Norwegian Cruise Line Holdings Ltd v. State Surgeon General

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12729

____________________

NORWEGIAN CRUISE LINE HOLDINGS LTD,

a Bermuda Company,

NCL (BAHAMAS), LTD.,

a Bermuda Company agent of Norwegian Cruise Line,

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

d.b.a. Regent Seven Seas Cruises,

OCEANIA CRUISES S. DE R.L.,

d.b.a. Oceania Cruises,

Plaintiffs-Appellees,

versus

STATE SURGEON GENERAL,

Florida Department of Health, in his official capacity,

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2 Opinion of the Court 21-12729

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

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

____________________

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

Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal concerns whether a Florida statute that prohib-

its all businesses operating in the state from requiring customers to

provide documentary proof that they are vaccinated against

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

Constitution. Norwegian Cruise Line Holdings Ltd., a corporation

headquartered in Florida, operates cruise ships that travel around

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

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

requires its customers to provide proof of vaccination. Florida

sought to protect its residents from that kind of discrimination by

enacting a statute that prohibits businesses from “requir[ing] pa-

trons or customers to provide any documentation certifying

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

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

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21-12729 Opinion of the Court 3

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

General and moved for a preliminary injunction. The district court

entered a preliminary injunction on the grounds that the statute

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

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

see U.S. CONST. art. I, § 8, cl. 3.

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

regulation of economic conduct that only incidentally burdens

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

burdens on interstate commerce do not exceed the benefits of fur-

thering Florida’s substantial interests in protecting its residents

from discrimination and invasions of privacy.

I. BACKGROUND

After March 2020, the COVID-19 pandemic took a substan-

tial toll on the cruise industry. Although some cruise lines volun-

tarily suspended operations, not all did. See 85 FED. REG. 16628,

16631 (Mar. 24, 2020). As a result, the federal government pub-

lished a No Sail Order and generally prohibited cruise-ship opera-

tions. Id. For more than a year, Norwegian’s “entire 28-vessel fleet

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

operations in that time allegedly cost Norwegian more than $6 bil-

lion.

Later that year, the Centers for Disease Control and Preven-

tion published another order that “establishe[d] a framework for a

phased approach to resuming cruise ship passenger operations in

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4 Opinion of the Court 21-12729

U.S. waters.” 85 FED. REG. 70153, 70153 (Nov. 4, 2020). The condi-

tional sailing order included the “[e]stablishment of laboratory test-

ing of crew onboard cruise ships in U.S. waters”; “simulated voy-

ages designed to test a cruise ship operators’ ability to mitigate

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

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

COVID-19 introduction, transmission, or spread among passen-

gers and crew onboard ships and ashore to communities.” Id. And

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

laboratory screening testing of all crew”; “onboard diagnostic test-

ing capabilities for symptomatic travelers”; “shoreside COVID-19

laboratory screening testing of all newly embarking crew”; and

“continued compliance with complete, accurate, and acknowl-

edged, No Sail Order Response Plans.” Id.

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

Colleagues.” The letter included updates for fully vaccinated pas-

sengers and crew. “In lieu of conducting a simulated voyage” as

announced in the phased approach, cruise ship operators could

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

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

have been verified by the cruise ship operator as fully vaccinated

prior to sailing.”

The State of Florida sued the Centers and moved for a pre-

liminary injunction on the ground that the conditional sailing order

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

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

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preliminarily enjoined the Centers “from enforcing against a cruise

ship arriving in, within, or departing from a port in Florida the con-

ditional sailing order and the later measures.” Id. at 1305. The Cen-

ters appealed to this Court and requested a stay of the injunction.

After we first granted that request, we sua sponte vacated our ini-

tial order and denied the Centers’ request for a stay. See Florida v.

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

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

appeal and we granted that motion. So, the conditional sailing or-

der and later instructions are now non-binding guidelines, but all

cruise lines operating in Florida have voluntarily complied.

Norwegian planned to resume sailing from Florida for the

first time “aboard the Norwegian Gem.” On July 9, 2021, the Cen-

ters approved Norwegian’s application for a conditional sailing cer-

tificate. Norwegian “attested to [the Centers] . . . that at least 95%

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

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

marks omitted.) When Norwegian submitted its attestation, it

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

the crews’ COVID-19 vaccination status through documentation,

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

vaccination status in this context.”

Florida acted to discourage and prohibit businesses from re-

quiring vaccination documents as a condition of service. Governor

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

in Florida are prohibited from requiring patrons or customers to

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provide any documentation certifying COVID-19 vaccination or

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

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

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

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

explained that “many Floridians have not yet had the opportunity

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

immunity, and others may be unable to obtain a COVID-19 vac-

cination due to health, religious, or other reasons.” Id. at 1. The

order also stated that “individual COVID-19 vaccination records

are private health information which should not be shared by man-

date” and that “COVID-19 vaccine passports reduce individual

freedom and will harm patient privacy.” Id.

The next month, the Florida Legislature enacted a statute

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

The statute prohibits vaccine-documentation requirements as fol-

lows:

[A]ny business operating in this state . . . may not re-

quire patrons or customers to provide any documen-

tation certifying COVID-19 vaccination or postinfec-

tion recovery to gain access to, entry upon, or service

from the business operations in this state. This sub-

section does not otherwise restrict businesses from in-

stituting screening protocols consistent with authori-

tative or controlling government-issued guidance to

protect public health.

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

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

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

The proponents of the legislation based their support on rea-

sons like those of the Governor. In the House, Representative Tom

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

Committee—reasoned that the statute would protect a substantial

minority population from discrimination:

We must recognize that vaccine hesitancy is real and

understandable. Don’t get me wrong: . . . get vac-

cinated. Please! Get vaccinated; let’s return to nor-

mal. But recognize that it is fair for certain segments

of our community to be hesitant about getting the

vaccine, and that it is absolutely true that the largest

segment of our community that is vaccination-hesi-

tant is our minority population. It was not anti-free-

dom nor wrong when the State stepped in and said

that employers could not discriminate on the basis of

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

State told landlords that they could not discriminate

against people with disabilities. And it is right today

for the State to tell businesses that they may not—

may not—enact policies that unfairly and disparately

discriminate against our minority populations.

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

2:29:37 (Apr. 28, 2021), https://www.flsenate.gov/media/Video-

Player?EventID=1_2usodgs8-202104281030&Redirect=true. Rep-

resentative Leek also explained that the “bill protects the rights of

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8 Opinion of the Court 21-12729

a material portion of our minority population who remains vaccine

hesitant.” Id. at 2:30:45–2:30:56. Representative Mike Beltran ex-

plained that news reports confirmed the existence of discrimination

against people based on vaccination status and concluded that “we

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

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

In the Senate, Senator Danny Burgess reasoned along simi-

lar lines. He explained that the Legislature was “making sure

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

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

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

2021), https://www.flsenate.gov/media/VideoPlayer?Even-

tID=1_3wpkrnbb-202104291000&Redirect=true. He added that

the “vaccine is not mandated and we have exemptions already

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

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

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

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

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

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

The cruise industry did not uniformly adopt a vaccination

requirement for all passengers. Carnival Cruise Line, Royal Carib-

bean International, Celebrity Cruises, and MSC Cruises each “al-

lowed at least some unvaccinated passengers to sail, although the

policy regarding the number of unvaccinated passengers permitted

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

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

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

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

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

of vaccinated guests.” Norwegian took a more restrictive approach

that would exclude all unvaccinated persons from their cruises. In-

deed, Norwegian “promised its passengers 100% vaccinated cruises

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

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

Norwegian and several of its wholly owned subsidiaries

sued the Surgeon General of Florida in his official capacity and

moved for “[p]reliminary and permanent injunctive relief prevent-

ing [the Surgeon General] from enforcing Florida Statute

§ 381.00316 against [Norwegian], including any subsidiaries, oper-

ators or agents” and a “declaration that [the statute] is unlawful as

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

[intended to] require documentation confirming that its passengers

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

prohibits [Norwegian] from requiring such documentation.” Nor-

wegian asserted that the statute “blocks communications between

a business and its customers . . . in violation of the First Amend-

ment” and “profoundly disrupts the proper flow of interstate and

international commerce without advancing any substantial state

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

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

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

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

a mandatory quarantine, or proof of vaccination to enter without

testing.” Norwegian “scheduled several upcoming voyages to for-

eign ports that require proof of vaccination to enter without test-

ing, including Belize, Bahamas, British Virgin Islands, and Hondu-

ras.” (Emphasis added.) “As such, [Norwegian] . . . planned cruises

requiring proof that 100% of passengers and crew have been vac-

cinated against COVID-19.” Norwegian alleged that it “cannot ver-

ify its passengers’ COVID-19 vaccination status unless it can re-

quire passengers to show documentation certifying that they are

fully vaccinated” because “[t]here is no adequate substitute for doc-

umentary proof when it comes to confirming vaccination status.”

Because “the only way for [Norwegian] to require vaccine docu-

mentation . . . would be by eschewing operations in Florida,” Nor-

wegian alleged that its “operations will be impaired and it will lose

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

disrupt and even shut down the interstate and foreign cruise oper-

ations of [Norwegian].” And the statute allegedly burdens Norwe-

gian’s speech because it “restricts the transmission of information

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

documentation ‘certifying COVID-19 vaccination or postinfection

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

In an affidavit Norwegian filed in the district court, Dr. Ste-

phen Ostroff explained that “[r]equiring that all passengers and

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

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

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lines [cannot] effectively implement passenger and crew vaccina-

tion requirements” without “an adequate way to verify vaccination

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

evade public health screening protocols.”

Norwegian’s Chief Executive Officer, Frank J. Del Rio, ex-

plained in an affidavit that “80% of cruise passengers would prefer

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

confidence and goodwill is essential for sustainable business suc-

cess in the cruise industry.” He also explained that “requiring full

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

vaccination protocols required by many foreign ports where [Nor-

wegian] ships are scheduled to visit.” He reported that “[n]o other

jurisdiction that [Norwegian] operates in around the world prohib-

its documenting passengers’ vaccination status as Florida now

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

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

also result in a loss or diminishment of employment for [Norwe-

gian] employees in South Florida.”

Norwegian moved for a preliminary injunction, which the

district court granted. The district court enjoined the Surgeon Gen-

eral “from enforcing [s]ection 381.00316 against [Norwegian] pend-

ing resolution of the merits of this case.” It “f[ound] that [Norwe-

gian] [was] entitled to a preliminary injunction because [it] ha[d]

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

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

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

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12 Opinion of the Court 21-12729

(3) that the equities and public interest weigh in favor of an injunc-

tion.” On the First Amendment claim, the district court ruled that

section 381.00316 is a content-based restriction; it rejected the ar-

gument that section 381.00316 is an economic regulation of con-

duct that only incidentally burdens speech; and it held that the stat-

ute fails to survive heightened scrutiny. On the Dormant Com-

merce Clause claim, it ruled that section 381.00316 “does not di-

rectly regulate, or affirmatively discriminate against, interstate

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

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

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

statute “does not implicate concerns about local economic protec-

tionism raised by courts that” enjoin statutes that do. applied the

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

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

of medical privacy and antidiscrimination are fulfilled by the ex-

press terms of the [s]tatute.” And it ruled that the burdens on inter-

state commerce are likely to be clearly excessive in relation to the

putative local benefits of the statute.

After the Surgeon General filed this appeal, Norwegian iden-

tified two destinations that had since required all passengers aged

12 and older to be fully vaccinated for ships to enter port—the Ba-

hamas and the United States Virgin Islands. But before oral argu-

ment, the Surgeon General notified this Court that the govern-

ments of those destinations now allow unvaccinated persons to en-

ter with negative COVID-19 tests. See Emergency Powers (Covid-

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19 Pandemic) (Management and Recovery) (No.2) (Amendment)

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

19, 2021) (specifying that the order is “[e]ffective the 3rd day of Sep-

tember, 2021 until the 1st day of November, 2021”); Travel Proto-

cols, THE BAHAMAS (Apr. 2, 2022), https://travel.gov.bs/file/trav-

elProtocols; Thirty-Fifth Supplemental Executive Order and Proc-

lamation by the Governor of the United States Virgin Islands § 4,

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

II. STANDARD OF REVIEW

“We review a district court’s grant of a preliminary injunc-

tion for abuse of discretion.” Fed. Trade Comm’n v. On Point Cap.

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

preliminary injunction’s underlying legal conclusions de novo and

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

III. DISCUSSION

“A preliminary injunction is an extraordinary remedy never

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

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

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

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

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

prove that it will suffer irreparable injury unless the injunction is-

sues. Id. Third, it must prove that the injury that threatens it “out-

weighs whatever damage the proposed injunction may cause the

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

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

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

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

Norwegian is unlikely to succeed on the merits of its First Amend-

ment claim. Second, we explain that Norwegian is unlikely to suc-

ceed on the merits of its Dormant Commerce Clause claim.

