United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED HAULERS ASSOCIATION, INC., ET AL. v.

ONEIDA-HERKIMER SOLID WASTE MANAGEMENT

AUTHORITY ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 05–1345. Argued January 8, 2007—Decided April 30, 2007

Traditionally, municipalities in respondent Counties disposed of their

own solid wastes, often via landfills that operated without permits

and in violation of state regulations. Facing an environmental crisis

and an uneasy relationship with local waste management companies,

the Counties requested and the State created respondent Authority.

The Counties and the Authority agreed that the Authority would

manage all solid waste in the Counties. Private haulers could pick

up citizens’ trash, but the Authority would process, sort, and send it

off for disposal. The Authority would also provide other services, in

cluding recycling. If the Authority’s operating costs and debt service

were not recouped through the “tipping fees” it charged, the Counties

must make up the difference. To avoid such liability, the Counties

enacted “flow control” ordinances requiring private haulers to obtain

permits to collect solid waste in the Counties and to deliver the waste

to the Authority’s sites.

Petitioners, a trade association and individual haulers, filed suit

under 42 U. S. C. §1983, alleging that the flow control ordinances vio

late the Commerce Clause by discriminating against interstate com

merce. They submitted evidence that without the ordinances and the

associated tipping fees, they could dispose of solid waste at out-of

state facilities for far less. Ruling in the haulers’ favor, the District

Court held that nearly all flow control laws had been categorically re

jected in C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383, where

this Court held that an ordinance forcing haulers to deliver waste to

a particular private facility discriminated against interstate com

merce. Reversing, the Second Circuit held that Carbone and other of

2 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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Syllabus

this Court’s so-called “dormant” Commerce Clause precedents allow

for a distinction between laws that benefit public, as opposed to pri

vate, facilities.

Held: The judgment is affirmed.

261 F. 3d 245 and 438 F. 3d 150, affirmed.

THE CHIEF JUSTICE delivered the opinion of the Court with respect

to Parts I, II–A, II–B, and II–C, concluding that the Counties’ flow

control ordinances, which treat in-state private business interests ex

actly the same as out-of-state ones, do not discriminate against inter

state commerce. Pp. 6–13.

(a) To determine whether a law violates the dormant Commerce

Clause, the Court first asks whether it discriminates on its face

against interstate commerce. In this context, “ ‘discrimination’ sim

ply means differential treatment of in-state and out-of-state economic

interests that benefits the former and burdens the latter.” Oregon

Waste Systems, Inc. v. Department of Environmental Quality of Ore.,

511 U. S. 93, 99. Discriminatory laws motivated by “simple economic

protectionism” are subject to a “virtually per se rule of invalidity,”

Philadelphia v. New Jersey, 437 U. S. 617, 624, which can only be

overcome by a showing that there is no other means to advance a le

gitimate local purpose, Maine v. Taylor, 477 U. S. 131, 138. P. 6.

(b) Carbone does not control this case. Carbone involved a flow

control ordinance requiring that all nonhazardous solid waste within

a town be deposited, upon payment of an above-market tipping fee, at

a transfer facility run by a private contractor under an agreement

with the town. See 511 U. S., at 387. The dissent there opined that

the ostensibly private transfer station was “essentially a municipal

facility,” id., at 419, and that this distinction should have saved the

ordinance because favoring local government is different from favor

ing a particular private company. The majority’s failure to comment

on the public-private distinction does not prove, as the haulers’ con

tend, that the majority agreed with the dissent’s characterization of

the facility, but thought there was no difference under the dormant

Commerce Clause between laws favoring private entities and those

favoring public ones. Rather, the Carbone majority avoided the issue

because the transfer station was private, and therefore the question

whether public facilities may be favored was not properly before the

Court. The majority viewed the ordinance as “just one more instance

of local processing requirements that we long have held invalid,” id.,

at 391, citing six local processing cases involving discrimination in

favor of private enterprise. If the Court were extending this line of

cases to cover discrimination in favor of local government, it could be

expected to have said so. Thus, Carbone cannot be regarded as hav

ing decided the public-private question. Pp. 6–9.

Cite as: 550 U. S. ____ (2007) 3

Syllabus

(c) The flow control ordinances in this case do not discriminate

against interstate commerce. Compelling reasons justify treating

these laws differently from laws favoring particular private busi

nesses over their competitors. “[A]ny notion of discrimination as

sumes a comparison of substantially similar entities,” General Motors

Corp. v. Tracy, 519 U. S. 278, 298, whereas government’s important

responsibilities to protect the health, safety, and welfare of its citi

zens set it apart from a typical private business, cf. id., at 313. More

over, in contrast to laws favoring in-state business over out-of-state

competition, which are often the product of economic protectionism,

laws favoring local government may be directed toward any number

of legitimate goals unrelated to protectionism. Here, the ordinances

enable the Counties to pursue particular policies with respect to

waste handling and treatment, while allocating the costs of those

policies on citizens and businesses according to the volume of waste

they generate. The contrary approach of treating public and private

entities the same under the dormant Commerce Clause would lead to

unprecedented and unbounded interference by the courts with state

and local government. The Counties’ citizens could have left the en

tire matter of waste management services for the private sector, in

which case any regulation they undertook could not discriminate

against interstate commerce. But it was also open to them to vest re

sponsibility for the matter with their government, and to adopt flow

control ordinances to support the government effort. It is not the of

fice of the Commerce Clause to control the voters’ decision in this re

gard. The Court is particularly hesitant to interfere here because

waste disposal is typically and traditionally a function of local gov

ernment exercising its police power. Nothing in the Commerce

Clause vests the responsibility for such a policy judgment with the

Federal Judiciary. Finally, while the Court’s dormant Commerce

Clause cases often find discrimination when the burden of state regu

lation falls on interests outside the State, the most palpable harm

imposed by the ordinances at issue—more expensive trash removal—

will likely fall upon the very people who voted for the laws, the Coun

ties’ citizens. There is no reason to step in and hand local businesses

a victory they could not obtain through the political process. Pp. 10–

13.

ROBERTS, C. J., delivered the opinion of the Court, except as to Part

II–D. SOUTER, GINSBURG, and BREYER, JJ., joined that opinion in full.

SCALIA, J., filed an opinion concurring as to Parts I and II–A through

II–C. THOMAS, J., filed an opinion concurring in the judgment. ALITO,

J., filed a dissenting opinion, in which STEVENS and KENNEDY, JJ.,

joined.

Cite as: 550 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–1345

_________________

UNITED HAULERS ASSOCIATION, INC., ET AL.,

PETITIONERS v. ONEIDA-HERKIMER SOLID

WASTE MANAGEMENT AUTHORITY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 30, 2007]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court, except as to Part II–D.

“Flow control” ordinances require trash haulers to de

liver solid waste to a particular waste processing facility.

In C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383

(1994), this Court struck down under the Commerce

Clause a flow control ordinance that forced haulers to

deliver waste to a particular private processing facility. In

this case, we face flow control ordinances quite similar to

the one invalidated in Carbone. The only salient differ

ence is that the laws at issue here require haulers to bring

waste to facilities owned and operated by a state-created

public benefit corporation. We find this difference consti

tutionally significant. Disposing of trash has been a tradi

tional government activity for years, and laws that favor

the government in such areas—but treat every private

business, whether in-state or out-of-state, exactly the

same—do not discriminate against interstate commerce

for purposes of the Commerce Clause. Applying the

Commerce Clause test reserved for regulations that do not

2 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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Opinion of the Court

discriminate against interstate commerce, we uphold

these ordinances because any incidental 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 New York, Oneida and Herkimer

Counties span over 2,600 square miles and are home to

about 306,000 residents. Traditionally, each city, town, or

village within the Counties has been responsible for dis

posing of its own waste. Many had relied on local land

fills, some in a more environmentally responsible fashion

than others.

By the 1980’s, the Counties confronted what they could

credibly call a solid waste “ ‘crisis.’ ” Brief for Respondents

4. Many local landfills were operating without permits

and in violation of state regulations. Sixteen were ordered

to close and remediate the surrounding environment,

costing the public tens of millions 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 named over 600 local businesses and

several municipalities and school districts as third-party

defendants.

The “crisis” extended beyond health and safety concerns.

The Counties had an uneasy relationship with local waste

management companies, enduring price fixing, pervasive

overcharging, and the influence of organized crime. Dra

matic price hikes were not uncommon: In 1986, for exam

ple, a county contractor doubled its waste disposal rate on

six weeks’ notice.

Responding to these problems, the Counties requested

and New York’s Legislature and Governor created the

Oneida-Herkimer Solid Waste Management Authority

(Authority), a public benefit corporation. See N. Y. Pub.

Cite as: 550 U. S. ____ (2007) 3

Opinion of the Court

Auth. Law Ann. §2049–aa et seq. (West 1995). The Au

thority is empowered to collect, process, and dispose of

solid waste generated in the Counties. §2049–ee(4). To

further the Authority’s governmental and public purposes,

the Counties may impose “appropriate and reasonable

limitations on competition” by, for instance, adopting

“local laws requiring that all solid waste . . . be delivered

to a specified solid waste management-resource recovery

facility.” §2049–tt(3).

