 30, 20 0 7 ] J USTICE ALITO , with whom J USTICE S T EVEN S an d J USTICE K E NNEDY join, dissenting. In C & A Carbone, I n c. v. Cla r kstown , 51 1 U. S. 383 (1994), we held that “a so-called flow control ordinance, which require[d] all solid waste to be processed at a desig

nated tran s fer stationbefore leaving the municipality,” discriminated against interstate c o mmerce and was inv a lid under the Commerce Clause because it “depriv[ed] competitors, including out-of-state firms, of access to a local market.” Id., at 386. Because the provisions chal

lenged in this case are essentiall y identical to the ordi

nance invalidated in Carbone , I respectfully d i ssent. I This Court has “inter preted the Commerce Clause to invalidate local laws that impose commercial barriers or discriminate against an article of commerce by reason o f its origin or destination out of State.” Id., at 390. As th e Court ackn owledges, a law “ ‘ “di s criminat[es]” ’ ” in this context if it mandates “ ‘differenti a l treatment of in-state and out-of-state economic interests’ ” in awa y “ ‘that bene

fits the for m er and bu rdens the latter.’ ” An te , at 6 (qu o t

ing Or egonWas t eSys t ems, Inc. v. De par tm ent of Envi

ronmental Quality of Ore. , 511 U. S. 93, 99 (1 994)). A local2 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY ALITO , J., dissenting law that discriminates agains t interstate c o mmerce is sustainable only if it se rves a legiti mate local purpose tha t could not b e served as well by no ndiscriminatory means

. Mainev. Taylor , 477 U. S. 131 (1986). “Solid waste, even if i thas no value, is anarticle of commerce.” Fort Grati o t SanitaryLandfill, I n c. v. Michi

gan Dep t. of Natural R esource s , 504 U. S. 353, 359 (1992). Accordin gly , laws that “discriminate against [trash] by reason of it s origin or destination out of State,” Carbone , 511 U. S., at 390, are sustainable only if they serve a legitimate local purpose that could not be served as wel l by nondiscriminatory means. In Carbone, this Court invalidated a local ordinance requiring all nonhaza r dous solidwaste in Clarksto wn , New Yor k , to be deposited at a spe c ific local transfer facil

ity. The Court concluded that the ordinance discriminated against int e rstate co mmerce because it “h oard[ed] solid waste, and the demand to get ridof it, for the benefit of the preferred processing facility.” Id., at 392. The Court explained that the flow-control o r dinance di d serve a pur p ose that anonprotect ionist regulation would not: “It ens u res that the town-sponsored facility will b e profitable, so that the local contr a ctor canb u ild it and Clarksto wncan buy it back at no minal cost i nfive years.” Id., at 393. “In other words .

. . the flow con trol ordinance is a financing measure.” Ibid. The Court concluded , however, t hat “reven u e generati on is not a local interest that can justify discrimination against interstate com

merce.” Ibid. The Court also h e ld t hat “Clarks t own has any number of nondisc r iminatory alternatives for ad dressing the health and environmental prob lems alleged to justify the ordinance”—including “uniform safety regu lations” that could be enacted to “ensure that competitors .

. . do not underprice the market by cutting corners on environ

mental saf e ty.” Ibid. Thus, the Court invalidated the3 Cite as: 55 0 U

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ALITO , J., dissenting ordinance because any legitimate l o cal interes t s served by the ordinance could be accomplished through nondiscrimi

natory means. See id ., at 392–393. This case cannot be meaningfully distinguished from Carbone