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

Amendment Claim.

“The First Amendment, applicable to the States through the

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

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

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

command generally removes from governments the “power to re-

strict expression because of its message, its ideas, its subject matter,

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

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

content” are “presumptively unconstitutional and may be justified

only if the government proves that they are narrowly tailored to

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

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

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

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

content-based restriction of speech subject to heightened scrutiny.

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

First Amendment because it is a regulation of economic conduct

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that only incidentally burdens speech. Norwegian argues that the

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

strict or intermediate scrutiny.

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

it may sometimes be difficult to figure out what constitutes speech

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

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

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

Statutes that regulate non-expressive conduct do “not impli-

cate the First Amendment at all” even if they incidentally burden

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

expression are distinct from restrictions on economic activity or,

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

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

prevent restrictions directed at commerce or conduct from impos-

ing incidental burdens on speech.” Id. The Supreme Court has long

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

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

was in part initiated, evidenced, or carried out by means of lan-

guage, either spoken, written, or printed.” Ohralik v. Ohio State

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

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

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

deemed harmful to the public whenever speech is a component of

the activity.” Id. And it has rejected the contention “that the con-

stitutional freedom for speech . . . extends its immunity to speech

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

criminal statute.” Giboney, 336 U.S. at 498. That “expansive inter-

pretation” of the First Amendment “would make it practically im-

possible ever to enforce laws against agreements in restraint of

trade as well as many other agreements and conspiracies deemed

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

non-expressive economic conduct that only incidentally burdens

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

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

Anti-discrimination statutes ordinarily regulate non-expres-

sive conduct. The “focal point” for their prohibitions is “on the act

of discriminating against individuals in the provision of publicly

available goods, privileges, and services on the proscribed

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

Bos., Inc., 515 U.S. 557, 572 (1995) (emphasis added). Enacting anti-

discrimination statutes is “well within the State’s usual power . . .

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

target of discrimination, and . . . do[es] not, as a general matter, vi-

olate the First or Fourteenth Amendments.” Id. For that reason,

“philosophical objections” do not generally “allow business owners

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

persons equal access to goods and services under a neutral and gen-

erally applicable public accommodations law.” Masterpiece

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

(2018). “Where the government does not target conduct on the ba-

sis of its expressive content, acts are not shielded from regulation

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merely because they express a discriminatory idea or philosophy.”

R.A.V. v. City of St. Paul, 505 U.S. 377, 390 (1992). And the Su-

preme Court has repeatedly applied these principles in rejecting

First Amendment challenges to anti-discrimination statutes. See,

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

& Spalding, 467 U.S. 69, 78 (1984) (rejecting the argument “that ap-

plication of Title VII . . . would infringe constitutional rights of ex-

pression” because “invidious private discrimination . . . has never

been accorded affirmative constitutional protections” (alteration

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

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

First Amendment right to send their children to educational insti-

tutions that promote the belief that racial segregation is desirable,

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

from such institutions is also protected”).

Section 381.00316 is an anti-discrimination statute that reg-

ulates non-expressive economic conduct. The statute prohibits

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

customers to provide any documentation certifying COVID-19

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

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

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

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

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

of the statute prohibits the same action as any run-of-the-mill anti-

discrimination statute: closing the business’s doors to a class of

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18 Opinion of the Court 21-12729

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

572. A business violates section 381.00316 when it commits the

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

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

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

STAT. ANN. § 381.00316(1). It prohibits businesses from discriminat-

ing by “treat[ing] differently” vaccinated and unvaccinated persons

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

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

those who either cannot or desire not to comply with the pro-

scribed condition. See FLA. STAT. ANN. § 381.00316(1). So, section

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

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

176.

Section 381.00316(1) does “not implicate the First Amend-

ment at all.” See Otto, 981 F.3d at 861. Section 381.00316(1)

“appl[ies] to non-expressive conduct such as failing to,” see Woll-

schlaeger, 848 F.3d at 1317, grant persons who are unwilling or un-

able to verify their vaccination status “access to, entry upon, or ser-

vice from the business operations,” FLA. STAT. ANN. § 381.00316(1).

And when the statute regulates non-expressive conduct in that

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

F.3d at 1317.

Norwegian argues that the statute regulates communica-

tions between businesses and customers. It argues that “Florida’s

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

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information by targeting only one type of written information ex-

change.” It adopts the view of the district court that section

381.00316 “regulates speech because it restricts the free flow of in-

formation by rendering the exchange permissible in some circum-

stances but impermissible in others.” And it maintains that “[t]he

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

specific information (vaccination against COVID-19) between a

specific speaker and audience (customer to business)” because

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

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

disagree.

Section 381.00316(1) limits no communications between

customers and businesses. Norwegian concedes that the statute

does not prohibit businesses from asking customers about their

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

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

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

asking potential applicants specific questions” about wage history

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

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

does not prohibit customers from responding—orally or in writ-

ing—with that information and proof. Cf. Wollschlaeger, 848 F.3d

at 1307 (holding that provisions “trigger[ed] First Amendment scru-

tiny” because they “expressly limit[ed] the ability of certain speak-

ers—doctors and medical professionals—to write and speak about

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20 Opinion of the Court 21-12729

a certain topic—the ownership of firearms—and thereby re-

strict[ed] their ability to communicate and/or convey a message”).

What businesses may not do is close their doors to custom-

ers who decline to present private medical documentation. See

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

persons is prohibited, not any communicative exchange between

them and the businesses that would like to discriminate against

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

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

content-based restrictions on speech” that “limit a category of peo-

ple—[such as businesses]—from communicating a particular mes-

sage.” Cf. Otto, 981 F.3d at 863 (internal quotation marks omitted)

(holding that regulations of therapists were speaker-focused and

content-based restrictions because they expressly restricted thera-

pists “from communicating a particular message”).

To be sure, Norwegian correctly asserts that the statute does

not prohibit requiring oral verification of vaccination status, see

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

statute does not prohibit all conceivable discriminatory conduct

against unvaccinated and privacy-concerned persons. Likewise, a

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

customers to provide any documentation certifying” that they are

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

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

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

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

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21-12729 Opinion of the Court 21

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

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

such individual’s . . . national origin.”); 42 U.S.C. § 2000d (“No per-

son in the United States shall, on the ground of . . . national origin,

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

subjected to discrimination under any program or activity receiv-

ing Federal financial assistance.”). Different statutes can target dif-

ferent instances of the same kind of evil. And governments need

not eliminate all discrimination whenever they wish to eliminate

any. See Katzenbach v. Morgan, 384 U.S. 641, 657 (1966) (“[I]n de-

ciding the constitutional propriety of the limitations in . . . a[n anti-

discrimination] measure we are guided by the familiar principles

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

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

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

addressing itself to the phase of the problem which seems most

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

marks omitted)).

The only speech that section 381.00316(1) burdens is inci-

dental to its direct prohibition of the discriminatory conduct of ex-

cluding persons the statute protects. “We recognize . . . the long-

standing principle that valid regulations of conduct might sweep

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

businesses may request documentary proof of vaccination status,

they cannot use words to exclude people who decline that re-

quest—“in that case, sir, you may not enter.” But burdens to that

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22 Opinion of the Court 21-12729

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

Amendment when the statute is “directed at commerce or con-

duct.” Sorrell, 564 U.S. at 567. “That is why a ban on race-based

hiring may require employers to remove ‘White Applicants Only’

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

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

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

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

ground of any expressive idea that the statement communicates,

but rather because it facilitates the threat of discriminatory con-

duct.” See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 208 (3d

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

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

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

id.

To be sure, anti-discrimination statutes can sometimes of-

fend the First Amendment. See Wollschlaeger, 848 F.3d at 1317.

Anti-discrimination statutes offend the First Amendment when

they “declar[e] [another’s] speech . . . to be the public accommoda-

tion” to which protected persons must be given access for their

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

application of [an anti-discrimination] statute had the effect of de-

claring” a parade that had an “expressive character . . . to be [a] pub-

lic accommodation”). And they can also give offense if the regu-

lated conduct is, as Norwegian argues here, expressive.

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21-12729 Opinion of the Court 23

Section 381.00316(1) does not burden speech or expressive

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

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

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

id. at 572–73. And the Supreme Court has “extended First Amend-

ment protection only to conduct that is inherently expressive.”

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

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

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

expressing its disapproval of the” unvaccinated passengers, “all

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

that they would rather” go on A. See id. “The expressive compo-

nent” of Norwegian’s “actions is not created by the conduct itself

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

explanatory speech is necessary is strong evidence that the conduct

at issue here”—denying service to people—“is not so inherently ex-

pressive that it warrants protection.” See id.; see also id. (“If com-

bining speech and conduct were enough to create expressive con-

duct, a regulated party could always transform conduct into

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

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

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

goods and services.” Masterpiece, 138 S. Ct. at 1727. And its cruise-

line “services lack the expressive quality of a parade, a newsletter,

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

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

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

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24 Opinion of the Court 21-12729

Supreme Court precedent confirms our conclusion that sec-

tion 381.00316(1) regulates economic conduct. In Rumsfeld v. Fo-

rum for Academic and Institutional Rights, Inc., the Supreme

Court considered a statute that “prevents an institution from re-

ceiving certain federal funding if it prohibits military recruiters

from gaining access to campuses, or access to students on cam-

puses, for purposes of military recruiting in a manner that is at least

equal in quality and scope” to other employers. 547 U.S. at 54 (al-

teration adopted) (internal quotation marks omitted). Law schools

that sought to exclude for political reasons military recruiters from

their campuses argued that the statute violates the First Amend-

ment. Id. at 52–53. The Supreme Court rejected that contention.

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

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

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

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

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

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

say.” Id. And it likened the statute to permissible anti-discrimina-

tion statutes that regulate conduct. Id. at 62. The same reasoning

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

Amendment: it affects what Norwegian “must do—afford equal ac-

cess to” those who cannot or do not disclose their own private

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

say.” See id. at 60.

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21-12729 Opinion of the Court 25

Our en banc decision in Wollschlaeger v. Governor also es-

tablishes that section 381.00316(1) regulates non-expressive con-

duct. In that decision, we considered a Florida statute that “prohib-

its discrimination ‘against a patient based solely’ on his or her own-

ership and possession of a firearm.” 848 F.3d at 1317 (quoting FLA.

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

“appl[ies] to non-expressive conduct such as failing to return mes-

sages, charging more for the same services, declining reasonable

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

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

firearms.” Id. And we can similarly uphold section 381.00316(1) be-

cause it regulates non-expressive conduct such as “failing to” admit

someone who lacks vaccination documentation on board a cruise

ship. See id.

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

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

(2017), is unavailing. Both decisions involved statutes that prohib-

ited speakers from conveying information in particular ways. And

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

prohibition.

In Sorrell, the Supreme Court invalidated a state statute that

prohibited “pharmacies, health insurers, and similar entities from

selling prescriber-identifying information . . . to pharmaceutical

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

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

manufacturers and detailers from using the information for

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26 Opinion of the Court 21-12729

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

“prohibits pharmaceutical manufacturers from using the infor-

mation for . . . marketing, that is, speech with a particular content.”

Id. at 564. It explained that the statute prohibits the sale of that in-

formation to recipients who will use it for marketing, but not to

“those who wish to engage in certain educational communica-

tions.” Id. (internal quotation marks omitted). And the Supreme

Court confronted “a case in which the government [had] pro-

hibit[ed] a speaker from conveying information that the speaker al-

ready possesse[d],” a prohibition that “implicated” “[a]n individ-

ual’s right to speak.” Id. at 568 (emphasis added) (internal quotation

marks omitted).

Section 381.00316(1), by contrast, does not prohibit the con-

veyance of any information in either direction, and it in no way

subjects to any restraints the communication of any information

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

posite.

Norwegian’s reliance on Expressions Hair Design is simi-

larly unavailing. In that decision, the Supreme Court held that a

statute that prohibited merchants from imposing a surcharge on

credit card users but did not prohibit them from offering discounts

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

S. Ct. at 1146–47. The Court explained that “typical price regula-

tion[s]” regulate the “seller’s conduct” and only “indirectly dictate

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

regulation declares that a sandwich shop must charge $10 for

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21-12729 Opinion of the Court 27

sandwiches, the regulation would regulate “the amount that a

store could collect,” and would incidentally involve communi-

cating to customers that the price for a sandwich is $10. Id. But the

ban on surcharges told “merchants nothing about the amount they

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

1151. Instead, the ban “regulate[d] . . . how sellers [could] com-

municate their prices.” Id. A seller could communicate that the

price is $10.30, with a $0.30 cash discount, but could not communi-

cate that the price is $10.00, plus $0.30 for credit card users. Id. “In

regulating the communication of prices rather than prices them-

selves, [the statute] regulate[d] speech.” Id. Section 381.00316(1),

by contrast, does not tell businesses how they may describe per-

missible conduct to customers. Cf. Dana’s R.R. Supply v. Att’y

Gen., 807 F.3d 1235, 1245 (11th Cir. 2015) (“Calling [a Florida stat-

ute] a ‘no-surcharge law,’ then, is something of a misnomer. The

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

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

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

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

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

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

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

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

particular legislative measure was a rational way to correct it.” Wil-

liamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955). Sec-

tion 381.00316(1) bears a rational relationship to the State’s

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28 Opinion of the Court 21-12729

substantial interests in protecting its residents from discrimination

and burdens to privacy because it prohibits businesses from exclud-

ing people who cannot or wish not to produce private medical doc-

umentation.

