# Norwegian Cruise Line Holdings Ltd v. State Surgeon General

> Court of Appeals for the Eleventh Circuit · October 6, 2022 · 50 F.4th 1126

URL: https://www.frixlaw.com/law-library/cases/8212405

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** October 6, 2022
- **Citations:** 50 F.4th 1126
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8212405

## Opinion text

USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 1 of 123

[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,
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 2 of 123

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].”
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 3 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 4 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 5 of 123

21-12729 Opinion of the Court 5

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 6 of 123

6 Opinion of the Court 21-12729

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.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 7 of 123

21-12729 Opinion of the Court 7

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 8 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 9 of 123

21-12729 Opinion of the Court 9

“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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 10 of 123

10 Opinion of the Court 21-12729

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 11 of 123

21-12729 Opinion of the Court 11

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 12 of 123

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-
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 13 of 123

21-12729 Opinion of the Court 13

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 14 of 123

14 Opinion of the Court 21-12729

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 15 of 123

21-12729 Opinion of the Court 15

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 16 of 123

16 Opinion of the Court 21-12729

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 17 of 123

21-12729 Opinion of the Court 17

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 18 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 19 of 123

21-12729 Opinion of the Court 19

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 20 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 21 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 22 of 123

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.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 23 of 123

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).
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 24 of 123

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.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 25 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 26 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 27 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 28 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 29 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 30 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 31 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 32 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 33 of 123

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,
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 34 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 35 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 36 of 123

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.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 37 of 123

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)).
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 38 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 39 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 40 of 123

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.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 41 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 42 of 123

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.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 43 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 44 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 45 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 46 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 47 of 123

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]
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 48 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 49 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 50 of 123

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.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 51 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 52 of 123

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).
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 53 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 54 of 123

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.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 57 of 123

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
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 59 of 123

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.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 61 of 123

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).
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 70 of 123

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,
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 71 of 123

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8212405. Public record. Not legal advice.