In 1989, the Authority and the Counties entered into a

Solid Waste Management Agreement, under which the

Authority agreed to manage all solid waste within the

Counties. Private haulers would remain free to pick up

citizens’ trash from the curb, but the Authority would take

over the job of processing the trash, sorting it, and sending

it off for disposal. To fulfill its part of the bargain, the

Authority agreed to purchase and develop facilities for the

processing and disposal of solid waste and recyclables

generated in the Counties.

The Authority collected “tipping fees” to cover its operat

ing and maintenance costs for these facilities.1 The tip

ping fees significantly exceeded those charged for waste

removal on the open market, but they allowed the Author

ity to do more than the average private waste disposer. In

addition to landfill transportation and solid waste dis

posal, the fees enabled the Authority to provide recycling

of 33 kinds of materials, as well as composting, household

hazardous waste disposal, and a number of other services.

If the Authority’s operating costs and debt service were

not recouped through tipping fees and other charges, the

——————

1 Tipping fees are disposal charges levied against collectors who drop

off waste at a processing facility. They are called “tipping” fees because

garbage trucks literally tip their back end to dump out the carried

waste. As of 1995, haulers in the Counties had to pay tipping fees of at

least $86 per ton, a price that ballooned to as much as $172 per ton if a

particular load contained more than 25% recyclables.

4 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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agreement provided that the Counties would make up the

difference.

As described, the agreement had a flaw: Citizens might

opt to have their waste hauled to facilities with lower

tipping fees. To avoid being stuck with the bill for facili

ties that citizens voted for but then chose not to use, the

Counties enacted “flow control” ordinances requiring

that all solid waste generated within the Counties be

delivered to the Authority’s processing sites.2 Private

haulers must obtain a permit from the Authority to collect

waste in the Counties. Penalties for noncompliance with

the ordinances include permit revocation, fines, and

imprisonment.

Petitioners are United Haulers Association, Inc., a trade

association made up of solid waste management compa

nies, and six haulers that operated in 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. §1983, alleging that the flow control

laws violate the Commerce Clause by discriminating

against interstate commerce. They submitted evidence

——————

2 Oneida’sflow control ordinance provides in part:

“From the time of placement of solid waste and of recyclables at the

roadside or other designated area approved by the County or by the

Authority pursuant to contract with the County, or by a person for

collection in accordance herewith, such solid waste and recyclables

shall be delivered to the appropriate facility, entity or person responsi

ble for disposition designated by the County or by the Authority pursu

ant to contract with the Authority.” App. to Pet. for Cert. 122a.

The relevant portion of Herkimer’s flow control ordinance is substan

tially similar:

“After placement of garbage and of recyclable materials at the roadside

or other designated area approved by the Legislature by a person for

collection in accordance herewith, such garbage and recyclable material

shall be delivered to the appropriate facility designated by the Legisla

ture, or by the Authority pursuant to contract with the County.” Id., at

135a.

Cite as: 550 U. S. ____ (2007) 5

Opinion of the Court

that without the flow control laws and the associated $86

per-ton tipping fees, they could dispose of solid waste at

out-of-state facilities for between $37 and $55 per ton,

including transportation.

The District Court read our decision in Carbone, 511

U. S. 383, as categorically rejecting nearly all flow control

laws. The court ruled in the haulers’ favor, enjoining

enforcement of the Counties’ laws. The Second Circuit

reversed, reasoning that Carbone and our other dormant

Commerce Clause precedents allow for a distinction 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 discriminate against interstate commerce

when it favors local government at the expense of all

private industry. The court remanded to let the District

Court decide whether the Counties’ ordinances neverthe

less placed an incidental burden on interstate commerce,

and if so, whether the ordinances’ benefits outweighed

that burden.

On remand and after protracted discovery, a Magistrate

Judge and the District Court found that the haulers did

not show that the ordinances imposed any cognizable

burden on interstate commerce. The Second Circuit af

firmed, assuming that the laws exacted some toll on inter

state commerce, but finding any possible burden “modest”

compared to the “clear and substantial” benefits of the

ordinances. 438 F. 3d 150, 160 (2006). Because the Sixth

Circuit had recently issued a conflicting decision holding

that a flow control ordinance favoring a public entity does

facially discriminate against interstate commerce, see

National Solid Wastes Management Assn. v. Daviess Cty.,

434 F. 3d 898 (2006), we granted certiorari, 548 U. S. ___

(2006).

6 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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Opinion of the Court

II

A

The Commerce Clause provides that “Congress shall

have Power . . . [t]o regulate Commerce with foreign Na

tions, and among the several States.” U. S. Const., Art. I,

§8, cl. 3. Although the Constitution does not in terms

limit the power of States to regulate commerce, we have

long interpreted the Commerce Clause as an implicit

restraint on state authority, even in the absence of a

conflicting federal statute. See Case of the State Freight

Tax, 15 Wall. 232, 279 (1873); Cooley v. Board of Wardens

of Port of Philadelphia ex rel. Soc. for Relief of Distressed

Pilots, 12 How. 299, 318 (1852).

To determine whether a law violates this so-called

“dormant” aspect of the Commerce Clause, we first ask

whether it discriminates on its face against interstate

commerce. American Trucking Assns., Inc. v. Michigan

Pub. Serv. Comm’n, 545 U. S. 429, 433 (2005); Fort Gratiot

Sanitary Landfill, Inc. v. Michigan Dept. of Natural Re

sources, 504 U. S. 353, 359 (1992). In this context, “ ‘dis

crimination’ simply means differential treatment of in

state and out-of-state economic interests that benefits the

former and burdens the latter.” Oregon Waste Systems,

Inc. v. Department of Environmental Quality of Ore., 511

U. S. 93, 99 (1994); New Energy Co. of Ind. v. Limbach,

486 U. S. 269, 273 (1988). Discriminatory laws motivated

by “simple economic protectionism” are subject to a “virtu

ally per se rule of invalidity,” Philadelphia v. New Jersey,

437 U. S. 617, 624 (1978), which can only be overcome by a

showing that the State has no other means to advance a

legitimate local purpose, Maine v. Taylor, 477 U. S. 131,

138 (1986).

B

Following the lead of the Sixth Circuit in Daviess

County, the haulers argue vigorously that the Counties’

Cite as: 550 U. S. ____ (2007) 7

Opinion of the Court

ordinances discriminate against interstate commerce

under Carbone. In Carbone, the town of Clarkstown, New

York, hired a private contractor to build a waste transfer

station. According to the terms of the deal, the contractor

would operate the facility for five years, charging an

above-market tipping fee of $81 per ton; after five years,

the town would buy the facility for one dollar. The town

guaranteed that the facility would receive a certain vol

ume of trash per year. To make good on its promise,

Clarkstown passed a flow control ordinance requiring that

all nonhazardous solid waste within the town be deposited

at the transfer facility. See 511 U. S., at 387.

This Court struck down the ordinance, holding that it

discriminated against interstate commerce by “hoard[ing]

solid waste, and the demand to get rid of it, for the benefit

of the preferred processing facility.” Id., at 392. The

dissent pointed out that all of this Court’s local processing

cases involved laws that discriminated in favor of private

entities, not public ones. Id., at 411 (opinion of SOUTER,

J.). According to the dissent, Clarkstown’s ostensibly

private transfer station was “essentially a municipal

facility,” id., at 419, and this distinction should have saved

Clarkstown’s ordinance because favoring local government

is by its nature different from favoring a particular private

company. The majority did not comment on the dissent’s

public-private distinction.

The parties in this case draw opposite inferences from

the majority’s silence. The haulers say it proves that the

majority agreed with the dissent’s characterization of the

facility, but thought there was no difference under the

dormant Commerce Clause between laws favoring private

entities and those favoring public ones. The Counties

disagree, arguing that the majority studiously avoided the

issue because the facility in Carbone was private, and

therefore the question whether public facilities may be

8 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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favored was not properly before the Court.3

We believe the latter interpretation of Carbone is cor

rect. As the Second Circuit explained, “in Carbone the

Justices were divided over the fact of whether the favored

facility was public or private, rather than on the import of

that distinction.” 261 F. 3d, at 259 (emphasis in original).

The Carbone dissent offered a number of reasons why

public entities should be treated differently from private

ones under the dormant Commerce Clause. See 511 U. S.,

at 419–422 (opinion of SOUTER, J.). It is hard to suppose

that the Carbone majority definitively rejected these

arguments without explaining why.

The Carbone majority viewed Clarkstown’s flow control

ordinance as “just one more instance of local processing

requirements that we long have held invalid.” Id., at 391.

It then cited six local processing cases, every one of which

involved discrimination in favor of private enterprise.4

——————

3 Each side makes much of the Carbone majority’s various descrip

tions of the facility. The haulers point out that the Court twice referred

to the construction and financing of the transfer station as the town’s

project. See 511 U. S., at 387 (“its new facility”), 394 (“its project”);

Brief for Petitioners 20–22. The Counties note that the majority

referred to the transfer station as a “town-sponsored facility,” Carbone,

511 U. S., at 393, a “favored local operator,” id., at 389, “the preferred

processing facility,” a “single local proprietor,” and a “local business,”

id., at 392, but never as a public facility. Brief for Respondents 17, n. 7.