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

Commerce Clause Claim.

The Commerce Clause provides that “Congress shall have

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

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

this clause expressly concerns Congress’s power, the Supreme

Court has discerned a dormant or negative aspect that limits the

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

commerce. “The Dormant Commerce Clause prohibits regulatory

measures designed to benefit in-state economic interests by bur-

dening out-of-state competitors.” Island Silver & Spice, Inc. v. Is-

lamorada, 542 F.3d 844, 846 (11th Cir. 2008) (internal quotation

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

the Dormant Commerce Clause: “by discriminating against inter-

state commerce or . . . by unduly burdening interstate commerce.”

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

(11th Cir. 2012).

A regulation violates the Dormant Commerce Clause only

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

First, protectionist regulations that directly discriminate against in-

terstate commerce, or that have “the effect of favoring in-state eco-

nomic interests,” are invalid unless they “advance a legitimate local

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21-12729 Opinion of the Court 29

purpose that cannot be adequately served by reasonable nondis-

criminatory alternatives.” Id. (alteration adopted) (internal quota-

tion marks omitted). These regulations are unconstitutional if the

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

703 F.3d at 1244. Second, “if the law or regulation advances a legit-

imate local interest and has only indirect effects on interstate com-

merce, we apply the balancing test from Pike.” Id. at 1244 (internal

quotation marks omitted).

The district court correctly ruled that section 381.00316(1)

neither directly nor indirectly discriminates against interstate com-

merce. Accord Dissenting Op. at 13 n.20. Indeed, the statute ex-

pressly regulates all and only “business[es] operating in [Florida]”—

both local and out-of-state—for their “business operations in [Flor-

ida].” See FLA. STAT. ANN. § 381.00316(1). And the parties agree

that the statute survives this test.

The sole question then is whether section 381.00316(1) sat-

isfies Pike’s balancing test: “Where the statute regulates even-hand-

edly to effectuate a legitimate local public interest, and its effects

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

the burden imposed on such commerce is clearly excessive in rela-

tion to the putative local benefits.” Pike, 397 U.S. at 142. Under this

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

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

purpose in enacting section 381.00316(1), we weigh the local bene-

fits of enforcing the statute against the burdens imposed on inter-

state commerce. Id. Only if the burdens on interstate commerce

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30 Opinion of the Court 21-12729

clearly exceed the local benefits of section 381.00316 will we inval-

idate that statute. See Fla. Transp. Servs., 703 F.3d at 1244. “And

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

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

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

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

The Surgeon General asserts two state interests. First, the

Surgeon General asserts that Florida has an interest in ensuring that

businesses operating within the state do not discriminate against its

citizens for failure to provide documentation of vaccination status.

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

protecting the medical privacy of its residents.

Protecting residents from economic discrimination is a sub-

stantial interest. That interest derives from the State’s traditional

“police powers to protect” the well-being of its residents. See Med-

tronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996). “The States tradition-

ally have had great latitude under their police powers to legislate

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

of all persons”—latitude that includes regulating economic rela-

tionships. See Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724,

756 (1985) (internal quotation marks omitted); see also id. (explain-

ing that “States possess broad authority under their police powers

to regulate the employment relationship” (internal quotation

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

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

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

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21-12729 Opinion of the Court 31

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

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

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

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

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

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

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

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

harmful effects of discrimination,” “a substantial interest” that con-

sists in “assuring its residents that it will act to protect them from”

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

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

that its residents are able to obtain health care without discrimina-

tion”). So protecting residents from being excluded from access to

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

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

Pike, 397 U.S. at 142.

It is true, as the dissent states, that deference is not war-

ranted whenever a state asserts that it is promoting its economy or

protecting a domestic industry. Dissenting Op. at 24. But this stat-

ute directly protects a class of individuals from being ostracized.

Like any antidiscrimination statute, it protects these individuals by

preventing businesses from excluding them from the market. See

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

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

economic impact. Without this statute, unvaccinated Floridians

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32 Opinion of the Court 21-12729

risk being turned away from the businesses that make their lives

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

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

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

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

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

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

n.1. Florida’s interest in protecting the unvaccinated from discrim-

ination—not generally promoting its economy—is legitimate.

In similar fashion, the dissent relies on a footnote in the Su-

preme Court’s decision in Head v. New Mexico Bd. of Exam’rs in

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

interest is insubstantial because economic well-being has an atten-

uated connection to public health. Dissenting Op. at 25. But Head

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

New Mexico law that prevented the publication of price advertis-

ing of eyeglasses by a local newspaper and radio station. 374 U.S.

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

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

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

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

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

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

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

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

the state’s legitimate interest in prohibiting businesses from

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21-12729 Opinion of the Court 33

excluding its citizens from the interstate market. The Supreme

Court has already recognized this interest is a substantial one, Ba-

rez, 458 U.S. at 609, and Head says nothing to the contrary.

The state interest in protecting the privacy of residents is

also substantial. “We recognize that protection of individual pri-

vacy is a substantial government interest.” Wollschlaeger, 848 F.3d

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

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

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

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

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

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

of ” party affiliation is not “a ‘compelling’ one” because that “spe-

cific privacy interest . . . is not [like] the confidentiality of medical

records or personal finances”).

Taken together, the two state interests are plainly weighty.

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

from economic ostracism based on their hesitancy to divulge to

businesses private medical information. And that weighty state in-

terest is dispositive here.

Because Florida’s substantial interests are in matters tradi-

tionally of state concern, the burdens section 381.00316(1) imposes

on interstate commerce do not clearly exceed its putative local ben-

efits. The Supreme Court has explained “that a State’s power to

regulate commerce is never greater than in matters traditionally of

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

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34 Opinion of the Court 21-12729

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

touch upon safety,” regulations that “the Court has been most re-

luctant to invalidate.” Id. (internal quotation marks omitted). And

“if safety justifications are not illusory, the Court will not second-

guess legislative judgment about their importance in comparison

with related burdens on interstate commerce.” Id. (internal quota-

tion marks omitted). The rationale for that strong deference to leg-

islative judgments applies to other “example[s]” of “a State’s power

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

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

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

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

the public health or safety does not insulate a state law from Com-

merce Clause attack[s]” if “[r]egulations designed for that salutary

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

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

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

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

also cannot “second guess the legislature’s judgment as to the rela-

tive importance of [those] justifications versus any burdens im-

posed on interstate commerce.” Locke v. Shore, 634 F.3d 1185,

1194–95 (11th Cir. 2011).

The dissent attempts to evade the fact that section

381.00316(1) is a traditional well-being regulation by implicitly re-

lying on the false premise that such a regulation would have to pro-

mote residents’ physical health and safety. The dissent asserts that

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21-12729 Opinion of the Court 35

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

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

the traditional police power of the state includes promoting resi-

dents’ economic health and safety, Barez, 458 U.S. at 609. Florida

is entitled to promote that interest over possible benefits to resi-

dents’ physical health and safety. And the dissent ignores the sec-

ondary health effects of economic harm of which the Legislature

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

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

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

The decision of the Supreme Court in Minnesota v. Clover

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

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

Minnesota Legislature enacted a statute banning the retail sale of

milk in plastic nonreturnable, nonrefillable containers, but permit-

ting such sale in other nonreturnable, nonrefillable containers,

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

legislation argued that it would promote resource conservation,

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

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

Protection, Due Process, and Dormant Commerce Clauses, the

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

as a fact that “the Act w[ould] not succeed in effecting the Legisla-

ture’s published policy goals.” Id. at 460. The Supreme Court of

Minnesota affirmed “on the federal equal protection and due pro-

cess grounds” based on that finding. Id. at 460–61 (internal

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36 Opinion of the Court 21-12729

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

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

clearly excessive in light of the substantial state interest in promot-

ing conservation of energy and other natural resources and easing

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

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

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

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

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

its Commerce Clause analysis).

The Supreme Court made clear the great deference owed to

legislatures when their asserted interests are substantial. “Whether

in fact the Act will promote more environmentally desirable milk

packaging is not the question”; the question is whether the “Legis-

lature could rationally have decided that its ban on plastic nonre-

turnable milk jugs might foster greater use of environmentally de-

sirable alternatives.” Id. at 466. The Court explained that the state

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

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

courts, to decide on the wisdom and utility of legislation,” and be-

cause “the question clearly is at least debatable, the Minnesota Su-

preme Court erred in substituting its judgment for that of the leg-

islature.” Id. at 469 (citation omitted) (internal quotation marks

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

substitute their evaluation of legislative facts for that of the legisla-

ture.” Id. at 470.

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21-12729 Opinion of the Court 37

Both Kassel v. Consolidated Freightways Corp. and Clover

Leaf Creamery make clear that we owe strong deference to the

Florida Legislature when it exercises its traditional police powers

to promote traditional local interests based on justifications that are

not illusory. And the State’s justifications are not illusory if apply-

ing section 381.00316(1) “as written” would “rationally contribute

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

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

Our dissenting colleague argues that Clover Leaf does not

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

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

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

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

Dissenting Op. at 57. But the problem with our dissenting col-

league’s argument is that the Court did engage in that analysis. Clo-

ver Leaf Creamery Co., 449 U.S. at 470. In doing so, the Court of-

fered a deferential approach toward state legislation that cannot be

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

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

“minor” burden on commerce. Indeed, Kassel addressed regula-

tions that “impair[ed] significantly the federal interest.” 450 U.S. at

671. And this Court has already read Kassel to command substan-

tial deference to states without any caveat for a “minor” burden on

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

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

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38 Opinion of the Court 21-12729

Applying section 381.00316(1) as written would rationally

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

include protecting its unvaccinated and privacy-minded residents

from discrimination and required disclosures of private medical in-

formation—benefits that implicate traditional and substantial state

interests. The statute rationally contributes to those interests by

outlawing conduct by businesses that would directly discriminate

against the unvaccinated, indirectly discriminate against minority

communities that are disproportionately vaccine-hesitant, and re-

quire all residents—vaccinated or not—to disclose to businesses

their private medical records.

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

proponents in the legislature,” evidencing that they were among

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

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

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

largest segment of our community that is vaccination-hesitant is

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

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

disparately discriminate against our minority populations.” House

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

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

Co., 449 U.S. at 469–70, after he reported that “we have people dis-

criminating against you if you’re not vaccinated.” House Session,

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

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21-12729 Opinion of the Court 39

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

6:30:30–6:31:03.

The dissent dismisses this evidence of the Legislature’s con-

cerns, but its reasoning is unavailing. We, of course, share the dis-

sent’s concerns about the difficulties of discerning collective legis-

lative intent—at least when trying to interpret a statute. Dissenting

Op. at 39–40. But as the dissent concedes, we must look to legisla-

tive history because the Supreme Court has done so in this context.

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

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

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

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

(1993); Wallace v. Jaffree, 472 U.S. 38, 58 (1985); Village of Arling-

ton Heights v. Metropolitan Housing Development Corp., 429

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

avoids the pitfalls that Justice Scalia identified. The decision cited

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

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

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

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

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

New England Power did not involve the deferential task of as-

sessing whether a state law served a constitutional purpose. Id. So

it is inapposite.

The dissent complains that we rely “exclusively” on Repre-

sentative Leek’s concern about Florida’s vaccine-hesitant minority

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40 Opinion of the Court 21-12729

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

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

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

of the Pandemics Committee. Instead of crediting his statements,

the dissent uncharitably contorts another of Representative Leek’s

statements to imagine contradiction where none exists. When

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

has not been addressed through constitutional law,” Representa-

tive Leek responded that state law has indeed created protected

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

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

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

the bill has nothing whatever to do with protecting minority pop-

ulations. Id. at 38. We decline the dissent’s invitation to assume

legislative mendacity with no evidence of it.

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

justifications were “rational” and erroneously argues that we have

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

Both Kassel and Clover Leaf Creamery make clear that we must

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

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

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

review, by contrast, we do not assess whether the state’s justifica-

tions are illusory. Instead, we defer to any “reasonably conceiva-

ble” facts or purposes that could support a classification, even if

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

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21-12729 Opinion of the Court 41

Beach Comm., Inc., 508 U.S. 307, 313 (1993). These are two differ-

ent standards, and we have correctly applied the former by deter-

mining that the state’s justifications are not illusory.