. As the Court itself acknowledge s , “[t]he only salient difference” between the cases is that the ordinance invalidated in Ca rbonediscrimin a ted in fav o r of a pri

vately own e d facility, whereas the laws atissue her e discriminate in favor of “facilit ies owned and o p erated by a state-create dpublic benefit corporation.” Ante , at 1. The Court relies on the dist inction between public and privat e ownership to uphold the flow-control laws, even though a straightforward a pplication of Carbonewoul d lead to the opposite result. See ante, a t10 –12. The public-priva te distinction drawn b ythe Court is both illus o ry and wi th

out precedent. II The fact that the flow control laws at issue discriminate in favor of a government-ownedenterprise does not mean

ingfully distinguish this case from Carbone

. The preferred facility in Carbone wa s, to be sure, nominall yowned b ya private contractor who had built the facility o nthe town ’s behalf, but it would be misleadingto describe the facility as private. In exchange for the contractor’s promise to build the f a cility for the town free of charge and then t o sell it to the town five years later for $1, the town guaran

teed that, during the first five years of the fa cility’s exis

tence, the contractor would receive “a minimum wast e flow of 120 ,000 tons per year” and that the contractor could charge an above- m arket tipping fee. 511 U. S., at 387. If the facility “received less than 120,000 tons in a year, the t o wn [would] make up the tippingfee deficit.” Ibid

. To prevent residents, businesses, and trash haulers from takin gtheir wa ste elsewhere in pursuit of lower tipping fees (leaving the townresponsible for covering an y4 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY ALITO , J., dissenting shortfall in the contra ctor’s guar anteed revenue stream), the town en acted an ordinance “re quir[ing] all nonhazard

ous solid waste within the town to be deposited at” the preferred fa cility. Ibid

. This Court observed that “[t]he object of this arrange

ment was t o amortize the cost of the transfer station: The town would finance its new f a cili tywith the income gener

ated by the tipping fees.” Ibid. (emphasis added). “In other word s,” the Cou rt ex plained, “the flowcontrol ord i

nance [wa]s a financing measure,” id ., at 393, for what everyone—including the Court—regarded as the to wn’ s new transfer station. The only re al difference between the facility at issue in Carbonean d its counte r partin thi s case is th at title to t h e former hadnot yet fo rmally pas s ed to the municipality. The Court exalts form over subst ance in adopting a test that tu rns on this technical distinction, parti cularly sinc e, barring any obstacle pr esented by state law, the transac

tion in Carbonecould have been restructu red to provid e for the passage of titl e at the beginning, rather than the end, of the 5-year period. For this very reason, it is not surprising that in Carbon e the Court did not dispute the dissent’s obs e rvation that the preferred facility was for all practical pu rposes owned by the municipality. See id., at 419 (opinion of S OUTER , J.) (“Clarksto wn’s transfer station is essential l y a municipal facility”); id ., at 416 (describing the nomina l “proprietor” of the transfer st ation as “essentia lly an agent of the municipal gover n ment”). T o the contra ry, the Court repeatedly referred to the tr ansfer station interms sug

gesting tha tthe t r ansf e r station d i d in factb e long to th e town. See id., at 387 (explaining that “[t]he town would finance its new facility with the income generated by th e tipping fees” (emphasis added)); id ., at 393 (observing tha t the challen g ed flow-control ordinance was designed to “ensur[e] that the to wn-sponsored facility will be profit

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ALITO , J., dissenting able”); id ., at 394 (concluding tha t , “having e l ected to use the open mark et to earn revenues for its proje ct, the town may not e m ploy disc riminatoryregulation to give th at project an advantage over rival businesse s from out of State” (emphasis added)). Today the Court dismisses those statements as “at best inconclusive.” Ante , a t8, n. 3. The Court, however, fails to offer any explanation as to wh at other meaning coul d possibly attach to Ca rbone ’s repeat ed references to Clark

stown’s tra nsfer station as a mu nicipal facility. It also ignores the fact tha tthe ordinance itself, which was in

cluded in its entirety in an appendix to the Court’s opi n ion, repeat edly referred to the station as “the Town of Clarksto wnsolid waste facility.” 511 U. S., at 396, 398, 399. The Court like w ise fails to acknowle dge tha tthe parties in Carboneopenly ack n owledged the municipa l characterof the transfe r station. See Pet. forCert., O. T