The dissent has mined the Carbone decision, appendix, and briefs for

further instances of allegedly supportive terminology, post, at 4–5

(opinion of ALITO, J.) but we continue to find this duel of labels at best

inconclusive.

4 See South-Central Timber Development, Inc. v. Wunnicke, 467 U. S.

82 (1984) (invalidating Alaska regulation requiring all Alaskan timber

to be processed in-state prior to export); Pike v. Bruce Church, Inc., 397

U. S. 137 (1970) (invalidating application of an Arizona statute to

require Arizona-grown cantaloupes to be packaged within the State

before export); Toomer v. Witsell, 334 U. S. 385 (1948) (invalidating

South Carolina statute requiring shrimp fisherman to unload, pack,

and stamp their catch before shipping it to another State); Foster-

Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928) (invalidating a

Cite as: 550 U. S. ____ (2007) 9

Opinion of the Court

The Court’s own description of the cases acknowledges

that the “offending local laws hoard a local resource—be it

meat, shrimp, or milk—for the benefit of local businesses

that treat it.” Id., at 392 (emphasis added). If the Court

were extending this line of local processing cases to cover

discrimination in favor of local government, one would

expect it to have said so. Cf. United States v. Burr, 25

F. Cas. 55, 165 (No. 14,693) (CC Va. 1807) (Marshall,

C. J.) (“[A]n opinion which is to . . . establish a principle

never before recognized, should be expressed in plain and

explicit terms”).

The Carbone majority stated that “[t]he only conceivable

distinction” between the laws in the local processing cases

and Clarkstown’s flow control ordinance was that Clark

stown’s ordinance favored a single local business, rather

than a group of them. 511 U. S., at 392 (emphasis added).

If the Court thought Clarkstown’s processing facility was

public, that additional distinction was not merely “con

ceivable”—it was conceived, and discussed at length, by

three Justices in dissent. Carbone cannot be regarded as

having decided the public-private question.5

——————

Louisiana statute prohibiting the export of shrimp unless the heads

and hulls had first been removed within the State); Johnson v. Haydel,

278 U. S. 16 (1928) (invalidating analogous Louisiana statute for

oysters); Minnesota v. Barber, 136 U. S. 313 (1890) (invalidating

Minnesota law requiring any meat sold within the State to be examined

by an in-state inspector). Dean Milk Co. v. Madison, 340 U. S. 349

(1951) (invalidating local ordinance requiring all milk sold in the city to

be pasteurized within five miles of the city center)—discussed else

where in Carbone and in the dissent here, post, at 12–13—is readily

distinguishable on the same ground.

5 The dissent asserts that the Court “long ago recognized that the

Commerce Clause can be violated by a law that discriminates in favor

of a state-owned monopoly.” Post, at 6. The authority it cites—Scott v.

Donald, 165 U. S. 58 (1897), and Vance v. W. A. Vandercook Co., 170

U. S. 438, 442 (1898)—certainly qualifies as from “long ago,” but does

not support the proposition. Scott struck down two laws that discrimi

nated in favor of in-state businesses and against out-of-state busi

10 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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C

The flow control ordinances in this case benefit a clearly

public facility, while treating all private companies exactly

the same. Because the question is now squarely presented

on the facts of the case before us, we decide that such flow

control ordinances do not discriminate against interstate

commerce for purposes of the dormant Commerce Clause.

Compelling reasons justify treating these laws differ

ently from laws favoring particular private businesses

over their competitors. “Conceptually, of course, any

notion of discrimination assumes a comparison of substan

tially similar entities.” General Motors Corp. v. Tracy, 519

U. S. 278, 298 (1997) (footnote omitted). But States and

municipalities are not private businesses—far from it.

Unlike private enterprise, government is vested with the

responsibility of protecting the health, safety, and welfare

of its citizens. See Metropolitan Life Ins. Co. v. Massachu

setts, 471 U. S. 724, 756 (1985) (“The States traditionally

have had great latitude under their police powers to legis

late as to the protection of the lives, limbs, health, comfort,

and quiet of all persons” (internal quotation marks omit

——————

nesses; neither law favored local government at the expense of all

private industry. See 165 U. S., at 92–93, 101; Granholm v. Heald, 544

U. S. 460, 478–479 (2005) (describing Scott holding). Scott is simply

another case like those cited in footnote 4.

Vance actually upheld “South Carolina’s monopoly over liquor distri

bution[,] . . . reject[ing] the argument that this monopoly system was

unconstitutionally discriminatory.” Granholm, supra, at 507 (THOMAS,

J., dissenting) (citing Vance, supra, at 450–452). It was the dissent in

Vance that argued that “such a state monopoly system constituted

unconstitutional discrimination.” Granholm, supra, at 507 (THOMAS, J.,

dissenting) (citing 170 U. S., at 462–468 (opinion of Shiras, J.)). The

Vance Court simply struck down a regulation on direct shipments to

consumers for personal use, under the Court’s excruciatingly arcane

pre-Prohibition precedents. See 170 U. S., at 455. Most tellingly,

Vance harkens back to a bygone era; until the dissent today, it had

been cited by this Court in only two cases in the past 60 years.

Cite as: 550 U. S. ____ (2007) 11

Opinion of the Court

ted)). These important responsibilities set state and local

government apart from a typical private business. Cf.

Tracy, supra, at 313 (SCALIA, J., concurring) (“Nothing in

this Court’s negative Commerce Clause jurisprudence”

compels the conclusion “that private marketers engaged in

the sale of natural gas are similarly situated to public

utility companies”).

Given these differences, it does not make sense to re

gard laws favoring local government and laws favoring

private industry with equal skepticism. As our local proc

essing cases demonstrate, when a law favors in-state

business over out-of-state competition, rigorous scrutiny is

appropriate because the law is often the product of “simple

economic protectionism.” Wyoming v. Oklahoma, 502

U. S. 437, 454 (1992); Philadelphia v. New Jersey, 437

U. S., at 626–627. Laws favoring local government, by

contrast, may be directed toward any number of legitimate

goals unrelated to protectionism. Here the flow control

ordinances enable the Counties to pursue particular poli

cies with respect to the handling and treatment of waste

generated in the Counties, while allocating the costs of

those policies on citizens and businesses according to the

volume of waste they generate.

The contrary approach of treating public and private

entities the same under the dormant Commerce Clause

would lead to unprecedented and unbounded interference

by the courts with state and local government. The dor

mant Commerce Clause is not a roving license for federal

courts to decide what activities are appropriate for state

and local government to undertake, and what activities

must be the province of private market competition. In

this case, the citizens of Oneida and Herkimer Counties

have chosen the government to provide waste manage

ment services, with a limited role for the private sector in

arranging for transport of waste from the curb to the

public facilities. The citizens could have left the entire

12 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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matter for the private sector, in which case any regulation

they undertook could not discriminate against interstate

commerce. But it was also open to them to vest responsi

bility for the matter with their government, and to adopt

flow control ordinances to support the government 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 services.

“The Commerce Clause significantly limits the ability of

States and localities to regulate or otherwise burden the

flow of interstate commerce, but it does not elevate free

trade above all other values.” Maine v. Taylor, 477 U. S.,

at 151. See Exxon Corp. v. Governor of Maryland, 437

U. S. 117, 127 (1978) (Commerce Clause does not protect

“the particular structure or method of operation” of a

market).

We should be particularly hesitant to interfere with the

Counties’ efforts under the guise of the Commerce Clause

because “[w]aste disposal is both typically and tradition

ally a local government function.” 261 F. 3d, at 264 (case

below) (Calabresi, J., concurring); see USA Recycling, Inc.

v. Town of Babylon, 66 F. 3d 1272, 1275 (CA2 1995) (“For

ninety years, it has been settled law that garbage collec

tion and disposal is a core function of local government in

the United States”); M. Melosi, Garbage in the Cities:

Refuse, Reform, and the Environment, 1880–1980, pp.

153–155 (1981). Congress itself has recognized local gov

ernment’s vital role in waste management, making clear

that “collection and disposal of solid wastes should con

tinue to be primarily the function of State, regional, and

local agencies.” Resource Conservation and Recovery Act

of 1976, 90 Stat. 2797, 42 U. S. C. §6901(a)(4). The policy

of the State of New York favors “displac[ing] competition

with regulation or monopoly control” in this area. N. Y.

Pub. Auth. Law Ann. §2049–tt(3). We may or may not

agree with that approach, but nothing in the Commerce

Cite as: 550 U. S. ____ (2007) 13

Opinion of the Court

Clause vests the responsibility for that policy judgment

with the Federal Judiciary.6

Finally, it bears mentioning that the most palpable

harm imposed by the ordinances—more expensive trash

removal—is likely to fall upon the very people who voted

for the laws. Our dormant Commerce Clause cases often

find discrimination when a State shifts the costs of regula

tion to other States, because when “the burden of state

regulation falls on interests outside the state, it is unlikely

to be alleviated by the operation of those political re

straints normally exerted when interests within the state

are affected.” Southern Pacific Co. v. Arizona ex rel. Sulli

van, 325 U. S. 761, 767–768, n. 2 (1945). Here, the citi

zens and businesses of the Counties bear the costs of the

ordinances. There is no reason to step in and hand local

businesses a victory they could not obtain through the

political process.