The district court also second-guessed Florida’s legitimate

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

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

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

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

to prohibit businesses from imposing a vaccination requirement”

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

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

requiring oral verification of vaccination status). It also reasoned

that “Florida’s failure to regulate employers, COVID-19 test re-

sults, and other medical documentation—including documentary

proof-of-vaccination requirements for schoolchildren—conflicts

with its purported desire to protect medical privacy.” And it con-

cluded that “[t]he statute also does not actually protect against” dis-

crimination against unvaccinated persons because businesses may

still differentiate between the vaccinated and unvaccinated in im-

plementing other practices.

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

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

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

449 U.S. at 466 (internal quotation marks omitted). Indeed, “a leg-

islature may implement its program step by step, adopting regula-

tions that only partially ameliorate a perceived evil and deferring

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42 Opinion of the Court 21-12729

complete elimination of the evil to future regulations.” Id. (altera-

tions adopted) (internal quotation marks omitted). The district

court erred by subjecting the statute to a kind of means-end scru-

tiny that would require that it eliminate all conceivable discrimina-

tion and burdens of medical privacy if it wishes to eliminate any.

Second, the district court failed to give the Legislature the

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

quotation marks omitted), whether the direct regulation of one

kind of discrimination would indirectly discourage the other kinds

that the district court identified. For example, Norwegian itself

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

proof when it comes to confirming vaccination status” and that

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

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

to show documentation certifying that they are fully vaccinated.”

If so, it is rational to suppose that section 381.00316(1) would dis-

courage businesses from engaging in what Norwegian concedes

are exercises in futility. The Legislature “could rationally have de-

cided,” id. at 466, to prohibit what in its view is the worst species

of the kinds of evils it targeted and that its prohibition would dis-

courage or eliminate other species in addition. And as for the con-

duct the statute directly prohibits, it is incontrovertible that it will

succeed at reducing or eliminating that conduct. Without section

381.00316(1), some businesses would indeed discriminate as Nor-

wegian itself did.

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21-12729 Opinion of the Court 43

Florida is on firmer ground than Minnesota was in Clover

Leaf Creamery Co. Although Minnesota’s putative benefits de-

pended on the truth of empirical claims, such as whether a partic-

ular ban would conserve energy, id. at 459–60, Norwegian con-

cedes that section 381.00316(1) would stop businesses like Norwe-

gian from requiring vaccine documentation as a condition of ser-

vice. And no amount of empirical evidence is needed to understand

that preventing compelled disclosures of medical documentation

held by only one class of persons prevents instances of both dis-

crimination and required disclosures of private medical documen-

tation that would otherwise occur. Contra Dissenting Op. at 17 (re-

lying on a decision in which the State’s asserted physical-safety in-

terests were subject to empirical disconfirmation).

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

antidiscrimination statute because discrimination based on vac-

cination status “contrasts sharply” with the “‘invidious discrimina-

tion’ that ‘frequently occurs along ethnic lines.’” Id. at 48; see also

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

comparison because it concludes that Norwegian does not “seek to

invidiously discriminate against unvaccinated people; it seeks to

distinguish between vaccinated and unvaccinated people to ensure

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

We disagree. Florida clearly sought to prevent discrimina-

tion against unvaccinated people by prohibiting businesses from

distinguishing between vaccinated and unvaccinated people. The

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

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44 Opinion of the Court 21-12729

statute protects only unvaccinated people against discrimination.”

Id. at 40. But the state need not protect vaccinated and unvac-

cinated people from discrimination equally. After all, Section

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

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

City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (“[T]he ju-

diciary may not sit as a superlegislature to judge the wisdom or

desirability of legislative policy determinations made in areas that

neither affect fundamental rights nor proceed along suspect

lines.”). More analogous examples abound. Consider a statute that

prohibits employers from relying on the wage history of prospec-

tive employees to set wages. See Greater Phila. Chamber of Com.,

949 F.3d at 134–36. Or consider another statute that prohibits em-

ployers from requiring prospective employees to provide wage-re-

lated information. Those statutes target wage discrimination even

if they leave untouched other forms of discrimination against the

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

“protect[] only [poor] people against discrimination” who have suf-

fered from wage discrimination. See Dissenting Op. at 47.

The Supreme Court has rejected the dissent’s view that stat-

utes must strike at all forms of discrimination if they strike at any

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

at 656–57 (rejecting an argument that a statute “itself works an in-

vidious discrimination . . . by prohibiting the enforcement of [an]

English literacy requirement only for those educated in American-

flag schools . . . in which the language of instruction was other than

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21-12729 Opinion of the Court 45

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

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

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

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

more pressing than discrimination against another non-suspect

class. And the Florida Legislature could have sensibly supposed

that discrimination against the unvaccinated was a serious problem

requiring legislative interposition but that discrimination against

the vaccinated was not. Cf. id. at 657 (explaining that anti-discrim-

ination “reform may take one step at a time, addressing itself to the

phase of the problem which seems most acute to the legislative

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

the dissent marshals suggests that the Legislature was unmoved by

arguments that discrimination against vaccinated people was a

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

(discussing floor statements citing an apparent example of discrim-

ination against vaccinated people). So Florida has the discretion to

determine that the differences between vaccinated and unvac-

cinated people do not reasonably justify the economic ostracism to

which the Legislature found the latter would otherwise be sub-

jected.

The dissent’s distinction between invidious and non-invidi-

ous discrimination is also mistaken. Dissenting Op. at 42–43. For

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

protecting minority populations, but the statute, as Representative

Leek stated, indirectly protects minority communities who are

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46 Opinion of the Court 21-12729

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

acknowledge that the State may recognize new protected classes

beyond federal law. As the “double security” of a “compound re-

public,” states can do more than federal law to ensure “security for

civil rights.” The Federalist No. 51 at 339 (James Madison). For ex-

ample, states may protect the indigent, the disabled, and the elderly

from discrimination even though these classes are not constitution-

ally protected. The dissent ignores this basic point. Instead, it sub-

stitutes its own intuitions to conclude that Florida’s interests are

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

“non-pejorative” or “neutral” discrimination (whatever those la-

bels mean). Dissenting Op. at 34, 45–46.

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

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

not a “reasonable distinction” between its citizens and what quali-

fies as discrimination worth remedying. Id. at 42. In doing so, the

State may find, as a matter of fact, that it needs to protect the un-

vaccinated from being excluded from the market. The dissent’s ap-

proach would flip the script and allow Article III judges to decide

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

would threaten the state’s authority to protect its citizens from var-

ious forms of discrimination. We decline the dissent’s invitation to

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

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

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

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21-12729 Opinion of the Court 47

reason, the Constitution affords state legislatures great deference

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

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

protecting privacy is similarly unpersuasive. The dissent concludes

that section 381.00316(1) “does not meaningfully promote pri-

vacy.” Id. at 53. The dissent reasons that “the state itself requires

Floridians to present proof of vaccination against diseases other

than COVID-19 to attend schools at the very same time that Sec-

tion 381.00316(1) prohibits cruise lines from requiring documenta-

tion of COVID-19 vaccination.” Id. at 56. But the dissent’s argu-

ment again rests on an unstated and false premise that legislatures

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

could have sensibly determined that the effects of polio on children

justify burdening privacy but that the effects of COVID-19 on chil-

dren do not. The Legislature expressly considered that other dis-

eases warrant vaccination requirements in schools despite burdens

to privacy. That kind of line-drawing is quintessentially one for leg-

islatures, not this Court. And that a legislature might weigh health

benefits against privacy interests differently for different diseases

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

prohibits compelled disclosures whenever it decides that the pri-

vacy side of the scale is weightier.

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

would “rationally contribute to [the State’s] purported local bene-

fits.” See Fla. Transp. Servs., 703 F.3d at 1260. And because “[w]e

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

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48 Opinion of the Court 21-12729

w[ere] merely illusory,” we also cannot “second guess the legisla-

ture’s judgment as to the relative importance of [those] justifica-

tions versus any burdens imposed on interstate commerce.” Locke,

634 F.3d at 1194–95. So, at the very least, Norwegian “must over-

come a strong presumption of validity” that favors section

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

omitted).

Despite the evidence that it will suffer economically if it

complies with section 381.00316(1), Norwegian cannot overcome

that strong presumption of validity. Norwegian can travel with un-

vaccinated passengers to ports. Although the Bahamas and the

United States Virgin Islands once required all passengers aged 12

and older to be vaccinated, the governments of those destinations

have since revised their protocols to allow unvaccinated persons to

enter with negative COVID-19 tests. Norwegian concedes that

other foreign ports similarly allow unvaccinated passengers to en-

ter with negative testing. And Norwegian’s Chief Executive Officer

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

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

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

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

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

expedite passengers’ entry into virtually every single country and

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

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

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

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21-12729 Opinion of the Court 49

these burdens to Norwegian are not “clearly excessive in relation

to” the benefits of furthering the State’s substantial anti-discrimina-

tion and privacy interests. See Pike, 397 U.S. at 142.

The Commerce Clause does not necessarily protect Norwe-

gian against prohibitive burdens imposed by local law. “[T]he

Commerce Clause protects the interstate market, not particular in-

terstate firms, from prohibitive or burdensome regulations.” Clo-

ver Leaf Creamery Co., 449 U.S. at 474 (internal quotation marks

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

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

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

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

burdensome regulations on individual firms ordinarily “relates to

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

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

sure, burdens to individual firms can sometimes be unduly burden-

some if, against the facts here, the putative local benefits are illu-

sory or insubstantial. In Pike, for example, “the State’s tenuous in-

terest in having the company’s [products] identified as originating

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

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

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

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

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

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

“requiring business operations to be performed in the home State

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50 Opinion of the Court 21-12729

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

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

se illegal,” id. at 145. Because the State’s interests here are substan-

tial and long recognized, the statute can subject some businesses to

prohibitive or burdensome regulations.

Section 381.00316(1) also does not unduly burden out-of-

state firms any more than domestic ones. The statute does not pro-

hibit foreign cruise lines from imposing their preferred vaccination

requirements when conducting business elsewhere, and those

cruise lines that do impose their preferences abroad “may continue

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

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

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

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

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

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

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

Indeed, Norwegian is headquartered in Florida. And the strong def-

erence ordinarily due to the Legislature remains if the statute is

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

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

due . . . where the local regulation bears disproportionately on out-

of-state residents and businesses.”). “[B]ecause this burden is one

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

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

Locke, 634 F.3d at 1195.

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21-12729 Opinion of the Court 51

Norwegian also may choose to “eschew[] operations in Flor-

ida” if it is forced to comply with section 381.00316(1), but that

choice would not establish a burden that is clearly excessive in re-

lation to the State’s substantial interests. Although “[s]ome [busi-

nesses] may choose to withdraw entirely from the [Florida] market,

. . . interstate commerce is not subjected to an impermissible bur-

den simply because an otherwise valid regulation causes some busi-

ness to shift from one interstate [business] to another.” Exxon, 437

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

do not impose the kind of requirement that Norwegian would like

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

Florida may, consistent with section 381.00316(1), continue to re-

quire compliance with other restrictions for the unvaccinated, such

as COVID-19 testing.

Finally, neither the district court nor Norwegian has identi-

fied a less burdensome regulation that would “promote[] as well”

the State’s substantial interests. See Pike, 397 U.S. at 142. Norwe-

gian argues that “Florida could have adopted a narrow carveout

that specifically exempts cruise line operators or interstate activities

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

marks omitted.) The district court used the same examples and rea-

soned that the State’s “failure to adopt a less restrictive alternative

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

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

less burdensome alternatives would have promoted the State’s in-

terest “as well” as section 381.00316(1). Id. For example, an

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52 Opinion of the Court 21-12729

exemption for specific industries would allow businesses within

them to discriminate against and require disclosures of private

medical documentation from customers and patrons. It is hard to

see how that state of affairs promotes anti-discrimination and pri-

vacy interests as well as an outright ban. Indeed, the district court

faulted the State for not enacting a statute that more effectively

promotes those interests by extending the ban to employer-em-

ployee relationships.

Norwegian and the district court “have suggested several al-

ternative statutory schemes, but these alternatives are either more

burdensome on commerce than [section 381.00316(1)] (as, for ex-

ample, banning all [vaccination requirements]) or less likely to be

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

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

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

nondiscriminatory state laws, the test would require invalidating

all such laws. Every statute that incidentally burdens interstate

commerce can have gerrymandered exemptions to prevent bur-

densome effects in particular industries or to particular firms, but

Pike tells us that those effects are ordinarily permissible.