. 1993, No. 92–1402, p. 5 (“ Thetown’sdesignated tras h disposal facility is oper ated by a private contractor, under an agreement withthe town” (em p hasis added)); B r ief for Petitioner, O. T. 1993, No. 92–1402, p. 26 (arguing that “it is clear that the pur p orted safetyand health benefits of [the flow co ntrol ordinance] derive simply from the contin

ued economic viabilit y of the to wn’s waste facility” (em

phasis added; internal quotation marks omit ted)); Brief for Respondent, O. T. 19 93, No. 92–1402, p. 8 (“The Town entered into a contra c twith Clar kstownRec y cling, Inc., which provided for that firm to build and operate the new Town facility” (emphasis added)). I see no ambiguities inthose statements, much less any reason to dismiss them as “at best inconclusive”; they reflect a clear understa n ding that the station was, for all purposes relevant to the dormant Commerce Clause, a municipal facility.6 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY ALITO , J., dissenting III In any event, we have never treated discriminatory legislation with greater deference simply because the entity favor e d by that legisl ation was a government-owned enterprise. In suggesting ot herwise, the Court relies un

duly on Carbone ’s pa ssing observ ation that “ ‘offending local laws hoard a local resource—be it meat, shrimp, or milk—for the benefit of local busines ses .’ ” Ante , at 9 (emphasis i noriginal). Carbone ’s use of the word “busi

nesses,” the Court insists, somehow reveals that Carbon e was not “extending” our do rmant Commerce Clause juris

prudence “ t o cover disc riminatio n in favor of l o cal govern

ment.” Ibid

. But no “ext en[sion]” was re quired

. The Cour t has long subjected discriminatory legisl ation to strict scrutiny, an d has never, until today, recognized an exception for dis

crimination in favor of a state-owned entity. A This Courtlong ago recognized that the C o mmerce Clause can be violated by a law th at discriminates in favor of a state-owned monopoly. In the 1890’s, South Carolina enacted laws giving a state agency the exc l usive right to operate facilities s e lli ng alcoholi c beverages within th at State, and these laws were challenged under the Com

merce Clause in Sco tt v . Donald , 165 U. S. 58 (1897), a n d Vancev. W. A. Vandercook Co. , 17 0 U. S. 438 (1898). The Court heldthat the Commerce Clause barred the St ate from prohibiting its residents from purch asing alcohol from out-of-state vendors, see id

. , at 442, but that the State could surmount this problem by allowing residen t s to receive out-of-state shipme nts for their personal use. See id ., at 452. The Court’s ho lding was based on the same fundamental dormant Com m erce Clause principle7 Cite as: 55 0 U

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ALITO , J., dissenting applied in Carbone

. 1 As the Court put it in Vance , a State

“ ‘cannot discriminate against the bringing of [lawful] articles in and importin gthem f r om other S t a t es’ ” becaus e such discri mination is “ ‘ahindra nce to inte rstate com

merce and an unjust preference of the products of the enacting State as a g ainst similar produ cts of oth e r States.’ ” 1 70 U. S., at 443 (quoting Scott , su pra , at 101 ). Cf., Carbon e , supra , a t390 (the Commerce Clause bar s state and local laws t hat “impose commercial barriers or discriminate against an article of commerce by reason o f its origin or destinationout of State”). Thus, were it not for the Twenty-fi rst Amend m ent, laws creating state-owned liquor monopoli es—which ma ny States maintain today—would be deemed discriminatory under the dormant Commerce Clause. See Granholm v. Heald , 544 U. S. 460, 489 (2005 ) (explaini n g that th e Twenty-fi rst Amendme n t makes i tpossible for Sta t es t o “assume direct control of liquo r dis tribution through state

run outlets”); see id., at 517–518 (T HOMAS , J ., dissenting) (noting that, although laws cre ating a “state monopoly” in the sale of liquor “discriminat[e]” against int e rstate com

merce, they are “wit h in the ambit of the Twenty-fi rst Amendment” and are therefore immune from scrutiny under the dormant Commerce Clause). There is, of course, no comparable provision in the Constitution authorizing States to discriminate against out-of-state providers of waste proce ssing and disposal services, either by means of a government-owned monopoly or otherwise.