We hold that the Counties’ flow control ordinances,

which treat in-state private business interests exactly the

same as out-of-state ones, do not “discriminate against

interstate commerce” for purposes of the dormant Com

merce Clause.7

——————

6 JUSTICE THOMAS is thus wrong in stating that our approach might

suggest “a policy-driven preference for government monopoly over

privatization.” Post, at 6 (opinion concurring in judgment). That is

instead the preference of the affected locality here. Our opinion simply

recognizes that a law favoring a public entity and treating all private

entities the same does not discriminate against interstate commerce as

does a law favoring local business over all others.

7 The Counties and their amicus were asked at oral argument if af

firmance would lead to the “Oneida-Herkimer Hamburger Stand,”

accompanied by a “flow control” law requiring citizens to purchase their

burgers only from the state-owned producer. Tr. of Oral Arg. 33–34

(Counties), 45–46, 49–50 (amicus State of New York). We doubt it.

“The existence of major in-state interests adversely affected by [a law]

is a powerful safeguard against legislative abuse.” Minnesota v. Clover

Leaf Creamery Co., 449 U. S. 456, 473, n. 17 (1981). Recognizing that

local government may facilitate a customary and traditional govern

14 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

Opinion of ofOBERTS, C. J.

Opinion R the Court

D

The Counties’ flow control ordinances are properly

analyzed under the test set forth in Pike v. Bruce Church,

Inc., 397 U. S. 137, 142 (1970), which is reserved for laws

“directed to legitimate local concerns, with effects upon

interstate commerce that are only incidental.” Philadel

phia v. New Jersey, 437 U. S., at 624. Under the Pike test,

we will uphold a nondiscriminatory statute like this one

“unless the burden imposed on [interstate] commerce is

clearly excessive in relation to the putative local benefits.”

397 U. S., at 142; Northwest Central Pipeline Corp. v.

State Corporation Comm’n of Kan., 489 U. S. 493, 525–526

(1989).

After years of discovery, both the Magistrate Judge and

the District Court could not detect any disparate impact

on out-of-state as opposed to in-state businesses. The

Second Circuit alluded to, but did not endorse, a “rather

abstract harm” that may 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 the ordinances

impose any incidental burden on interstate commerce

because any arguable burden does not exceed the public

benefits of the ordinances.

The ordinances give the Counties a convenient and

effective way to finance their integrated package of waste-

disposal services. While “revenue generation is not a local

interest that can justify discrimination against interstate

——————

ment function such as waste disposal, without running afoul of the

Commerce Clause, is hardly a prescription for state control of the

economy. In any event, Congress retains authority under the Com

merce Clause as written to regulate interstate commerce, whether

engaged in by private or public entities. It can use this power, as it has

in the past, to limit state use of exclusive franchises. See, e.g., Gibbons

v. Ogden, 9 Wheat. 1, 221 (1824).

Cite as: 550 U. S. ____ (2007) 15

Opinion of ofOBERTS, C. J.

Opinion R the Court

commerce,” Carbone, 511 U. S., at 393 (emphasis added),

we think it is a cognizable benefit for purposes of the Pike

test.

At the same time, the ordinances are more than financ

ing tools. They increase recycling in at least two ways,

conferring significant health and environmental benefits

upon the citizens of the Counties. First, they create en

hanced incentives for recycling and proper disposal of

other kinds of waste. Solid waste disposal is expensive in

Oneida-Herkimer, but the Counties accept recyclables and

many forms of hazardous waste for free, effectively en

couraging their citizens to sort their own trash. Second,

by requiring all waste to be deposited at Authority facili

ties, the Counties have markedly increased their ability to

enforce recycling laws. If the haulers could take waste to

any disposal site, achieving an equal level of enforcement

would be much more costly, if not impossible. For these

reasons, any arguable burden the ordinances impose on

interstate commerce does not exceed their public benefits.

* * *

The Counties’ ordinances are exercises of the police

power in an effort to address waste disposal, a typical and

traditional concern of local government. The haulers

nevertheless ask us to hold that laws favoring public

entities while treating all private businesses the same are

subject to an almost per se rule of invalidity, because of

asserted discrimination. In the alternative, they maintain

that the Counties’ laws cannot survive the more permis

sive Pike test, because of asserted burdens on commerce.

There is a common thread to these arguments: They are

invitations to rigorously scrutinize economic legislation

passed under the auspices of the police power. There was

a time when this Court presumed to make such binding

judgments for society, under the guise of interpreting the

Due Process Clause. See Lochner v. New York, 198 U. S.

16 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

Opinion of ofOBERTS, C. J.

Opinion R the Court

45 (1905). We should not seek to reclaim that ground for

judicial supremacy under the banner of the dormant

Commerce Clause.

The judgments of the United States Court of Appeals for

the Second Circuit are affirmed.

It is so ordered.

Cite as: 550 U. S. ____ (2007) 1

SCALIA, J., concurring in part

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–1345

_________________

UNITED HAULERS ASSOCIATION, INC., ET AL.,

PETITIONERS v. ONEIDA-HERKIMER SOLID

WASTE MANAGEMENT AUTHORITY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 30, 2007]

JUSTICE SCALIA, concurring in part.

I join Part I and Parts II–A through II–C of the Court’s

opinion. I write separately to reaffirm my view that “the

so-called ‘negative’ Commerce Clause is an unjustified

judicial invention, not to be expanded beyond its existing

domain.” General Motors Corp. v. Tracy, 519 U. S. 278,

312 (1997) (SCALIA, J., concurring). “The historical record

provides no grounds for reading the Commerce Clause to

be other than what it says—an authorization for Congress

to regulate commerce.” Tyler Pipe Industries, Inc. v.

Washington State Dept. of Revenue, 483 U. S. 232, 263

(1987) (SCALIA, J., concurring in part and dissenting in

part).

I have been willing to enforce on stare decisis grounds a

“negative” self-executing Commerce Clause in two situa

tions: “(1) against a state law that facially discriminates

against interstate commerce, and (2) against a state law

that is indistinguishable from a type of law previously

held unconstitutional by the Court.” West Lynn Creamery,

Inc. v. Healy, 512 U. S. 186, 210 (1994) (SCALIA, J., concur

ring in judgment). As today’s opinion makes clear, the

flow-control law at issue in this case meets neither condi

tion. It benefits a public entity performing a traditional

local-government function and treats all private entities

2 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

SCALIA, J., concurring in part

precisely the same way. “Disparate treatment constitutes

discrimination only if the objects of the disparate treat

ment are, for the relevant purposes, similarly situated.”

Camps Newfound/Owatonna, Inc. v. Town of Harrison,

520 U. S. 564, 601 (1997) (SCALIA, J., dissenting). None of

this Court’s cases concludes that public entities and pri

vate entities are similarly situated for Commerce Clause

purposes. To hold that they are “would broaden the nega

tive Commerce Clause beyond its existing scope, and

intrude on a regulatory sphere traditionally occupied

by . . . the States.” Tracy, supra, at 313 (SCALIA, J.,

concurring).

I am unable to join Part II–D of the principal opinion, in

which the plurality performs so-called “Pike balancing.”

Generally speaking, the balancing of various values is left

to Congress—which is precisely what the Commerce

Clause (the real Commerce Clause) envisions.

Cite as: 550 U. S. ____ (2007) 1

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–1345

_________________

UNITED HAULERS ASSOCIATION, INC., ET AL.,

PETITIONERS v. ONEIDA-HERKIMER SOLID

WASTE MANAGEMENT AUTHORITY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 30, 2007]

JUSTICE THOMAS, concurring in the judgment.

I concur in the judgment. Although I joined C & A

Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), I no

longer believe it was correctly decided. The negative

Commerce Clause has no basis in the Constitution and

has proved unworkable in practice. See Camps New

found/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564,

610–620 (1997) (THOMAS, J., dissenting); Tyler Pipe Indus

tries, Inc. v. Washington State Dept. of Revenue, 483 U. S.

232, 259–265 (1987) (SCALIA, J., concurring in part and

dissenting in part); License Cases, 5 How. 504, 578–586

(1847) (Taney, C. J.). As the debate between the majority

and dissent shows, application of the negative Commerce

Clause turns solely on policy considerations, not on the

Constitution. Because this Court has no policy role in

regulating interstate commerce, I would discard the

Court’s negative Commerce Clause jurisprudence.

I

Under the Commerce Clause, “Congress shall have

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

and among the several States, and with the Indian

Tribes.” U. S. Const., Art. I, §8, cl. 3. The language of the

Clause allows Congress not only to regulate interstate

2 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

THOMAS, J., concurring in judgment

commerce but also to prevent state regulation of interstate

commerce. State Bd. of Ins. v. Todd Shipyards Corp., 370

U. S. 451, 456 (1962); Gibbons v. Ogden, 9 Wheat. 1, 210

(1824). Expanding on the interstate-commerce powers

explicitly conferred on Congress, this Court has inter

preted the Commerce Clause as a tool for courts to strike

down state laws that it believes inhibit interstate com

merce. But there is no basis in the Constitution for that

interpretation.