One final argument merits attention. “Because foreign com-

merce is at stake,” Norwegian argues that “weightier justification

is required from the State.” “In the unique context of foreign com-

merce, a State’s power is further constrained because of the special

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

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

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21-12729 Opinion of the Court 53

This consideration is typically implicated in the context of “state

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

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

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

it is also implicated in the context of foreign trade and discrimina-

tory “export restrictions,” S.-Cent. Timber Dev., Inc. v. Wunnicke,

467 U.S. 82, 99–101 (1984) (invalidating a “protectionist” and “na-

ked restraint on export of unprocessed [timber]” to a foreign coun-

try in part because “foreign commerce [was] burdened by the re-

striction”). Those contexts concern “international relations” and

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

the United States act through a single government with unified and

adequate national power.” Japan Line, Ltd., 441 U.S. at 448 (inter-

nal quotation marks omitted).

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

result incidentally from matters traditionally of local concern. As

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

and safety,” “matters [that are] primarily, and historically, . . . mat-

ter[s] of local concern,” Hillsborough, 471 U.S. at 719, not a tax or

restraint on imports and exports. And it is not the case that Con-

gress has given “substantial attention” to the kind of regulation at

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

governments.” See Wunnicke, 467 U.S. at 99–100 (internal quota-

tion marks omitted). So the incidental burdens imposed on foreign

commerce are not “clearly excessive in relation to the putative lo-

cal benefits,” Pike, 397 U.S. at 142, that result from Florida’s

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54 Opinion of the Court 21-12729

traditional power to pass local well-being regulations to further

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

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

safety of the[] use [of highways] . . . affect[s] alike shippers in inter-

state and intrastate commerce” and are “akin to quarantine

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

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

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

not acting, have been sustained even though they materially inter-

fere with interstate commerce”).

We conclude that Norwegian is unlikely to succeed on the

merits of its Commerce Clause claim. Florida has a substantial in-

terest in protecting its “residents from the harmful effects of dis-

crimination,” see Barez, 458 U.S. at 609, and in protecting the med-

ical privacy of its residents, Wollschlaeger, 848 F.3d at 1314. And

Florida has sought to further those interests by enacting a statute

that proscribes businesses from subjecting an entire class of resi-

dents—including a substantial minority population—to economic

ostracism by requiring that they produce medical documentation

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

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

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

importance of [those] justifications versus any burdens imposed on

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

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

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

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 55 of 123

21-12729 Opinion of the Court 55

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

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

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

Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concur-

ring in the judgment). Florida may, consistent with the Commerce

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

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

IV. CONCLUSION

We VACATE the preliminary injunction against the Sur-

geon General.

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 56 of 123

21-12729 ROSENBAUM, J., Dissenting 1

ROSENBAUM, Circuit Judge, Dissenting:

Today the Majority Opinion validates an unconstitutional

Florida law—Florida Statutes Section 381.00316(1), which prohib-

its businesses from requiring patrons to show proof of vaccination

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

does so by effectively applying only half of the dormant Commerce

Clause analysis that Supreme Court precedent requires—and not

even applying that half correctly. For dormant Commerce Clause

challenges to state laws, Supreme Court precedent requires us to

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

that law imposes on interstate and foreign commerce. When the

burdens clearly exceed the benefits, the law violates the dormant

Commerce Clause. Four major mistakes plague the Majority

Opinion’s application of the dormant Commerce Clause test.

First, the Majority Opinion shortcuts the balancing process

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

1 Plaintiffs-Appellants Norwegian Entities “br[ought] this [case as an] as-ap-

plied constitutional challenge,” and the district court enjoined Florida “from

enforcing Section 381.00316 against Plaintiffs [Norwegian entities]” only. Nor-

wegian Cruise Line Holdings, Ltd. v. Rivkees, 553 F. Supp. 3d 1143, 1148, 1180

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

raises only an as-applied challenge. See Maj. Op. at 31–32 (insisting on analyz-

ing the statute facially and discussing its application to “grocery stores, restau-

rants, fitness gyms, clothing stores, barber shops and hair salons, and even

pharmacies”). Perhaps that’s because it recognizes the weakness of its argu-

ments as they relate to this appeal as it was in fact brought. More on this later.

See infra at 49–50.

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2 ROSENBAUM, J., Dissenting 21-12729

It does so because state laws that meaningfully promote public

health and safety receive “strong deference” from federal courts

balancing a law’s local benefits against the burdens that law im-

poses on interstate and foreign commerce. But a regulation quali-

fies for that kind of deference under dormant Commerce Clause

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

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

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

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

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

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

meaningfully promotes health and safety: it will facilitate the

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

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

Norwegian’s2 Chief Executive Officer has described as the com-

pany’s most valuable tool for preventing the spread of COVID-19

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

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

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

deference.”

2I use “Norwegian” to refer collectively to the plaintiffs-appellants: Norwe-

gian Cruise Line Holdings Ltd.; NCL (Bahamas) Ltd., d/b/a Norwegian

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

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

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 58 of 123

21-12729 ROSENBAUM, J., Dissenting 3

Second, contrary to Supreme Court precedent, the Majority

Opinion does not assess whether (and, if so, to what extent) apply-

ing Section 381.00316(1) to the cruise industry actually furthers

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

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

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

opinion); see also id. at 691 (Rehnquist, J., dissenting). But the Ma-

jority Opinion never determines whether applying Section

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

claimed interests. Instead, the Majority Opinion just evaluates

Florida’s claimed interests in the abstract. And that allows it to im-

properly equate Florida’s interest in preventing cruise lines from

distinguishing between vaccinated and unvaccinated customers for

health reasons with a state’s interest in remedying invidious dis-

crimination along racial, ethnic, religious, or gender lines. By en-

gaging in this false equivalency, the Majority Opinion artificially

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

weak, particularly in the context of the cruise industry) to be as ro-

bust as a state’s truly strong interest in preventing invidious dis-

crimination.

Third, the Majority Opinion affords strong weight to Flor-

ida’s goal of protecting the privacy of those who wish not to dis-

close their COVID-19 vaccination status, even though Florida itself

requires proof of vaccination against many other infectious and po-

tentially deadly and debilitating diseases to attend school and par-

take in other public services. In so doing, the Majority Opinion

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4 ROSENBAUM, J., Dissenting 21-12729

ignores that such a “distinction is at variance with [Florida’s] as-

serted legislative purpose, and tends to undermine [Florida’s] justi-

fication for the burden the statute imposes on interstate com-

merce.” Edgar v. MITE Corp., 457 U.S. 624, 644 (1982).

Each of these three errors piles false weight upon false

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

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

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

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

substantial burdens Section 381.00316(1) imposes on interstate and

foreign commerce by facilitating the spread of COVID-19 aboard

cruise ships and worldwide—burdens that damage the supply

chain and significantly affect commerce otherwise.

The Majority Opinion’s insistence on effectively ending its

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

then declaring the law valid under the Commerce Clause—rather

than weighing the actual (minimal) benefits the law bestows

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

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

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

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

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

Instead of the Majority’s half-dressed analysis, we must cor-

rectly evaluate the local benefits—that is, we must discern the pre-

cise interests that Section 381.00316(1) furthers when applied to the

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

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 60 of 123

21-12729 ROSENBAUM, J., Dissenting 5

we must balance those local benefits against the burdens the law

inflicts on both interstate and foreign commerce. When we do

that, it’s clear that the heavy burdens the law imposes on com-

merce far outweigh any minimal benefits in the context of the

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

Clause as applied to Plaintiff-Appellant Norwegian. And the dis-

trict court did not abuse its discretion in preliminarily enjoining the

law.

I begin my analysis in Section I where the Majority Opinion

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

on interstate and foreign commerce because of its significant role

in the particular context of the cruise industry in facilitating and

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

examine the governing standards for reviewing a preliminary in-

junction and for reviewing a challenge under the dormant Com-

merce Clause in Sections II and III, respectively. In Section IV, I

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

weighs any local benefits of the law against the substantial burden

it inflicts on interstate and foreign commerce and shows that Nor-

wegian is likely to succeed on the merits.3 And Section VI shows

why Norwegian meets the remaining requirements for a prelimi-

nary injunction.

3Because Section 381.00316(1) is unconstitutional under the dormant Com-

merce Clause, I do not consider whether it is also unconstitutional under the

First Amendment.

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6 ROSENBAUM, J., Dissenting 21-12729

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

on commerce, which Section 381.00316(1) significantly ex-

acerbates by facilitating the spread of COVID-19 on cruise

ships and around the world.

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

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

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

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

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

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

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

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

According to the CDC, long COVID can cause “brain fog,” debili-

tating fatigue, heart palpitations, shortness of breath, sleep prob-

lems, diarrhea, depression, chest pain, and joint and muscle pain.6

4World Health Organization, WHO Coronavirus (COVID-19) Dashboard,

https://covid19.who.int/ (last visited Oct. 5, 2022).

5See Lara Bull-Otterson et al., Post–COVID Conditions Among Adult

COVID-19 Survivors Aged 18–64 and ≥65 Years — United States, March 2020–

November 2021, Centers for Disease Control and Prevention — Morbidity

and Mortality Weekly Report (May 27, 2022),

https://www.cdc.gov/mmwr/volumes/71/wr/mm7121e1.htm; see also

World Health Organization, WHO Coronavirus (COVID-19) Dashboard, su-

pra.

6 See Long COVID or Post-COVID Conditions, Centers for Disease Control

and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/long-term-

effects/index.html (last visited Oct. 5, 2022).

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 62 of 123

21-12729 ROSENBAUM, J., Dissenting 7

Worse still, these symptoms result from biological and chemical

changes in the body.7

Take “brain fog,” for instance. Stanford researchers study-

ing mouse brains found that, after a COVID-19 infection, an abnor-

mal increase in activity of certain brain cells had contributed to

higher inflammation in the brain.8 In fact, “[t]he genes expressed

. . . after COVID-19 overlapped closely with those expressed . . . in

neurological conditions such as Alzheimer’s disease.”9

That’s right—Alzheimer’s. And with long COVID, it’s not

just mouse brains that show signs of Alzheimer’s; it’s human

brains, too.10 Not only that, but “the acquired dementia that these

patients get tends to be lasting and very problematic.”11 And kids

who’ve suffered COVID-19 have been found twice as likely to

7 See id.

8See Erin Digitale, Brain Fog After COVID-19 has Similarities to ‘Chemo

Brain,’ Stanford-Led Study Finds, Stanford Medicine — News Center (June 13,

2022), https://med.stanford.edu/news/all-news/2022/06/brain-fog-covid-

chemo-brain.html.

9 Id.

10 Id.

11 Elizabeth Cooney, Risk of ‘brain fog’ and other conditions persists up to two

years after Covid infection, Stat https://www.stat-

news.com/2022/08/17/risk-of-brain-fog-and-other-conditions-persists-up-to-

two-years-after-covid-infection/ (quoting Dr. Wes Ely) (last visited Oct. 5,

2022).

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 63 of 123

8 ROSENBAUM, J., Dissenting 21-12729

experience seizures and three times as likely to have psychotic dis-

orders as kids who haven’t had COVID-19.12

Nor do long COVID’s profound effects stop there. Some

long-haulers have problems with multiple organ systems or even

experience autoimmune conditions that increase their risks of de-

veloping diabetes, heart conditions, or neurological conditions.13

But vaccines can prevent many of these problems. First off,

vaccinated people are “markedly” less likely to contract COVID-19

than unvaccinated people.14 And among those who get COVID-

19, vaccinated people are twelve times less likely to endure severe

disease and require hospitalization than those who are unvac-

cinated.15 Vaccinated people are also only half as likely to develop

long COVID if they do fall ill.16

12 Id.

13 See supra, note 5.

14See David N. Fisman et al., Impact of Population Mixing Between Vac-

cinated and Unvaccinated Subpopulations on Infectious Disease Dynamics:

Implications for SARS-CoV-2 Transmission, Canadian Medical Association

Journal (Apr. 25, 2022), https://www.cmaj.ca/content/194/16/E573.

See COVID-19 Vaccines Continue to Protect Against Hospitalization and

15

Death Among Adults, Centers for Disease Control and Prevention (Mar. 18,

2022), https://www.cdc.gov/media/releases/2022/s0318-COVID-19-

vaccines-protect.html.

16 SeeUKHSA Review Shows Vaccinated Less Likely to Have Long COVID

than Unvaccinated, GOV.UK (Feb. 15, 2022), https://www.gov.uk/govern-

ment/news/ukhsa-review-shows-vaccinated-less-likely-to-have-long-covid-

than-unvaccinated.

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 64 of 123

21-12729 ROSENBAUM, J., Dissenting 9

Plus, vaccines protect more than just those who receive

them. Studies show that unvaccinated people contribute dispro-

portionately to the spread of COVID-19 to others—including to

vaccinated individuals.17 In fact, the district court here found that

vaccines “reduce the risk of transmission from a fully vaccinated

person by 80 to 90 percent.” Norwegian Cruise Line Holdings,

Ltd., 553 F. Supp. 3d at 1150. So a vaccinated person is both less

likely to develop COVID-19 herself and also less likely to spread

COVID-19 to others than is an unvaccinated person.