——————

1 See Granhol m v. Heald , 5 44 U. S. 46 0, 517 –5 18 (2 005 ) (T HOMAS , J., dis s e nt ing) (“Thes e liq uor regula t i on s chemes dis crimina t e d a g a i nst out-of-state e c onomic interests

. . . . State monopolie s that did not permitdirect s h ipment s t o cons umers , for exa m ple, w e re t h oughtt o discriminate a g ainst out-of-s tate wholesa le rs and retailers . . .” (citing Vance, 170 U. S., at 451 –45 2 )).8 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY ALITO , J., dissenting B Nor has th is Court ev er suggested that disc riminator y legislationfavoring a state-owne d enterprise is entitled t o favorable treatment. To be sure, state-owned entities are accorded s p ecial status under the marke t -participan t doctrine. B u t that doct rine is not applicable here. Under the market-pa r ticipant doc trine, a St ate is per

mitted to exercise “ ‘in d ependent discretion as to parties with whom [it] will dea l .’ ” Reeves, Inc. v. Stake , 447 U. S. 429, 438–439 (1980). The doctrin e thus allows States to engage in c e rtain otherwise-discri minatory practices ( e.g
. , selling excl usively to, or buying exclusivel y from, the State’s ownresidents), so long as t h e State is “acting as a market participant, ra ther than as a m a rket regula tor ,” South-Cen t ral Timbe r Deve lopmen t, Inc. v. Wunnicke , 467 U. S. 82, 93 (1984) (emphasis added). Respondents are doing exactly what the mark etparticipant doctrine s a ys theycannot: While acting a s market participants by operat ing a fee-for-service business enterprise in an area in which there is an established interstate market, re spondents are also regulating th at market in a discriminatory manner and claiming that their special governmental st atus somehow in sulates them from a dormant Commerce Clause challeng e. See ibid

. Respondents insist that the mar k e t -participan tdoct rine has no application here because they are not asserting a defense under the ma rket-pa rtici pant doc tri ne, Brief for Respondents 24–25, bu t that argu ment misses the point. Regardless of whether respondents can assert a defense under the market-pa r ticipant doc trine, this Court’s cases make clear that States cannot dis criminate a g ainst inter

state comm erce unless they a r e a cting solelyas mar k et participant s. Today, howeve r, the Court suggests, con

trar yto its prior holdings, that Sta t es can disc riminate in favor of in-state interests wh ile acting both as a market participant andas a market regul a tor.9 Cite as: 55 0 U

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ALITO , J., dissenting IV Despite pre c edent condemning discrimination in favor of government -owned enterprise s, the Court attempts t o develop a l o gical justification fo r the rule it creates today. That justif ication rests on thre e principal assertions. First, the Court insists that it simply “does not make sense to regard laws f a voringlocal government and la ws favoring pri v ate industry with equal skepticism,” because the latter are “often the product of ‘ s imple economic pro

tectionism,’ ” ante , a t 10–11 (quoting Wyoming v. Okl a homa , 502 U. S. 437, 454 (1992)), while the former “may be directedtowar dan y numbe r o f legitimate goals unre

lated to protectionism,” ante, at 11. Second, the Court reasons that deference to legisl ation discriminating in favor of amunicipal landfill is especially appropria t e considering that “ ‘[ w] aste disposal is both typically a n d traditionally a local government function.’ ” Ante , at 12 (quoting 261 F. 3d 245, 264 (CA2 2001) (Calabresi, J. , concurring) )