The Court does not contest this point, and simply begins

its analysis by appealing to stare decisis:

“Although the Constitution does not in terms limit the

power of States to regulate commerce, we have long

interpreted the Commerce Clause as an implicit re

straint on state authority, even in the absence of a

conflicting federal statute. See Case of the State

Freight Tax, 15 Wall. 232, 279 (1873); Cooley v. Board

of Wardens of Port of Philadelphia ex rel. Soc. for Re

lief of Distressed Pilots, 12 How. 299, 318 (1852).”

Ante, at 6.

The Court’s reliance on Cooley and State Freight Tax is

curious because the Court has abandoned the reasoning of

those cases in its more recent jurisprudence. Cooley and

State Freight Tax are premised upon the notion that the

Commerce Clause is an exclusive grant of power to Con

gress over certain subject areas.1 Cooley, supra, at 319–

320 (holding that “[w]hatever subjects of this [Commerce

Clause] power are in their nature national, or admit only

of one uniform system, or plan of regulation, may justly be

said to be of such a nature as to require exclusive legisla

tion by [C]ongress” but holding that “the nature of th[e]

——————

1 This

justification for the negative Commerce Clause is itself unsup

ported by the Constitution. See Tyler Pipe Industries, Inc. v. Washing

ton State Dept. of Revenue, 483 U. S. 232, 261–262 (1987) (SCALIA, J.,

concurring in part and dissenting in part).

Cite as: 550 U. S. ____ (2007) 3

THOMAS, J., concurring in judgment

subject [of state pilotage laws] is not such as to require its

exclusive legislation” and therefore upholding the state

laws against the negative Commerce Clause challenge);

State Freight Tax, supra, 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 one uniform system,” Cooley, supra, at

319. Rather, the modern jurisprudence focuses upon the

way in which States regulate those subjects to decide

whether the regulation is permissible. E.g., ante, at 6, 13.

Because the reasoning of Cooley and State Freight Tax has

been rejected entirely, they provide no foundation for

today’s decision.

Unfazed, the Court proceeds to analyze whether the

ordinances “discriminat[e] on [their] face against inter

state commerce.” Ante, at 6. Again, none of the cases the

Court cites explains how the absence or presence of dis

crimination is relevant to deciding whether the ordinances

are constitutionally permissible, and at least one case

affirmatively admits that the nondiscrimination rule has

no basis in the Constitution. Philadelphia v. New Jersey,

437 U. S. 617, 623 (1978) (“The bounds of these restraints

appear nowhere in the words of the Commerce Clause, but

have emerged gradually in the decisions of this Court

giving effect to its basic purpose”). Thus cloaked in the

“purpose” of the Commerce Clause, the rule against dis

crimination that the Court applies 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 because they shift over time, as

demonstrated by the different theories the Court has

offered to support the nondiscrimination principle. In the

early years of the nondiscrimination rule, the Court struck

down a state health law because “the enactment of a

4 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

THOMAS, J., concurring in judgment

similar statute by each one of the States composing the

Union would result in the destruction of commerce among

the several States.” Minnesota v. Barber, 136 U. S. 313,

321 (1890); see Foster-Fountain Packing Co. v. Haydel,

278 U. S. 1, 13 (1928) (stating that a Commerce Clause

violation would occur if the state statute would “directly

. . . obstruct and burden interstate commerce”). More

recently, the Court has struck down state laws sometimes

based on its preference for national unity, see, e.g., Ameri

can Trucking Assns., Inc. v. Michigan Pub. Serv. Comm’n,

545 U. S. 429, 433 (2005) (justifying the nondiscrimination

rule by stating that “[o]ur Constitution was framed upon

the theory that the peoples of the several states must sink

or swim together” (internal quotation marks omitted)),

and other times on the basis of antiprotectionist senti

ment, see, e.g., Oregon Waste Systems, Inc. v. Department

of Environmental Quality of Ore., 511 U. S. 93, 98 (1994)

(noting the interest in “avoid[ing] the tendencies toward

economic Balkanization”); New Energy Co. of Ind. v. Lim

bach, 486 U. S. 269, 273 (1988) (stating that the negative

Commerce Clause “prohibits economic protectionism—that

is, regulatory measures designed to benefit in-state eco

nomic interests by burdening out-of-state competitors”);

see also Carbone, 511 U. S., at 390 (“The central rationale

for the rule against discrimination is to prohibit state or

municipal laws whose object is local economic protection

ism, laws that would excite those jealousies and retalia

tory measures the Constitution was designed to prevent”);

Toomer v. Witsell, 334 U. S. 385, 403–404 (1948) (striking

down a law that “impose[d] an artificial rigidity on the

economic pattern of the industry”).

Many of the above-cited cases (and today’s majority and

dissent) rest on the erroneous assumption that the Court

must choose between economic protectionism and the free

market. But the Constitution vests that fundamentally

legislative choice in Congress. To the extent that Con

Cite as: 550 U. S. ____ (2007) 5

THOMAS, J., concurring in judgment

gress does not exercise its authority to make that choice,

the Constitution does not limit the States’ power to regu

late commerce. In the face of congressional silence, the

States are free to set the balance between protectionism

and the free market. Instead of accepting this constitu

tional reality, the Court’s negative Commerce Clause

jurisprudence gives nine Justices of this Court the power

to decide the appropriate balance.

II

As the foregoing demonstrates, despite more than 100

years of negative Commerce Clause doctrine, there is no

principled way to decide this case under current law.

Notably, the Court cannot and does not consider this case

“[i]n light of the language of the Constitution and the

historical context.” Alden v. Maine, 527 U. S. 706, 743

(1999). Likewise, it cannot follow “the cardinal rule to

construe provisions in context.” United States v. Balsys,

524 U. S. 666, 673 (1998). And with no text to construe,

the Court cannot take into account the Founders’ “deliber

ate choice of words” or “their natural meaning.” Wright v.

United States, 302 U. S. 583, 588 (1938). Furthermore, as

the debate between the Court’s opinion and the dissent-

ing opinion reveals, no case law applies to the facts of

this case.2

Explaining why the ordinances do not discriminate

against interstate commerce, the Court states that “gov

ernment is vested with the responsibility of protecting the

health, safety, and welfare of its citizens.” Ante, at 10.

According to the Court, a law favoring in-state business

requires rigorous scrutiny because the law “is often the

product of ‘simple economic protectionism.’ ” Ante, at 11.

——————

2 No previous case addresses the question whether the negative

Commerce Clause applies to favoritism of a government entity. I agree

with the Court that C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383

(1994), did not resolve this issue. Ante, at 6–9.

6 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

THOMAS, J., concurring in judgment

A law favoring local government, however, “may be di

rected toward any number of legitimate goals unrelated to

protectionism.” Ibid. This distinction is razor thin: In

contrast to today’s deferential approach (apparently based

on the Court’s trust of local government), the Court has

applied the equivalent of strict scrutiny in other cases

even where it is unchallenged that the state law discrimi

nated in favor of in-state private entities for a legitimate,

nonprotectionist reason. See Barber, supra, at 319 (strik

ing down the State’s inspection law for livestock even

though it did not challenge “[t]he presumption that this

statute was enacted, in good faith, . . . to protect the

health of the people of Minnesota”).

In Carbone, which involved discrimination in favor of

private entities, we did not doubt the good faith of the

municipality in attempting to deal with waste through a

flow-control ordinance. 511 U. S., at 386–389. But we

struck down the ordinance because it did not allow inter

state entities to participate in waste disposal. Id., at 390–

395. The majority distinguishes Carbone by deciding that

favoritism of a government monopoly is less suspect than

government regulation of private entities.3 I see no basis

for drawing such a conclusion, which, if anything, suggests

a policy-driven preference for government monopoly over

privatization. Ante, at 12 (stating that “waste disposal is

both typically and traditionally a local government func

tion” (alteration and internal quotation marks omitted)).

Whatever the reason, the choice is not the Court’s to

make. Like all of the Court’s previous negative Commerce

Clause cases, today’s decision leaves the future of state

and local regulation of commerce to the whim of the Fed

——————

3 The dissent argues that such a preference is unwarranted. Post, at

11 (opinion of Alito, J.) (“I cannot accept the proposition that laws

discriminating in favor of state-owned enterprises are so unlikely to be

the product of economic protectionism that they should be exempt from

the usual dormant Commerce Clause standards”).

Cite as: 550 U. S. ____ (2007) 7

THOMAS, J., concurring in judgment

eral Judiciary.

III

Despite its acceptance of negative Commerce Clause

jurisprudence, the Court expresses concern about “un

precedented and unbounded interference by the courts

with state and local government.” Ante, at 11. It explains:

“The dormant Commerce Clause is not a roving li

cense for federal courts to decide what activities are

appropriate for state and local government to under

take, and what activities must be the province of pri

vate market competition.

. . . . .

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

nesses a victory they could not obtain through the po

litical process.” Ante, at 11, 13.