This disparity is especially significant in the context of

cruises, where hundreds—if not thousands—of people congregate

in close quarters for several days or weeks at a time. As the CDC

has recognized, “COVID-19 spreads easily between people in close

quarters on board ships.”18 And when passengers disembark from

the cruise, they enter other countries and eventually return home

to different states and countries around the world, carrying with

them and further spreading any infections they contracted on the

ship.

Vaccines have been an important development in combat-

ting our ongoing COVID-19 problem. Still, some may have valid

17 See Fisman, supra.

18 SeeCruise Ship Travel During COVID-19, Centers for Disease Control and

Prevention (last updated July 18, 2022), https://www.cdc.gov/corona-

virus/2019-ncov/travelers/cruise-travel-during-covid19.html.

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 65 of 123

10 ROSENBAUM, J., Dissenting 21-12729

reasons for not getting vaccinated, and judging those reasons is not

what this case is about.

Instead, this case is about the destruction that COVID-19 has

exacted and continues to exact on national and foreign commerce:

the obvious and hefty costs to economic output. Just consider the

harm the pandemic has caused to the supply chain.19 When we

view COVID-19 through this lens, it is undeniable that more cases

of COVID-19 mean even more damage to commerce.

Yet Section 381.00316(1) prohibits almost all businesses, in-

cluding cruise lines like Norwegian, from, before serving patrons,

requiring them to show proof that they are vaccinated. In this way,

the statute compounds the burdens COVID-19 inflicts on interstate

and foreign commerce because unvaccinated people are signifi-

cantly more likely to develop (and therefore transmit) COVID-19

than vaccinated people, especially in a cruise setting. The district

court found that obtaining proof of vaccination from passengers is

the most important safeguard to prevent the spread of COVID-19

through cruises.

But because of Section 381.00316(1), cruise lines can’t do

that. So they have no way to mitigate the spread of COVID-19 on

19 See, e.g., Sean Harapko, How COVID-19 Impacted Supply Chains and What

Comes Next, EY (Feb. 18, 2021), https://www.ey.com/en_us/supply-

chain/how-covid-19-impacted-supply-chains-and-what-comes-next (“The

COVID-19 pandemic has posed significant challenges for supply chains glob-

ally.”).

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 66 of 123

21-12729 ROSENBAUM, J., Dissenting 11

that important basis. And because the extended time in close quar-

ters on cruises fuels the transmission of COVID-19 by unvaccinated

people, more passengers will develop COVID-19. That increased

transmission creates problems not only for Norwegian’s onboard

medical services—which can become overrun with COVID-19 pa-

tients, obstructing medical care for other illnesses and conditions—

but also for the passengers onboard, the inhabitants of the cities

and ports the ships visit, and those people whom passengers en-

counter on their journeys home and in their communities, all of

whom are now more likely to contract COVID-19 and possibly de-

velop long COVID. In turn, that imposes far-reaching costs on in-

terstate and foreign commerce for Norwegian, which suffers inju-

ries to its goodwill and its business. And it inflicts even greater bur-

dens on interstate and foreign commerce generally by removing

workers from the workforce, which decreases consumers’ spend-

ing power and causes interstate and foreign commerce to contract.

II. Standard of Review

With those burdens in mind, I turn to the standards that gov-

ern our review of the district court’s decision to impose a prelimi-

nary injunction. We review a district court’s order on a motion for

preliminary injunction for abuse of discretion. Alabama v. U.S.

Army Corps of Eng’rs, 424 F.3d 1117, 1129 (11th Cir. 2005). When

conducting our evaluation, we review a district court’s conclusions

of law de novo and “findings of fact underlying the grant of an

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 67 of 123

12 ROSENBAUM, J., Dissenting 21-12729

injunction for clear error,” Am.’s Health Ins. Plans v. Hudgens, 742

F.3d 1319, 1329 (11th Cir. 2014).

And when, as here, constitutional rights are at stake, our def-

erence to the district court is great: even if “the underlying consti-

tutional question is close,” “we should uphold the injunction and

remand for trial on the merits.” Ashcroft v. ACLU, 542 U.S. 656,

664–65 (2004). So “if the district court’s analysis of the preliminary

injunction factors reflects a reasonable conclusion about a close

question of constitutional law,” “novel and difficult constitutional

questions [should be] settled at a later stage, with the benefit of fur-

ther factual and legal development” Gordon v. Holder, 721 F.3d

638, 644–45 (D.C. Cir. 2013), overruled on other grounds by South

Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2099 (2018); see also Valle

Del Sol Inc. v. Whiting, 709 F.3d 808, 817 (9th Cir. 2013).

We consider four factors when determining the propriety of

preliminary injunction relief: (1) whether the party seeking the in-

junction has shown a substantial likelihood of success on the mer-

its, (2) whether the party seeking the injunction will suffer irrepa-

rable harm without the injunction, (3) whether the balance of the

equities favors an injunction, and (4) whether an injunction serves

the public interest. Gonzalez v. Governor of Ga., 978 F.3d 1266,

1270–71 (11th Cir. 2020). “The third and fourth factors ‘merge’

when, as here, the government is the opposing party.” Id. at 1271

(11th Cir. 2020) (cleaned up). Likelihood of success on the merits

“is ‘generally the most important’ of the four factors.” Id. at 1271

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 68 of 123

21-12729 ROSENBAUM, J., Dissenting 13

n.12 (quoting Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223,

1232 (11th Cir. 2005)).

III. The Dormant Commerce Clause

This deferential standard of review governs our considera-

tion of the district court’s conclusion that Section 381.00316(1), as

applied to the cruise industry, violates the Commerce Clause. The

Commerce Clause empowers Congress “to regulate commerce

with foreign nations, and among the several states, and with the

Indian tribes.” U.S. Const. art. I, § 8, cl. 3.

Besides conferring that power on Congress, the Clause also

invalidates state laws that “impos[e] substantial burdens” on inter-

state and foreign commerce. Dennis v. Higgins, 498 U.S. 439, 448

(1991) (citation and quotation marks omitted).20 We sometimes re-

fer to this “implicit restraint” of the Commerce Clause as the

“dormant” Commerce Clause. United Haulers Ass’n, Inc. v.

Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338, 343

20 This “dormant” aspect of the Commerce Clause also prohibits state action

that discriminates against interstate commerce. See, e.g., Fla. Transp. Servs.,

Inc. v. Miami-Dade Cnty., 703 F.3d 1230, 1243 (11th Cir. 2012). So we gener-

ally use a “two-tiered analysis” to evaluate state action challenged under the

dormant Commerce Clause. Id. Here, though, I agree with the Majority that

Section 381.00316(1) survives scrutiny under the first tier of that analysis—the

statute does not discriminate against out-of-state commerce. See Maj. Op. at

29. For that reason, I limit my discussion to the second tier, which focuses on

whether Section 381.00316(1) unduly burdens interstate commerce. See Fla.

Transp. Servs., 703 F.3d at 1244.

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 69 of 123

14 ROSENBAUM, J., Dissenting 21-12729

(2007). The so-called dormant Commerce Clause invalidates state

legislation that “unduly burdens” interstate and foreign commerce.

Fla Transp. Servs., Inc., 703 F.3d at 1245.

Whether a law unduly burdens commerce turns on the bal-

ancing test that Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), sets

forth. Under that test, a state law violates the dormant Commerce

Clause when “the burden imposed on” foreign and interstate

“commerce is clearly excessive in relation to the putative local ben-

efits.” Id. at 142.

To state the obvious, the Pike balancing test is a balancing

test. So it’s worth emphasizing that, in evaluating whether Section

381.00316(1) survives that test, we must balance the burden that

the law imposes on interstate and foreign commerce against the

local benefits the law yields to further the State’s asserted interests.

Even if the state had a rational basis for believing its legislation

would accomplish a stated purpose, that is not enough, contrary to

the Majority Opinion’s suggestion, see Maj. Op. at 36, to uphold

the law under the Commerce Clause.21 Rather, even if the state

had a rational basis, we still must weigh the law’s local benefits

against the burden it imposes on commerce. Again, Pike imposes

a balancing test.

21 AsI explain later, see infra at 53–58, the Majority Opinion’s suggestion that

the second tier of the Pike test requires only rational-basis review on the local-

benefits side of the test is incorrect. See Maj. Op. at 37–38 (suggesting as

much).

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21-12729 ROSENBAUM, J., Dissenting 15

I begin with what we must balance on the state-interest side

(local benefits) of the scale. On this side of the balance, Pike and its

progeny require two inquiries. First, we must identify the true leg-

islative purpose of the law, and second, we must determine

whether and how much the law actually furthers the true purpose.

Starting with the first inquiry, we can often just accept a

state’s asserted purpose at face value. But we can’t do that when

the legislative scheme and history show that the state’s asserted

purpose “could not have been a goal of the legislation.” Clover

Leaf Creamery Co., 449 U.S. 456, 463 n.7 (1981) (quoting Wein-

berger v. Wiesenfeld, 420 U.S. 636, 648, n.16 (1975)); see also Locke

v. Shore, 634 F.3d 1185, 1194 (11th Cir. 2011) (accepting a state’s

asserted safety interest when “the legislative history confirm[ed]

that the legislature highlighted safety concerns”).

Pike shows how this inquiry works. There, Arizona en-

forced one of its laws in a way that prohibited a farming company

from transporting uncrated cantaloupes from its Arizona ranch to

its packing and processing facility in California. Pike, 397 U.S. at

138. That law’s “core” provision required that fruits shipped from

Arizona “be packed” so that the visible fruits did “not ‘materially

misrepresent’ the quality of the lot as a whole.” Id. at 142–43. The

“impetus” for that requirement was Arizona’s “fear that some

growers were shipping inferior or deceptively packaged produce,”

which caused “the reputation of Arizona growers” to suffer. Id. at

143. Arizona “stipulated that [the law’s] primary purpose [was] to

promote and preserve the reputation of Arizona growers”—which,

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16 ROSENBAUM, J., Dissenting 21-12729

in the abstract, the Supreme Court observed, were “surely legiti-

mate state interest[s].” Id.

But as instructive here, the Court did not just accept Ari-

zona’s asserted interest and balance it against the burdens the law

imposed on commerce. Rather, the Court observed that “applica-

tion of the Act” to the farming-company plaintiff had “a far differ-

ent impact, and quite a different purpose.” Id. at 144. That farm-

ing company grew cantaloupes “of exceptionally high quality.” Id.

So applying the law to this company—and thus preventing the

company from packing its fruit outside Arizona—did not serve “the

purpose of keeping the reputation of [Arizona] growers unsullied,”

id. Instead, this application “served to enhance” the “reputation”

of Arizona growers by informing consumers that the company’s

“high quality” cantaloupes were “grown in Arizona.” Id. And the

Court held that, though the law’s claimed purpose encompassed

“legitimate state interests[,]” id. at 143, “the State’s interest [as ap-

plied in that particular case was] minimal at best,” id. at 145–46. In

fact, that “tenuous interest” failed to justify even the “incidental

consequence” the law imposed on the farming-company plaintiff.

Id.

Among other things, Pike teaches us we don’t just blindly

accept the state’s asserted interest. Rather, we must discern the

state’s interest by actually looking at the law as applied to the liti-

gant challenging the state’s law. Only then can we see what inter-

ests the state’s law serves in the particular context where it is being

challenged.

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21-12729 ROSENBAUM, J., Dissenting 17

Once we discern the state’s interest as applied to the litigant

challenging the state’s law, we move to the second step of the “lo-

cal benefits” analysis. At this point, “the question becomes one of

degree.” Id. at 142. So we focus on how well the state’s law fur-

thers its purpose. In many cases, state laws “designed for” a “salu-

tary purpose” still fail under the Pike test because those laws “fur-

ther the purpose so marginally.” Kassel, 450 U.S. at 670 (plurality

opinion); see also id. at 691 (Rehnquist, J., dissenting) (explaining

that a State’s “asserted safety justification, although rational,” will

often fail under Pike when the law yields “safety benefits” that “are

demonstrably trivial”).

And the Supreme Court has repeatedly invalidated state

laws under the dormant Commerce Clause when those laws fur-

ther their purpose only marginally. In Raymond Motor Transpor-

tation, Inc. v. Rice, 434 U.S. 429 (1978), for example, the Court in-

validated a Minnesota highway safety law because the challengers

“produced a massive array of evidence to disprove the state’s asser-

tion that the regulations ma[de] some contribution to highway

safety.” Id. at 445.