. Third, th e Court sug g ests that r e spondents’ flow-control laws are not discriminatory b e cause they “treat in-st a te private business interests exac tly the sam e as out-of-st a te ones.” Ante , at 13. I find each of thes e arguments unpersuasive. A I see no basis for the Court’s assumption that discrimi

nation in f a vor of an in-state facility owned by the gov

ernment is lik ely to s e rve “legitimate goals unrelated to protectionism.” Discri mination in favor of an in-state government facility se rves “ ‘ l ocal economic interests,’ ” Carbone , 5 11 U. S., a t404 (O’Connor, J., concurring i n judgment) (quoting Raymond Motor Tran sp., Inc. v. Rice , 434 U. S. 429, 444, n. 18 (1978)), inuring to the ben e fit of local residents who are employed at the facility, local businesses that supply the facility with goods and ser

vices, and l o cal workers employedby such businesses. It10 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY ALITO , J., dissenting is thereforesurprising to read in t h e opini o n of the Court that state discrimination in fa vor of a state-owned business i s not likely to be motivated by economic protectionism. Experience in other countries, wh ere state ownership is more common than it is in thi s country, teaches that governments often discriminate in favor of state-owned businesses (by shielding them fro m international competi

tion) precisely for thepurpose o f protecting those who derive economic benefi ts from tho s e business e s, including their employees. 2 Suc hdiscrimin a tion amounts to eco

nomic protectionism in any realistic sense of t h e term. 3 By the same token, discrimination infavor of an in

state, priva t ely owned facility may serve legitimate ends, such as th e promotion of public health and safety. For example, a State might enact legislation discriminating in favor of produce or livestock gro w n within the State, rea

soning thatthe S t ate’s inspectors can more easily monitor the use of p e sticides, fertilizers, an d feed onfa rms within the State’s borders. Such legislation would almost cer

tainly be un constitutional, no twithstanding its potential to promote public healthand safet y . See Philadelphiav.

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2 See, e.g
. , O w e n , S un, & Zhe ng, Ant i t rus tin China : The Prob lem of In c e n t iv e Compat ibil ity , 1 J. of Compe t itionL. & Ec on . 123, 131

– 133 (200 5); Q i n , WTO Reg u lati onof Su bsidie s to S t a t e-ow n e d En ter p r i ses (SOEs)—A Critical Apprais a l of the Chin a Accession P r otocol, 7 J. of In t’l Ec on . L. 8 63, 869 –8 76 ( D ec . 2004).

3 It therefore seems strange that the Commerce Clause, which has h i stor ic allybe enu n d er stood to pr otec t fr ee tr ade an d pr oh ibit Sta t es from “plac[ing] [themselves] in a position of econ omic isolation,” Bald

winv. G. A. F. Seeli g

, In c. , 294 U. S. 5 11, 52 7 (19 3 5 ) , is n o wbein g cons t rued t o condone b l a t a n t l y prot ect i onis tla ws on grounds t h a t s uch legis l at ion is neces s a ry t o supportgover n m ent a lefforts t o comma n deer th e loc a l mar k et fora par t ic u l arg o od orserv ic e. In adoptin gth a t cons t ruct ion, t h e Courts e nds ab o ld and ent i cing mes s a g e t oloca l g o v e rn men t s t h r o ugh o u tth e Un ited S tate s: Pr otec tion is t legi sl ationi s now permis s i b l e, s o long a s t h e ena c t i ng gove rnme n texcludes all private-sector participants fromt h e a ffect ed loca l ma rket.11 Cite as: 55 0 U