I agree that the Commerce Clause is not a “roving license”

and that the Court should not deliver to businesses victo

ries that they failed to obtain through the political process.

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 analogy to Lochner v. New

York, 198 U. S. 45 (1905), suggests that the Court should

reject the negative Commerce Clause, rather than tweak

it. Ante, at 15. In Lochner the Court located a “right of

free contract” in a constitutional provision that says noth

ing of the sort. 198 U. S., at 57. The Court’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 error. Rather, it further propagates the error by

narrowing the negative Commerce Clause for policy rea

sons—reasons that later majorities of this Court may find

to be entirely illegitimate.

8 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

THOMAS, J., concurring in judgment

In so doing, the majority revisits familiar territory: Just

three years after Lochner, the Court narrowed the right of

contract for policy reasons but did not overrule Lochner.

Muller v. Oregon, 208 U. S. 412, 422–423 (1908) (uphold

ing a maximum-hours requirement for women because the

difference between the “two sexes” “justifies a difference in

legislation”). Like the Muller Court, today’s majority

trifles with an unsound and illegitimate jurisprudence yet

fails to abandon it.

Because I believe that the power to regulate interstate

commerce is a power given to Congress and not the Court,

I concur in the judgment of the Court.

Cite as: 550 U. S. ____ (2007) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–1345

_________________

UNITED HAULERS ASSOCIATION, INC., ET AL.,

PETITIONERS v. ONEIDA-HERKIMER SOLID

WASTE MANAGEMENT AUTHORITY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 30, 2007]

JUSTICE ALITO, with whom JUSTICE STEVENS and

JUSTICE KENNEDY join, dissenting.

In C & A Carbone, Inc. v. Clarkstown, 511 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 transfer station before leaving the municipality,”

discriminated against interstate commerce and was inva

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 essentially identical to the ordi

nance invalidated in Carbone, I respectfully dissent.

I

This Court has “interpreted the Commerce Clause to

invalidate local laws that impose commercial barriers or

discriminate against an article of commerce by reason of

its origin or destination out of State.” Id., at 390. As the

Court acknowledges, a law “ ‘ “discriminat[es]” ’ ” in this

context if it mandates “ ‘differential treatment of in-state

and out-of-state economic interests’ ” in a way “ ‘that bene

fits the former and burdens the latter.’ ” Ante, at 6 (quot

ing Oregon Waste Systems, Inc. v. Department of Envi

ronmental Quality of Ore., 511 U. S. 93, 99 (1994)). A local

2 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

ALITO, J., dissenting

law that discriminates against interstate commerce is

sustainable only if it serves a legitimate local purpose that

could not be served as well by nondiscriminatory means.

Maine v. Taylor, 477 U. S. 131 (1986).

“Solid waste, even if it has no value, is an article of

commerce.” Fort Gratiot Sanitary Landfill, Inc. v. Michi

gan Dept. of Natural Resources, 504 U. S. 353, 359 (1992).

Accordingly, laws that “discriminate against [trash] by

reason of its 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 well

by nondiscriminatory means.

In Carbone, this Court invalidated a local ordinance

requiring all nonhazardous solid waste in Clarkstown,

New York, to be deposited at a specific local transfer facil

ity. The Court concluded that the ordinance discriminated

against interstate commerce because it “hoard[ed] solid

waste, and the demand to get rid of it, for the benefit of

the preferred processing facility.” Id., at 392.

The Court explained that the flow-control ordinance did

serve a purpose that a nonprotectionist regulation would

not: “It ensures that the town-sponsored facility will be

profitable, so that the local contractor can build it and

Clarkstown can buy it back at nominal cost in five years.”

Id., at 393. “In other words . . . the flow control ordinance

is a financing measure.” Ibid. The Court concluded,

however, that “revenue generation is not a local interest

that can justify discrimination against interstate com

merce.” Ibid.

The Court also held that “Clarkstown has any number

of nondiscriminatory alternatives for addressing the

health and environmental problems alleged to justify the

ordinance”—including “uniform safety regulations” that

could be enacted to “ensure that competitors . . . do not

underprice the market by cutting corners on environ

mental safety.” Ibid. Thus, the Court invalidated the

Cite as: 550 U. S. ____ (2007) 3

ALITO, J., dissenting

ordinance because any legitimate local interests 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 acknowledges, “[t]he only

salient difference” between the cases is that the ordinance

invalidated in Carbone discriminated in favor of a pri

vately owned facility, whereas the laws at issue here

discriminate in favor of “facilities owned and operated by a

state-created public benefit corporation.” Ante, at 1. The

Court relies on the distinction between public and private

ownership to uphold the flow-control laws, even though a

straightforward application of Carbone would lead to the

opposite result. See ante, at 10–12. The public-private

distinction drawn by the Court is both illusory and with

out precedent.

II

The fact that the flow control laws at issue discriminate

in favor of a government-owned enterprise does not mean

ingfully distinguish this case from Carbone. The preferred

facility in Carbone was, to be sure, nominally owned by a

private contractor who had built the facility on the town’s

behalf, but it would be misleading to describe the facility

as private. In exchange for the contractor’s promise to

build the facility for the town free of charge and then to

sell it to the town five years later for $1, the town guaran

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

tence, the contractor would receive “a minimum waste

flow of 120,000 tons per year” and that the contractor

could charge an above-market tipping fee. 511 U. S., at

387. If the facility “received less than 120,000 tons in a

year, the town [would] make up the tipping fee deficit.”

Ibid. To prevent residents, businesses, and trash haulers

from taking their waste elsewhere in pursuit of lower

tipping fees (leaving the town responsible for covering any

4 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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ALITO, J., dissenting

shortfall in the contractor’s guaranteed revenue stream),

the town enacted an ordinance “requir[ing] all nonhazard

ous solid waste within the town to be deposited at” the

preferred facility. Ibid.

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

ment was to amortize the cost of the transfer station: The

town would finance its new facility with the income gener

ated by the tipping fees.” Ibid. (emphasis added). “In

other words,” the Court explained, “the flow control ordi

nance [wa]s a financing measure,” id., at 393, for what

everyone—including the Court—regarded as the town’s

new transfer station.

The only real difference between the facility at issue in

Carbone and its counterpart in this case is that title to the

former had not yet formally passed to the municipality.

The Court exalts form over substance in adopting a test

that turns on this technical distinction, particularly since,

barring any obstacle presented by state law, the transac

tion in Carbone could have been restructured to provide

for the passage of title at the beginning, rather than the

end, of the 5-year period.

For this very reason, it is not surprising that in Carbone

the Court did not dispute the dissent’s observation that

the preferred facility was for all practical purposes owned

by the municipality. See id., at 419 (opinion of

SOUTER, J.) (“Clarkstown’s transfer station is essentially a

municipal facility”); id., at 416 (describing the nominal

“proprietor” of the transfer station as “essentially an agent

of the municipal government”). To the contrary, the Court

repeatedly referred to the transfer station in terms sug

gesting that the transfer station did in fact belong to the

town. See id., at 387 (explaining that “[t]he town would

finance its new facility with the income generated by the

tipping fees” (emphasis added)); id., at 393 (observing that

the challenged flow-control ordinance was designed to

“ensur[e] that the town-sponsored facility will be profit

Cite as: 550 U. S. ____ (2007) 5

ALITO, J., dissenting

able”); id., at 394 (concluding that, “having elected to use

the open market to earn revenues for its project, the town

may not employ discriminatory regulation to give that

project an advantage over rival businesses from out of

State” (emphasis added)).

Today the Court dismisses those statements as “at best

inconclusive.” Ante, at 8, n. 3. The Court, however, fails

to offer any explanation as to what other meaning could

possibly attach to Carbone’s repeated references to Clark

stown’s transfer station as a municipal facility. It also

ignores the fact that the ordinance itself, which was in

cluded in its entirety in an appendix to the Court’s opin

ion, repeatedly referred to the station as “the Town of

Clarkstown solid waste facility.” 511 U. S., at 396, 398,

399. The Court likewise fails to acknowledge that the

parties in Carbone openly acknowledged the municipal

character of the transfer station. See Pet. for Cert., O. T.

1993, No. 92–1402, p. 5 (“The town’s designated trash

disposal facility is operated by a private contractor, under

an agreement with the town” (emphasis added)); Brief for

Petitioner, O. T. 1993, No. 92–1402, p. 26 (arguing that “it

is clear that the purported safety and health benefits of

[the flow control ordinance] derive simply from the contin

ued economic viability of the town’s waste facility” (em

phasis added; internal quotation marks omitted)); Brief for

Respondent, O. T. 1993, No. 92–1402, p. 8 (“The Town

entered into a contract with Clarkstown Recycling, Inc.,

which provided for that firm to build and operate the new

Town facility” (emphasis added)).

I see no ambiguities in those statements, much less any

reason to dismiss them as “at best inconclusive”; they

reflect a clear understanding that the station was, for all

purposes relevant to the dormant Commerce Clause, a

municipal facility.