The Court again invalidated a law that furthered its purpose

only marginally in Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520

(1959). There, the Court invalidated an Illinois highway safety law

because the plaintiffs “conclusively show[ed]” that the law had no

safety “advantages,” and “testimony” revealed that the measure

“create[d] hazards previously unknown to those using the high-

ways.” Id. at 525. See also S. Pac. Co. v. Ariz. ex rel. Sullivan, 325

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18 ROSENBAUM, J., Dissenting 21-12729

U.S. 761, 779 (1945) (invalidating Arizona safety measure that in-

creased hazards and afforded “at most slight and dubious” safety

benefits); Fla. Transp. Servs., Inc., 703 F.3d at 1261 (invalidating

County permitting practices that “did not further, but if anything

disserved, the County’s purported purposes and benefits”). As

these cases illustrate, a state’s interest is “illusory”—and accorded

only slight weight—when the record shows that the law furthers

its purpose only marginally. See Kassel, 450 U.S. at 671 (plurality

opinion); id. at 692 (Rehnquist, J., dissenting).

In sum, the state-interest side of the scale demands two in-

quiries. First, we discern the state’s true interest or purpose as the

law is applied. And second, we analyze how well the law furthers

those interests. We describe the product of these inquiries, taken

together, as the “local benefits” that flow from the state’s law.

Next, we balance those local benefits against the burdens the

law imposes on interstate and foreign commerce. In so doing, we

must remember that “the critical consideration is the overall effect

of the statute on both local and interstate activity.” Brown-Forman

Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986).

In this sense, striking a balance under Pike requires “a sensitive,

case-by-case analysis of purposes and effects,” South Dakota v.

Wayfair, Inc., 139 S. Ct. 2080, 2094 (2018) (quoting W. Lynn

Creamery, Inc. v. Healy, 512 U.S. 186, 201 (1994)).

Take Clover Leaf Creamery, for example—the case on

which the Majority Opinion effectively rests its analysis. In that

case, the Court reviewed a Minnesota law, which prohibited

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21-12729 ROSENBAUM, J., Dissenting 19

retailers from selling milk bottled in single-use plastic bottles, un-

der both the Equal Protection and Commerce Clauses. 449 U.S. at

458. The parties agreed that the State’s asserted interests of con-

serving resources and easing waste-disposal problems “[we]re legit-

imate state purposes.” Id. at 462. In its equal-protection analysis,

the Court applied rational-basis review and sustained the law be-

cause the State’s ban on single-use plastic milk containers bore “a

rational relation to the State’s objectives.” Id. at 470.

Then the Court turned to the dormant Commerce Clause

analysis. That analysis, unlike the Equal Protection Clause analy-

sis, required a balancing of the local benefits against the burdens

the law imposed on interstate commerce. The Court determined

that the “burden imposed on interstate commerce by the statute

[was] relatively minor.” Id. at 472. Emphasizing just how minimal

that burden was, the Court noted that the law required only that

milk producers package their products in something other than sin-

gle-use plastics—say, cardboard, or glass, or recyclables. And

“most dairies package[d] their products in more than one type of

container,” anyway. Id. So that burden, the Court explained, was

“not ‘clearly excessive’ in light of the substantial state interest in

promoting conservation of energy and other natural resources and

easing solid waste disposal problems.” Id. at 473.

Under those circumstances, it made no difference that the

law bore only a rational relation to the state’s legitimate interest.

And that, of course, makes sense: when a law imposes only a mi-

nor burden on commerce, that law “cannot” inflict “a burden on

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20 ROSENBAUM, J., Dissenting 21-12729

interstate commerce that is ‘clearly excessive in relation to the pu-

tative local benefits’ under Pike.” Nat’l Ass’n of Optometrists &

Opticians v. Harris, 682 F.3d 1144, 1155 (9th Cir. 2012). And “we

need not examine the actual putative benefits of the challenged

statute[].” Id. By logical extension, then, a law that imposes only

a minor burden on commerce will necessarily survive review un-

der the Commerce Clause if it also survives rational-basis review

under the Equal Protection Clause (as was the case in Clover Leaf

Creamery).

But that calculus changes when the law inflicts real burdens

on commerce. See Pike, 397 U.S. at 140 (invalidating Arizona’s law

because it imposed an excessive burden on interstate commerce by

requiring a farmer to “build packing facilities” at a “cost” of “ap-

proximately $200,000”). In that case, we must carefully consider

the local benefits that the state law returns and weigh them against

its burdens. See Town of Southold v. Town of E. Hampton, 477

F.3d 38, 52 (2d Cir. 2007) (explaining the need to “remand[] for fur-

ther discovery or trial where a party has offered a credible expert

affidavit alleging a burden on interstate commerce and challenging

the proposed benefits of the law.”). Greater burdens on commerce

require greater local benefits. Pike, 397 U.S. at 142.

And when the state’s law also burdens foreign commerce,

even a relatively minor burden can invalidate the law. Under those

circumstances, we must apply the “well-accepted rule that state re-

strictions burdening foreign commerce are subjected to a more rig-

orous and searching scrutiny.” S.-Cent. Timber Dev., Inc. v.

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21-12729 ROSENBAUM, J., Dissenting 21

Wunnicke, 467 U.S. 82, 101 (1984). Here, as I’ve explained, see su-

pra Section I, there’s no question that Section 381.00316(1) burdens

foreign commerce and relations.

Even the Majority Opinion concedes that this rule of scru-

tiny applies to “restraint[s] on imports and exports.” Maj. Op. at

53. And of course, the cruise industry exports tourism when it an-

nually takes millions of passengers from the United States to ports

and cities around the world.22 Section 381.00316(1) restrains that

export by requiring cruise ships to carry unvaccinated passengers.

As I’ve mentioned, that restraint is incredibly burdensome: cruises

must, for example, allocate additional resources to their onboard

medical facilities because those facilities are more likely to become

inundated with COVID-19 outbreaks.

Plus, local populations in foreign countries—many of whom

“lack access to healthcare and other resources” needed to combat

COVID-19, Del Rio Aff. ¶ 19—must endure heightened COVID-19

transmission rates because cruise ship from Florida must carry

22 SeeStatista, Cruise industry in the United States—statistics & facts (July 18,

2022), https://www.statista.com/statistics/1251080/number-of-cruise-pas-

sengers-from-north-america/ (noting that more than 15 million cruise passen-

gers left from ports in North America in 2019). Indeed, PortMiami is the

Cruise Capital of the world. See PortMiami, Florida Ports Council,

https://flaports.org/ports/portmiami/. “Port Canaveral is perhaps best

known as the second busiest cruise port in the world,” see Port Canaveral,

Florida Ports Council, https://flaports.org/ports/port-canaveral/. And Port

Everglades is the third busiest cruise port in the world. Port Everglades, Flor-

ida Ports Council, https://flaports.org/ports/port-everglades/.

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22 ROSENBAUM, J., Dissenting 21-12729

unvaccinated passengers to those locations. Then, after their

cruises, when passengers from around the world return home,

those who’ve contracted COVID-19 spread it to others on their

journeys home and in their communities. And as I’ve explained,

COVID-19 and long COVID inflict a huge toll not just on the cruise

lines in these ways but also on commerce around the world—by

removing workers from the supply chain and consumers from the

market. For these reasons, we must subject Florida’s law “to a

more rigorous and searching scrutiny.” Wunnicke, 467 U.S. at 101.

When we do that, as I explain in Sections IV and V, we must

conclude that Section 381.00316(1) cannot survive dormant Com-

merce Clause scrutiny under the Pike balancing test.

IV. The local benefits Section 381.00316(1) delivers are minimal

at best in the context of the cruise industry.

In defense of its law, Florida asserts as the law’s purposes (1)

“preventing discrimination” against and (2) “promoting privacy”

for those who wish not to disclose their COVID-19 vaccine docu-

ments. Fla.’s Initial Br. at 29. On that basis, both Florida and the

Majority Opinion describe Section 381.00316(1) as a regulation of

“health and safety.” Fla.’s Initial Br. at 40; Maj. Op. at 53. From

there, the Majority Opinion concludes that we owe “strong defer-

ence to the Florida Legislature” because Florida “could rationally

have decided” that its law yields the putative benefits that the state

proffers. See Maj. Op. at 36 (quoting Clover Leaf Creamery, 449

U.S. at 461–70); see also id. at 42.

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21-12729 ROSENBAUM, J., Dissenting 23

That approach is backwards. As I explain in Subsection A,

we grant state laws “strong deference” only when they actually

promote health and safety. Section 381.00316(1) does no such

thing. So the “strong deference” we reserve for health-and-safety

regulations does not attach to Section 381.03316(1). And while

Florida’s asserted interests in preventing discrimination and pro-

tecting privacy are legitimate state interests in theory, they are both

illusory on this record as applied to the cruise industry, which I ex-

plain in Subsections B and C, respectively.

A. Although Florida describes Section 381.00316(1) as an exercise

of police power to safeguard the public health and safety, it is

not a law that furthers genuine health and safety interests, as

the law yields no safety benefits, but meaningfully increases

hazards as it applies to the cruise industry.

The Majority Opinion first goes awry by extolling Florida’s

law as a regulation of health and safety, a status it then uses to cloak

the law with the “strong deference” that we ordinarily reserve for

laws that actually promote public health and safety. Yet even the

Majority Opinion knows it can’t reasonably characterize Section

381.00316(1)—which facilitates the spread of COVID-19—as a reg-

ulation that furthers health and safety. See Maj. Op. at 34–35 (im-

plicitly conceding that Section 381.00316(1) does not further “phys-

ical health and safety”). So after granting Section 381.00316(1)

“strong deference” as if that law furthers a genuine interest in pro-

moting health and safety, the Majority Opinion then promptly dis-

owns any safety-and-health purpose attributable to Florida’s law.

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24 ROSENBAUM, J., Dissenting 21-12729

Instead, it explains, Florida’s law need not actually “promote resi-

dents’ physical health and safety” to be an exercise of the police

power to safeguard public health and safety. Id. at 34. The illogic

of this “logic” speaks for itself.

Apparently sensing this, the Majority Opinion makes an-

other move: it argues that Florida’s law promotes “residents’ eco-

nomic health and safety,” so it is entitled to the “strong deference”

generally reserved for regulations that genuinely protect health

and safety. Id. at 35. But that’s just wrong. And it enables the

Majority Opinion to impermissibly hide the ball.

Florida certainly has a legitimate interest in promoting its

residents’ economic well-being. But that interest, by itself, does

not necessarily warrant “strong deference” for the purpose of the

dormant Commerce Clause analysis like a state’s interest in pro-

moting its residents’ health and safety does. Rather, the Majority

Opinion’s sleight-of-hand improperly cloaks Florida’s interest in

furthering Floridians’ economic well-being with the deference

meant for a state’s interest in promoting its residents’ physical

health and safety. And that illegitimate move proves outcome-de-

terminative for the Majority Opinion’s analysis.

To be sure, the Majority Opinion later acknowledges “the

evidence” that Norwegian “will suffer economically if it complies

with section 381.00316(1).” Maj. Op. at 48. But it upholds Florida’s

law by relying on the “strong presumption of validity” that the

dormant Commerce Clause reserves for laws that actually pro-

mote public health and safety. Id. Yet that “strong presumption of

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21-12729 ROSENBAUM, J., Dissenting 25

validity” disappears once we establish that Florida’s law does not

further health and safety.

i. Although regulations that meaningfully further health and

safety warrant strong deference for the purpose of the

dormant Commerce Clause analysis, economic-well-being

regulations do not necessarily justify that same strong defer-

ence.

A law that promotes Floridians’ economic well-being does

not necessarily warrant the same deference that a law that mean-

ingfully promotes Floridians’ health and safety does. As the Su-

preme Court has explained, a statute “directly addressed to the pro-

tection of public health,” which “falls within the most traditional

concept” of a state’s police power, differs from a statute that a state

labels “a health measure on the attenuated theory that” it promotes

the “economic well-being” of its residents. Head v. New Mexico

Bd. of Exam’rs in Optometry, 374 U.S. 424, 428 & n.4 (1963); see

also Raymond Motor Transp., 434 U.S. at 448–449 (Blackman, J.,

concurring) (explaining that a state’s economic interests receive

less deference than a state’s safety interest under Pike).23

In fact, this basic distinction explains the outcome in Pike—

the fruit-shipping case. Arizona’s asserted interest in Pike did “not”

implicate “state legislation in the field of safety where the propriety

of local regulation has long been recognized.” 397 U.S. at 143.

23Chief Justice Burger and Justices Brennan and Rehnquist joined Justice

Blackman’s concurrence. Justice Stevens did not participate in the case.

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26 ROSENBAUM, J., Dissenting 21-12729

Rather, Arizona asserted an economic well-being justification to

“preserve the reputation of Arizona growers by prohibiting decep-

tive packaging” because some growers were hiding rotten fruit in

packaging where it was not visible. Id. at 142–43. But the farming-

company plaintiff packed high-quality produce. Id. So applying

the law’s requirement that the fruit be packaged in Arizona to that

company enhanced (rather than preserved) Arizona’s reputation

for produce. And the Court held that this particular “interest [was]

minimal at best—certainly less substantial than a State’s interest in

securing employment for its people.” Id. at 146.