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ALITO , J., dissenting New Je rsey , 437 U. S. 617, 627 (1978) (noting tha tth e Court has repeatedly invalidated legislation where “a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the Sta t e from th e national economy”). The fallacy in the Court’s approac hcan be illustrated by comparing a law that discriminates in favor of an in-state facility, owned by a co rporatio n whose shares are publicly held, and a law discri minating in favor of an otherwi se identical facility that is owned by the Sta t e or municipal

ity. Those who are favored and disfavored by these two laws are essentially the same with one major exception: The law favoring the corporate facility presumably ben e fits the co rporation’ s shareholders, most of whom are probably not local resid e nts, whereas the law f a voring the government-owned facility pres umably benefit s the people of the enacting Sta t e or municipality. I cannot understan d why only t h e former law, and not the latter, should be regarded as a tool of economic protectionism. Nor do I think it is realistic or consis tent with our precedents to condemn some discriminatory laws as protec tionist while upholding other, equally discriminatory laws as lawful measures designed to serve legitimate local interests unrelated to protectionism. For these reasons, I c annot acce pt the proposition that laws discri minating in favor of state-owned enterpris e s are so unlik ely to be the prod uct of economic protectionism that they s h ould be exempt from the usual dormant Com

merce Clause standards. Proper analysis under the dormant Commerce Clause involves more than an i nquiry into whether th e challenged Act is in some sense “ d irected to ward . . . legitimate goals unrelated to protectionism” ; equ a lly important are the means by which thos e goals are realized. If the chosen means take the form of a statute that discriminates against int e rstate co mmerce—“ ‘either on its face or in12 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY ALITO , J., dissenting practical ef fect’ ”—then“the burde n falls on [t he enacting government ] to demonstrate bo th that the statute ‘ s erves a legitimate local purpose,’ and tha tthis pur p ose could not be served as well by a v ailable nondiscriminatory means.” Taylor , 477 U. S., at 1 38 (quoting Hughe sv. Oklahoma , 441 U. S. 322, 336 (1979)). Thus, if th e legislative meansare themselves discrimi

natory, then regardless of ho w legitimate and nonprotec

tionist the underlying legislative goalsmay be , the legisla

tion is subj ect to strictscruti ny. Similarly, the fact that a discriminatory law “may [in so me sense] be directed to

ward any n u mber of legitimate goals unrelat ed to protec

tionism” does not mak e the law nondiscriminatory. The existence of such goals is relevant, not to whether the law is discriminatory, but to whether the law can be allowed to stand even though itdiscriminates against intersta te commerce. And e v en then, the existence of legitimate goals is n o t enough; discriminatory legislation can be upheld onl ywhere such goals cannot adequately be achieved through nondiscriminatory means. See, e.g. , Philadelphi a, supra , at 626–627 (“[T]he evil of protection

ism can reside in legis l ative mea n s as well as legislativ e ends,” such that “wha t ever [t he State’ s] purpose, it may not be accomplished by discri minating against articles of commerce coming from outside th e State unless there is some reason, apart fro m their origin, to treat them differ

ently”); Huntv. W a shington S t ate Appl eAdverti s i n g Comm’n , 432 U. S. 333, 352–353 (1977) (ex p laining that “we need not ascribe an economi cprotection motive to” discriminatory laws; s u ch laws a r e subject t o strict sc r u tiny even “if enacted fo r the declared purpose of protecting consumers from deception and fraud in the mark etplace”). Dean MilkCo. v. Madison , 340 U. S. 349 (1951), is instructive on this point. That case involved a dormant Commerce Clause chal lenge to anordinance requiring al l milk sold i nMadison, Wisconsin, to be processed withi n13 Cite as: 55 0 U

. S. ____ (2007)
ALITO , J., dissenting five miles of the city’s central square. See id ., at 350. The ordinance “professe[d] to be a health measure,” id ., at 354 , and may have conferred some benefit on the city and it s residents to the extent that it succeeded in guaranteeing the purity and quality of the milk sold in t h e city. T h e Court neve rtheless invalidated the ordinance, concluding that any public healt hbenefits it may have conferred could be achieved through “reaso nable nondi s criminatory alternatives,” including a system that wo uld allow a nonlocal dairy to qualify to sell milk in the city upon prov ing that it was in compliance with applicable health an d safety requirements. Id ., at 354–356. The Court did not inquire whether the real purpose of the ordinance was to b e nefit public health an d safety o r to protect loca l economic interests; nor did the Court make any effort to determine whethe r or to what extent the ordinance may have succeeded in promoting health and safety. In fact, the C o urt appar e ntly assumed that t h e ordinance could fairly be characte rized as “a health meas