6 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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III

In any event, we have never treated discriminatory

legislation with greater deference simply because the

entity favored by that legislation was a government-owned

enterprise. In suggesting otherwise, the Court relies un

duly on Carbone’s passing observation that “ ‘offending

local laws hoard a local resource—be it meat, shrimp, or

milk—for the benefit of local businesses.’ ” Ante, at 9

(emphasis in original). Carbone’s use of the word “busi

nesses,” the Court insists, somehow reveals that Carbone

was not “extending” our dormant Commerce Clause juris

prudence “to cover discrimination in favor of local govern

ment.” Ibid.

But no “exten[sion]” was required. The Court has long

subjected discriminatory legislation to strict scrutiny, and

has never, until today, recognized an exception for dis

crimination in favor of a state-owned entity.

A

This Court long ago recognized that the Commerce

Clause can be violated by a law that discriminates in favor

of a state-owned monopoly. In the 1890’s, South Carolina

enacted laws giving a state agency the exclusive right to

operate facilities selling alcoholic beverages within that

State, and these laws were challenged under the Com

merce Clause in Scott v. Donald, 165 U. S. 58 (1897), and

Vance v. W. A. Vandercook Co., 170 U. S. 438 (1898). The

Court held that the Commerce Clause barred the State

from prohibiting its residents from purchasing alcohol

from out-of-state vendors, see id., at 442, but that the

State could surmount this problem by allowing residents

to receive out-of-state shipments for their personal use.

See id., at 452. The Court’s holding was based on the

same fundamental dormant Commerce Clause principle

Cite as: 550 U. S. ____ (2007) 7

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 importing them from other States’ ” because

such discrimination is “ ‘a hindrance to interstate com

merce and an unjust preference of the products of the

enacting State as against similar products of other

States.’ ” 170 U. S., at 443 (quoting Scott, supra, at 101).

Cf., Carbone, supra, at 390 (the Commerce Clause bars

state and local laws that “impose commercial barriers or

discriminate against an article of commerce by reason of

its origin or destination out of State”).

Thus, were it not for the Twenty-first Amendment, laws

creating state-owned liquor monopolies—which many

States maintain today—would be deemed discriminatory

under the dormant Commerce Clause. See Granholm v.

Heald, 544 U. S. 460, 489 (2005) (explaining that the

Twenty-first Amendment makes it possible for States to

“assume direct control of liquor distribution through state-

run outlets”); see id., at 517–518 (THOMAS, J., dissenting)

(noting that, although laws creating a “state monopoly” in

the sale of liquor “discriminat[e]” against interstate com

merce, they are “within the ambit of the Twenty-first

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 processing and disposal services, either by means of

a government-owned monopoly or otherwise.

——————

1 See Granholm v. Heald, 544 U. S. 460, 517–518 (2005) (THOMAS, J.,

dissenting) (“These liquor regulation schemes discriminated against

out-of-state economic interests . . . . State monopolies that did not

permit direct shipments to consumers, for example, were thought to

discriminate against out-of-state wholesalers and retailers . . .” (citing

Vance, 170 U. S., at 451–452)).

8 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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B

Nor has this Court ever suggested that discriminatory

legislation favoring a state-owned enterprise is entitled to

favorable treatment. To be sure, state-owned entities are

accorded special status under the market-participant

doctrine. But that doctrine is not applicable here.

Under the market-participant doctrine, a State is per

mitted to exercise “ ‘independent discretion as to parties

with whom [it] will deal.’ ” Reeves, Inc. v. Stake, 447 U. S.

429, 438–439 (1980). The doctrine thus allows States to

engage in certain otherwise-discriminatory practices (e.g.,

selling exclusively to, or buying exclusively from, the

State’s own residents), so long as the State is “acting as a

market participant, rather than as a market regulator,”

South-Central Timber Development, Inc. v. Wunnicke, 467

U. S. 82, 93 (1984) (emphasis added).

Respondents are doing exactly what the market-

participant doctrine says they cannot: While acting as

market participants by operating a fee-for-service business

enterprise in an area in which there is an established

interstate market, respondents are also regulating that

market in a discriminatory manner and claiming that

their special governmental status somehow insulates them

from a dormant Commerce Clause challenge. See ibid.

Respondents insist that the market-participant doctrine

has no application here because they are not asserting a

defense under the market-participant doctrine, Brief for

Respondents 24–25, but that argument misses the point.

Regardless of whether respondents can assert a defense

under the market-participant doctrine, this Court’s cases

make clear that States cannot discriminate against inter

state commerce unless they are acting solely as market

participants. Today, however, the Court suggests, con

trary to its prior holdings, that States can discriminate in

favor of in-state interests while acting both as a market

participant and as a market regulator.

Cite as: 550 U. S. ____ (2007) 9

ALITO, J., dissenting

IV

Despite precedent condemning discrimination in favor of

government-owned enterprises, the Court attempts to

develop a logical justification for the rule it creates today.

That justification rests on three principal assertions.

First, the Court insists that it simply “does not make

sense to regard laws favoring local government and laws

favoring private industry with equal skepticism,” because

the latter are “often the product of ‘simple economic pro

tectionism,’ ” ante, at 10–11 (quoting Wyoming v. Okla

homa, 502 U. S. 437, 454 (1992)), while the former “may

be directed toward any number of legitimate goals unre

lated to protectionism,” ante, at 11. Second, the Court

reasons that deference to legislation discriminating in

favor of a municipal landfill is especially appropriate

considering that “ ‘[w]aste disposal is both typically and

traditionally a local government function.’ ” Ante, at 12

(quoting 261 F. 3d 245, 264 (CA2 2001) (Calabresi, J.,

concurring)). Third, the Court suggests that respondents’

flow-control laws are not discriminatory because they

“treat in-state private business interests exactly the same

as out-of-state ones.” Ante, at 13. I find each of these

arguments unpersuasive.

A

I see no basis for the Court’s assumption that discrimi

nation in favor of an in-state facility owned by the gov

ernment is likely to serve “legitimate goals unrelated to

protectionism.” Discrimination in favor of an in-state

government facility serves “ ‘local economic interests,’ ”

Carbone, 511 U. S., at 404 (O’Connor, J., concurring in

judgment) (quoting Raymond Motor Transp., Inc. v. Rice,

434 U. S. 429, 444, n. 18 (1978)), inuring to the benefit of

local residents who are employed at the facility, local

businesses that supply the facility with goods and ser

vices, and local workers employed by such businesses. It

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is therefore surprising to read in the opinion of the Court

that state discrimination in favor of a state-owned

business is not likely to be motivated by economic

protectionism.

Experience in other countries, where state ownership is

more common than it is in this country, teaches that

governments often discriminate in favor of state-owned

businesses (by shielding them from international competi

tion) precisely for the purpose of protecting those who

derive economic benefits from those businesses, including

their employees.2 Such discrimination amounts to eco

nomic protectionism in any realistic sense of the term.3

By the same token, discrimination in favor of an in

state, privately owned facility may serve legitimate ends,

such as the promotion of public health and safety. For

example, a State might enact legislation discriminating in

favor of produce or livestock grown within the State, rea

soning that the State’s inspectors can more easily monitor

the use of pesticides, fertilizers, and feed on farms within

the State’s borders. Such legislation would almost cer

tainly be unconstitutional, notwithstanding its potential to

promote public health and safety. See Philadelphia v.

——————

2 See, e.g., Owen, Sun, & Zheng, Antitrust in China: The Problem of

Incentive Compatibility, 1 J. of Competition L. & Econ. 123, 131–133

(2005); Qin, WTO Regulation of Subsidies to State-owned Enterprises

(SOEs)—A Critical Appraisal of the China Accession Protocol, 7 J. of

Int’l Econ. L. 863, 869–876 (Dec. 2004).

3 It therefore seems strange that the Commerce Clause, which has

historically been understood to protect free trade and prohibit States

from “plac[ing] [themselves] in a position of economic isolation,” Bald

win v. G. A. F. Seelig, Inc., 294 U. S. 511, 527 (1935), is now being

construed to condone blatantly protectionist laws on grounds that such

legislation is necessary to support governmental efforts to commandeer

the local market for a particular good or service. In adopting that

construction, the Court sends a bold and enticing message to local

governments throughout the United States: Protectionist legislation is

now permissible, so long as the enacting government excludes all

private-sector participants from the affected local market.

Cite as: 550 U. S. ____ (2007) 11

ALITO, J., dissenting

New Jersey, 437 U. S. 617, 627 (1978) (noting that the

Court has repeatedly invalidated legislation where “a

presumably legitimate goal was sought to be achieved by

the illegitimate means of isolating the State from the

national economy”).

The fallacy in the Court’s approach can be illustrated by

comparing a law that discriminates in favor of an in-state

facility, owned by a corporation whose shares are publicly

held, and a law discriminating in favor of an otherwise

identical facility that is owned by the State 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 bene

fits the corporation’s shareholders, most of whom are

probably not local residents, whereas the law favoring the

government-owned facility presumably benefits the people

of the enacting State or municipality. I cannot understand

why only the former law, and not the latter, should be

regarded as a tool of economic protectionism. Nor do I

think it is realistic or consistent with our precedents to

condemn some discriminatory laws as protectionist while

upholding other, equally discriminatory laws as lawful

measures designed to serve legitimate local interests

unrelated to protectionism.