To summarize, then, the Pike Court distinguished not only

between laws promoting safety and those promoting economic

well-being, but also between different laws promoting economic

well-being and even between the different economic well-being in-

terests that a single law protected. In this respect, the Pike Court

found some economic interests are more important—and there-

fore more worthy of deference—than others. The upshot of this is

that, contrary to the Majority Opinion’s suggestion, no one-size-

fits-all approach exists for affording weight to a state’s economic-

well-being justifications.

Nor can the Majority Opinion’s misleading citation clauses

alter this principle. The Majority Opinion Frankensteins citations

together to justify its conclusion that “strong deference” applies

with equal force to laws that meaningfully further health and safety

and those that further economic well-being—meaningfully or not.

See Maj. Op. at 34. In so doing, the Majority Opinion creates its

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21-12729 ROSENBAUM, J., Dissenting 27

own monster of a rule that robotically accords “strong deference”

to any state interest that is conceivably related to the state’s resi-

dents’ well-being in any way. But that bloated view of a state’s po-

lice powers is wrong.

We agree, the Majority and I, that a state has a quasi-sover-

eign interest—rather than a proprietary or sovereign interest—in

the “well-being” of its citizens. Id. at 31 (citing Alfred L. Snapp &

Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 609 (1982)). And

a state’s “quasi-sovereign” interest encompasses its citizens’ eco-

nomic and physical well-being. Barez, 458 U.S. at 609. But a state’s

“quasi-sovereign” interest merely invests it with “standing under

the parens patriae doctrine.” Id. That fact is totally separate from

and unrelated to the deference we afford to different interests in a

dormant Commerce Clause analysis.

In the dormant Commerce Clause context, the Supreme

Court has told us to give greater deference to regulations that

meaningfully further health and safety than to economic-well-be-

ing regulations—to treat, in other words, these two interests differ-

ently. As the Court has noted, there is “no field” where “deference

to state regulation has been greater than that of highway safety reg-

ulation.” Raymond Motor Transp., 434 U.S. at 443. And in Pike,

as I just discussed, the Court distinguished “state legislation in the

field of safety” from state legislation designed to enhance the eco-

nomic well-being of its residents. 397 U.S. at 143. It further distin-

guished among the strengths of different economic-well-being in-

terests.

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28 ROSENBAUM, J., Dissenting 21-12729

In sum, Pike requires “a sensitive, case-by-case analysis of

purposes and effects,” Wayfair, 139 S. Ct. at 2094 (quoting Healy,

512 U.S. at 201). And the Majority Opinion’s one-size-fits-all ap-

proach, which accords strong deference upon a state’s “incantation

of a purpose to promote” its residents’ well-being in any conceiva-

ble way, Kassel, 450 U.S. at 670, contradicts the Supreme Court’s

distinction between a state’s interests in meaningfully promoting

health and safety and in promoting different types of economic

well-being. So even assuming that Section 381.00316(1) furthers

Floridians’ economic well-being, it does not follow that “strong

deference” attaches to that law unless it meaningfully advances

health and safety.

And regardless of whether we view the distinction between

meaningful health-and-safety regulations, on the one hand, and

economic regulations, on the other, as a feature or flaw, it is an

essential element of our constitutional system. Of course, “[e]co-

nomic welfare is always related to health, for there can be no health

if men are starving.” Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511,

523 (1935) (Cardozo, J.). But even so, the “chief occasion” for the

Commerce Clause was to invest the federal government—not the

several states—with power to regulate the national economy. Id.

at 522. “This principle that our economic unit is the Nation, which

alone has the gamut of powers necessary to control the economy,”

has a corollary: “the states are not separable economic units.” H.P

Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537–38 (1949) (Jack-

son, J.). And if we recede from that principle and necessarily accord

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21-12729 ROSENBAUM, J., Dissenting 29

“strong deference” to states’ economic-welfare justifications, see

Maj. Op. at 34, we will “invite a speedy end of our national solidar-

ity.” Baldwin, 294 U.S. at 523.

To preserve that national solidarity, we must distinguish be-

tween regulations that meaningfully further health and safety,

which warrant “strong deference,” and economic well-being regu-

lations, which are more likely to unduly burden interstate and for-

eign commerce. Florida’s law is not one that meaningfully furthers

health and safety (just the opposite). So it does not necessarily de-

mand the “strong deference” that the Majority Opinion surrenders

to the state.

ii. Florida’s law does not warrant strong deference because it

does not meaningfully advance health or safety and in fact

harms them.

That said, both Florida and the Majority Opinion describe

Section 381.00316(1) as an exercise of the state’s “traditional police

power” to safeguard both the “public health and safety and the eco-

nomic well-being of its citizens,” meaning that we must analyze

both interests under Pike. Fla.’s Initial Br. at 1, 40; see also Maj.

Op. at 35. They make this move, it seems, because the Supreme

Court “has been most reluctant to invalidate” “regulations that

touch upon safety,” id. at 34 (quoting Kassel, 450 U.S. at 670); see

also Fla.’s Initial Br. at 40. But Section 381.00316(1) is no safety

regulation.

As I’ve noted, Pike requires that we scrutinize the legisla-

ture’s actual interest—not simply accept its stated interest at face

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30 ROSENBAUM, J., Dissenting 21-12729

value. Clover Leaf Creamery Co., 449 U.S. at 463 n.7. And no one

can seriously contend that Section 381.00316(1) furthers the pub-

lic’s health or safety. On the contrary, the law, which makes it im-

possible for cruise lines to ensure their passengers are vaccinated,

endangers the health and safety of Norwegian’s passengers and the

community at large. After all, the district court found that vaccines

“reduce the risk of transmission from a fully vaccinated person by

80 to 90 percent.” Norwegian, 553 F. Supp. 3d at 1150. As Del Rio

tells it, vaccination is the “most effective way to protect passengers,

crews, and locals from the spread of COVID-19.” Del Rio Aff. ¶ 27.

So, he said, “verifying the vaccination status of cruise passengers”

is the best safeguard against COVID-19 transmission aboard the

company’s cruises.24 Del Rio Aff. ¶ 26. By removing this tool from

the cruise industry, Section 381.00316(1) ensures more transmis-

sion of COVID-19 and decreases public safety.

We, of course, owe deference to the district court’s factual

findings. But it’s not just the district court and Del Rio who think

vaccination plays a critical role in stemming COVID-19 transmis-

sion. Scientific evidence verifies the important role that vaccina-

tion plays in stemming the transmission of COVID-19—especially

in close quarters like cruise ships. See supra at pp. 8–9.

24 To be sure, the district court found that “testing is an important adjunct

measure.” Norwegian, 553 F. Supp. 3d at 1174. But it concluded that testing

“cannot serve as a substitute for vaccination because tests are susceptible to

false positive and false negative results, even when repeated testing is done.”

Id.

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21-12729 ROSENBAUM, J., Dissenting 31

Plus, here, the legislative history confirms that Florida nei-

ther consulted with medical experts nor reviewed scientific evi-

dence when it enacted Section 381.00316(1). For example, during

floor debates, Florida Senator Danny Burgess, who introduced the

amendment that ultimately became Section 381.00316(1), see S.B.

2006, Amendment 330036, 2021 Leg. Sess. (Fla. 2021), resisted ref-

erence to any health- or safety-related evidence, reminding his col-

leagues at least twice that he had “no medical background.” See,

e.g., Senate Session, FLA. SENATE, at 6:20:51–6:20:56 (Apr. 29, 2021),

https://www.flsenate.gov/media/VideoPlayer?Even-

tID=1_q42x9ekw-202104291000&Redirect=true. When Senator

Doug Broxson asked,

“I think most of us feel fairly confident that the vac-

cine is working, so technically . . . if you go on a cruise

ship and 95% of the people have taken the vaccine,

the 5% that did not would be exposing the other 5%.

Is that a fair analogy, that what we’re doing is letting

people that choose not to have a vaccine to be ex-

posed by the other people who are choosing not to

have a vaccine?”

Id. at 6:34:30–6:35:03. Senator Burgess responded, “Again, not hav-

ing a medical background but understanding kind of the . . . maybe

unscientific approach, I would agree. I think that’s fair.” Id. at

6:35:09–6:35:19 (emphasis added).

But unfortunately, Senator Broxson got the science wrong:

unvaccinated people transmit COVID-19 to both unvaccinated and

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32 ROSENBAUM, J., Dissenting 21-12729

vaccinated people. See Fisman, supra. And unvaccinated people

infect more people, on a pro rata basis, than vaccinated people. See

id. So Senator Broxson was mistaken: the bill doesn’t just facilitate

transmission of COVID-19 from unvaccinated people to other un-

vaccinated people—it also facilitates transmission of COVID-19

from unvaccinated people to vaccinated people.

In this respect, this case is just like Raymond Motor Trans-

portation, where the Court invalidated Wisconsin’s so-called high-

way-safety regulation because “a massive array of evidence” dis-

proved “the State’s assertion that the regulations ma[d]e some con-

tribution to highway safety.” 434 U.S. at 444. In an even more

extreme way, the evidence here shows that Section 381.00316(1)

does not safeguard the public health and safety but rather jeopard-

izes it.

But Section 381.00316(1)’s violation of the dormant Com-

merce Clause is even more obvious than that of the law at issue in

Raymond Motor Transportation. There, Wisconsin’s asserted in-

terest was “promot[ing] highway safety.” Id. at 442. And as the

Supreme Court explained, there is “no field” where “deference to

state regulation has been greater than that of highway safety regu-

lation.” Id. at 443. Section 381.00316(1), though, is not a health-

and-safety regulation—let alone a highway-safety regulation. So it

is entitled to less deference than the “safety regulation” in Ray-

mond Motor Transportation.

Even if we assumed that same deference attached to Section

381.00316(1), though, a “massive array of evidence” still

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21-12729 ROSENBAUM, J., Dissenting 33

“disprove[s] the State’s assertion that the regulations make some

contribution” to health and safety. Instead, Section 381.00316(1)

undermines public health and safety. Id. at 444. So Section

381.00316(1) cannot seriously be described as a “bona fide safety

regulation[.]” Kassel, 450 U.S. at 670 (plurality opinion). And Flor-

ida’s asserted interest in “safeguarding public health and safety,”

Fla.’s Initial Br. at 1, is therefore “illusory,” Kassel, 450 U.S. at 671

(plurality opinion); see also id. at 691 (Rehnquist, J., dissenting).

B. Section 381.00316(1) does not prevent discrimination.

I next turn to Florida’s first of two asserted interests in pro-

moting the economic well-being of its citizens. Florida first asserts

an interest in “preventing discrimination for failure to provide doc-

umentation evidencing COVID-19 vaccination.” Fla.’s Initial Br. at

2–3. But as I’ve noted, the first task in evaluating a state’s interest

under Pike is to discern the state’s true interest. That is key here

because “discrimination” can connote several meanings. See, e.g.,

Discrimination, Black’s Law Dictionary (11th ed. 2019); Bryan A.

Garner, Garner’s Modern English Usage 287–88 (4th ed. 2016).

And identifying the accurate use of the term here transforms the

rest of the analysis.

Skipping that step, the Majority Opinion equates discrimina-

tion based on vaccination status with “invidious discrimination”

that “frequently occurs along ethnic lines.” See Maj. Op. at 30–31

(quoting Barez, 458 U.S. at 609); Barez, 458 U.S. at 609. From there,

the Majority Opinion assumes parity between Florida’s interest in

remedying noninvidious discrimination based on vaccination

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34 ROSENBAUM, J., Dissenting 21-12729

status and a state’s interest in remedying invidious discrimination

based on ethnicity. No matter the evil, the Majority announces, a

state’s interest in remedying “discrimination” is always “substan-

tial” and always “weightier” than a mere “legitimate” interest. Maj.

Op. at 31.

But the problem for the Majority Opinion is that, as Black’s

Law Dictionary unambiguously explains, invidious discrimination

and noninvidious discrimination are two entirely different things.

See Discrimination, Black’s Law Dictionary, supra; Garner, supra,

at 287–88. And the weight of a state’s interest in remedying dis-

crimination varies “depend[ing] on the nature” of the discrimina-

tion in need of remedying. Pike, 397 U.S. at 142. After all, the

“question” of how much weight to accord a state’s legitimate inter-

est is necessarily “one of degree.” Id. That makes it crucial to dis-

cern the type of discrimination that Florida’s law tries to remedy

before assigning weight to Florida’s interest in remedying discrim-

ination.

I start by defining “discrimination.” In the dictionary sense,

discrimination connotes the “intellectual faculty of noting differ-

ences and similarities.” Discrimination, Black’s Law Dictionary,

supra (definition 1). That use of “‘discrimination’ is neutral” and

not in any way considered pejorative. Id. But “the current political

use of the term is frequently non-neutral, pejorative.” Id.

On that score, Black’s Law Dictionary defines “discrimina-

tion” in the pejorative sense in two ways: (1) “The effect of a law

or establishe

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