ure.” Id ., a t354. The Court nevertheless concluded that the ordinance could not stand because it “erect[ed] a n economic barrier prote cting a maj o r local industry again s t competition from without the Stat e,” “plac[ed] a discrimi

natory bu r d en on int e rstate co mmerce,” a n d was “n ot essentialfo r the protection of local health interests.” Id ., at 354, 356. The overarching conce r n expressed by the Court was that the ordinance, if left intact, “would invite a multipli

cation of pr eferential trade areas destructive of the ver y purpose of the Commerce Clause.” Id., at 356

. “Under the circumstan c es here pr esented, ” the Court concluded, “the regulation must yield to the principle that ‘ o ne state in its dealings with another may not place itself ina position of economic is olation.’ ” Ibid. (quoting Bald winv. G. A. F. Seeli g

, Inc. , 294 U. S. 511, 527 (1935)). The same reasoning dooms the laws challenged here.14 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY ALITO , J., dissenting Like the ordinance in Dean Mi lk , these laws discriminate against interstate commerce (generally favoring local interests over nonlocal intere sts), but are defended on the ground tha ttheyserv e legitimate goals unr elated to pr o tectionism ( e.g. , health, safety, and protection of the envi

ronment). And while I do not question that the laws a t issue in this case serv e legitimate goals, the laws offend the dorman t Commerce Clause because those goals could be attainedeffectively through nondiscriminatory means. Indeed, no less thanin Carbone , those go als could b e achieved through “uniform [healthand] safety regulation s enacted wit h out the object to dis criminate” that “ w ould ensure that competitors [to th e m unicipal program] do no t underprice the market by cutting corners on environ

mental safety.” 511 U. S., at 393. Respondents would als o be free, of course, to “ s ubsidize the[ir] [prog r am] th rough general taxes or munic i pal bonds.” Id ., at 394

. “But hav

ing elected to use the open market to earn revenues for” their waste management program , respondents “may not employ discriminatoryregulati on to give that [progra m ] an advantage over rival busin es s e s from ou t of State.” Ibid

. B The Court next sugge sts that deference to legislation discriminating in favor of a munici pal landfill is especiall y appropriate considering tha t“ ‘[w]aste dis p osal is both typically a n d traditionally a loc a l government function.’ ” Ante , at 12 (quoting 261 F. 3d, at 264 (Calabresi, J., con

curring)). I disagree on two ground s. First, this Court has previously recognized that an y standard “that turns o na judicial appraisal of whether a particular government al function is ‘integr a l’ or ‘tra d i

tional’ ” is “ ‘unsound in principle and unworkable in prac

tice.’ ” Gar c iav. San Anto nio Metro p o litan Tran sit Au

tho r ity , 469 U. S. 528, 546–547 (1985). Indeed, the Court15 Cite as: 55 0 U

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ALITO , J., dissenting has twiceexperimented with such standards—first in the context of intergovern m ental tax immunity, see South Carolinav. United S t a t es , 199 U. S. 437 (1905), and more recently in the context of state regulatory immunity under the Commerce Clause, see Natio n al Lea g ueof Citi esv. Usery , 426 U. S. 833 (1976)—only to abandon them lat e r as analytically unsound. See Ga r c ia, su pra , at 547 (ove r ruling Nati onal Leagu eof Cities); New Yor kv. United Sta t es , 326 U. S. 572 (1946) (overruling South Carolina v. United Sta t es ). Thus, to the extent today’s holding rests on a distinc t ion between “tra ditional” govern mental func