For these reasons, I cannot accept the proposition that

laws discriminating in favor of state-owned enterprises

are so unlikely to be the product of economic protectionism

that they should be exempt from the usual dormant Com

merce Clause standards.

Proper analysis under the dormant Commerce Clause

involves more than an inquiry into whether the challenged

Act is in some sense “directed toward . . . legitimate goals

unrelated to protectionism”; equally important are the

means by which those goals are realized. If the chosen

means take the form of a statute that discriminates

against interstate commerce—“ ‘either on its face or in

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practical effect’ ”—then “the burden falls on [the enacting

government] to demonstrate both that the statute ‘serves

a legitimate local purpose,’ and that this purpose could not

be served as well by available nondiscriminatory means.”

Taylor, 477 U. S., at 138 (quoting Hughes v. Oklahoma,

441 U. S. 322, 336 (1979)).

Thus, if the legislative means are themselves discrimi

natory, then regardless of how legitimate and nonprotec

tionist the underlying legislative goals may be, the legisla

tion is subject to strict scrutiny. Similarly, the fact that a

discriminatory law “may [in some sense] be directed to

ward any number of legitimate goals unrelated to protec

tionism” does not make 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 it discriminates against interstate

commerce. And even then, the existence of legitimate

goals is not enough; discriminatory legislation can be

upheld only where such goals cannot adequately be

achieved through nondiscriminatory means. See, e.g.,

Philadelphia, supra, at 626–627 (“[T]he evil of protection

ism can reside in legislative means as well as legislative

ends,” such that “whatever [the State’s] purpose, it may

not be accomplished by discriminating against articles of

commerce coming from outside the State unless there is

some reason, apart from their origin, to treat them differ

ently”); Hunt v. Washington State Apple Advertising

Comm’n, 432 U. S. 333, 352–353 (1977) (explaining that

“we need not ascribe an economic protection motive to”

discriminatory laws; such laws are subject to strict scru

tiny even “if enacted for the declared purpose of protecting

consumers from deception and fraud in the marketplace”).

Dean Milk Co. v. Madison, 340 U. S. 349 (1951), is

instructive on this point. That case involved a dormant

Commerce Clause challenge to an ordinance requiring all

milk sold in Madison, Wisconsin, to be processed within

Cite as: 550 U. S. ____ (2007) 13

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 its

residents to the extent that it succeeded in guaranteeing

the purity and quality of the milk sold in the city. The

Court nevertheless invalidated the ordinance, concluding

that any public health benefits it may have conferred

could be achieved through “reasonable nondiscriminatory

alternatives,” including a system that would allow a

nonlocal dairy to qualify to sell milk in the city upon prov

ing that it was in compliance with applicable health and

safety requirements. Id., at 354–356.

The Court did not inquire whether the real purpose of

the ordinance was to benefit public health and safety or to

protect local economic interests; nor did the Court make

any effort to determine whether or to what extent the

ordinance may have succeeded in promoting health and

safety. In fact, the Court apparently assumed that the

ordinance could fairly be characterized as “a health meas

ure.” Id., at 354. The Court nevertheless concluded that

the ordinance could not stand because it “erect[ed] an

economic barrier protecting a major local industry against

competition from without the State,” “plac[ed] a discrimi

natory burden on interstate commerce,” and was “not

essential for the protection of local health interests.” Id.,

at 354, 356.

The overarching concern expressed by the Court was

that the ordinance, if left intact, “would invite a multipli

cation of preferential trade areas destructive of the very

purpose of the Commerce Clause.” Id., at 356. “Under the

circumstances here presented,” the Court concluded, “the

regulation must yield to the principle that ‘one state in its

dealings with another may not place itself in a position of

economic isolation.’ ” Ibid. (quoting Baldwin v. G. A. F.

Seelig, Inc., 294 U. S. 511, 527 (1935)).

The same reasoning dooms the laws challenged here.

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Like the ordinance in Dean Milk, these laws discriminate

against interstate commerce (generally favoring local

interests over nonlocal interests), but are defended on the

ground that they serve legitimate goals unrelated to pro

tectionism (e.g., health, safety, and protection of the envi

ronment). And while I do not question that the laws at

issue in this case serve legitimate goals, the laws offend

the dormant Commerce Clause because those goals could

be attained effectively through nondiscriminatory means.

Indeed, no less than in Carbone, those goals could be

achieved through “uniform [health and] safety regulations

enacted without the object to discriminate” that “would

ensure that competitors [to the municipal program] do not

underprice the market by cutting corners on environ

mental safety.” 511 U. S., at 393. Respondents would also

be free, of course, to “subsidize the[ir] [program] through

general taxes or municipal 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 discriminatory regulation to give that [program]

an advantage over rival businesses from out of State.”

Ibid.

B

The Court next suggests that deference to legislation

discriminating in favor of a municipal landfill is especially

appropriate considering that “ ‘[w]aste disposal is both

typically and traditionally a local government function.’ ”

Ante, at 12 (quoting 261 F. 3d, at 264 (Calabresi, J., con

curring)). I disagree on two grounds.

First, this Court has previously recognized that any

standard “that turns on a judicial appraisal of whether a

particular governmental function is ‘integral’ or ‘tradi

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

tice.’ ” Garcia v. San Antonio Metropolitan Transit Au

thority, 469 U. S. 528, 546–547 (1985). Indeed, the Court

Cite as: 550 U. S. ____ (2007) 15

ALITO, J., dissenting

has twice experimented with such standards—first in the

context of intergovernmental tax immunity, see South

Carolina v. United States, 199 U. S. 437 (1905), and more

recently in the context of state regulatory immunity under

the Commerce Clause, see National League of Cities v.

Usery, 426 U. S. 833 (1976)—only to abandon them later

as analytically unsound. See Garcia, supra, at 547 (over

ruling National League of Cities); New York v. United

States, 326 U. S. 572 (1946) (overruling South Carolina v.

United States). Thus, to the extent today’s holding rests

on a distinction between “traditional” governmental func

tions and their nontraditional counterparts, see ante, at

11, it cannot be reconciled with prior precedent.

Second, although many municipalities in this country

have long assumed responsibility for disposing of local

garbage, see Carbone, supra, at 419–420, and n. 10

(SOUTER, J., dissenting), most of the garbage produced in

this country is still managed by the private sector. See

Brief for National Solid Wastes Management Association

et al. as Amici Curiae 22 (“Today, nearly two-thirds of

solid waste received at landfills is received at private

sector landfills”); R. W. Beck, Inc. et al., Size of the United

States Solid Waste Industry, p. ES–3 (Apr. 2001) (study

sponsored by the Environmental Research and Education

Foundation) (noting that in 1999, 69.2% of the solid waste

produced in the United States was managed by privately

owned businesses). In that respect, the Court is simply

mistaken in concluding that waste disposal is “typically” a

local government function.

Moreover, especially considering the Court’s recognition

that “ ‘any notion of discrimination assumes a comparison

of substantially similar entities,’ ” ante, at 10 (quoting

General Motors Corp. v. Tracy, 519 U. S. 278, 298 (1997)),

a “traditional” municipal landfill is for present purposes

entirely different from a monopolistic landfill supported by

the kind of discriminatory legislation at issue in this case

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and in Carbone. While the former may be rooted in his

tory and tradition, the latter has been deemed unconstitu

tional until today. See Carbone, supra, at 392–393. It is

therefore far from clear that the laws at issue here can

fairly be described as serving a function “typically and

traditionally” performed by local governments.

C

Equally unpersuasive is the Court’s suggestion that the

flow-control laws do not discriminate against interstate

commerce because they “treat in-state private business

interests exactly the same as out-of-state ones.” Ante, at

13. Again, the critical issue is whether the challenged

legislation discriminates against interstate commerce. If

it does, then regardless of whether those harmed by it

reside entirely outside the State in question, the law is

subject to strict scrutiny. Indeed, this Court has long

recognized that “ ‘a burden imposed by a State upon inter

state commerce is not to be sustained simply because the

statute imposing it applies alike to the people of all the

States, including the people of the State enacting such

statute.’ ” Brimmer v. Rebman, 138 U. S. 78, 83 (1891)

(quoting Minnesota v. Barber, 136 U. S. 313, 326 (1890));

accord, Fort Gratiot Sanitary Landfill, 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 laws at issue

here apply to in-state and out-of-state businesses alike.4

See Carbone, supra, at 391 (“The [flow-control] ordinance

is no less discriminatory because in-state or in-town proc

——————

4 A law granting monopoly rights to a single, local business clearly

would not be immune from a dormant Commerce Clause challenge

simply because it excluded both in-state and out-of-state competitors

from the local market. See C & A Carbone, Inc. v. Clarkstown, 511

U. S. 383, 391 (1994). It is therefore strange for the Court to attach any

significance to the fact that the flow-control laws at issue here apply to

in-state and out-of-state competitors alike.

Cite as: 550 U. S. ____ (2007) 17

ALITO, J., dissenting

essors are also covered by the prohibition”).

* * *

The dormant Commerce Clause has long been under

stood to prohibit the kind of discriminatory legislation

upheld by the Court in this case. I would therefore re

verse the decision of the Court of Appeals.