tions and their nontraditional counterparts, see ante , at 11, it cannot be reconcile d with prior precedent. Second, although many municipa lities in thi s country have long assumed responsibi lity for disposing of loc a l garbage, see Carbone, supra , at 419–420, and n. 10 (S OUTER , J., dissenting) , most of the garbage produced in this country is stillmanaged by the private sector. See Brief for National Soli d Wastes Management Association et al. as Amici Curia e 22 (“Today, nearly two-thirds of solid waste received at landfills is received at private sector landfills”); R. W. Beck, In c. e t al., Size of the United States Solid Waste Industry, p. ES–3 (Apr. 2001) (stu dy sponsored by the Environmental Research and Edu c ation Foundation) (noting that in 1999, 69.2% of the sol i d waste produced in the United Stat es was managed b yprivatel y owned businesses). In that respect, the Court is simply mistaken in concludingthat waste disposal is “typi cally” a local government function. Moreover, especially considering t h e Court’s recognition that “ ‘any notion of di scrimination assumes a comparison of substantially simi la r entities,’ ” ante , at 10 (quotin g Gene ral Mo tors Cor p . v. Tra c y , 519 U. S. 278, 298 (1997)), a “tra ditional” municipal landfill is for prese n t purposes entirely different from a mo nopolis tic landfill supported by the kind of discriminatory legislati o n at issu e in this case16 UNITED HAULERS A S SN ., INC. v. ONE I DA-HERKIM ER SOLID WAST E MANAGEMENT AUTHORITY ALITO , J., dissenting and in Carbone

. Whil e the former may be rooted in hi s tory and tradition, the latter has been deemed unconstitu

tional untiltoday. See Carbone, s u pra , at 392–393. It is therefore fa r from clear that the laws at issue here can fairly be described as serving a function “typically a n d traditionally” performe d by local governments. C Equally unpersuasive is the Court’s suggestion that th e flow-control laws do n o t discriminate against interstat e commerce because they “treat in-state private business interests exactly the same as out-of-state ones.” Ante , a t 13. Again, the critica l issue is whether th e challenged legislation discriminates agains t interstate c o mmerce. If it does, th en regardless of whether those harmed by it reside entirely outside the Sta t e in question, the law i s subject to strict sc rut i ny. Indeed, this Court has long recognized that “ ‘a bu rden imposed by a State upon inter

state commerce is not to be sustained simply because the statute imposing it applies a lik e to the people of al l th e States, including the people of the State e nacting such statute.’ ” Brimmerv. Rebman , 138 U. S. 7 8 , 83 (1891) (quoting Minnesotav. Barber , 136 U. S. 313, 326 (1890)); accord, Fort Gra tiot Sa nitary La ndfill, Inc. , 504 U. S., at 361–363; Dean Milk , 340 U. S., at 354, n. 4. It therefore makes no difference that the flow-control l a ws at iss u e here apply to in-state and out-of-state businesses alike. 4 See Carbone, supr a , at 391 (“The [flow-contro l] ordinance is no less d i scriminatory because in-state or in-town proc

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4 A la w gra n t i ng monopoly right s t oasingle, loca l b u s i nes s clea rly would notb e immune from a dorma n t Commerce Cla u s echa llen g e simply becau s e it excluded both in -state and out-of-state competitors from the local market. See C & A Carb o ne, In c . v. Clarkstown, 511 U. S. 383, 391 (199 4). It is t h er efor e str a ng e forth e Cou r tto a ttac han y sig n ific an c eto th e fac tth at th e flow -c on trol law s at issu e h e r e applyto in-state and o u t-of-state co mpetitors alik e.17 Cite as: 55 0 U

. S. ____ (2007)
ALITO , J., dissenting essors are also covered by the proh ibition”). * * * The dormant Commerce Clause has long been under

stood to prohibit the k i nd of discriminatory legislation upheld by the Court in this case. I would therefore re

verse the decision of the Court of Appeals.