dissenting.
With respect, I disagree with the Court’s conclusion that Congress lacks power under the Commerce Clause to prohibit Missouri’s imposition of a $2.00 fee for disabled-parking placards. I also believe that the $2.00 fee imposed on disabled individuals seeking a disabled-parking placard is a surcharge that violates Title II and 28 C.F.R. § 35.130(f). Therefore, I would affirm the judgment of the District Court.
I believe the Court takes too narrow a view of what activity is being regulated by Title II. The Court states that “[t]he nominal placard fee ... is unlikely to deter any significant number of people, who would obtain placards if they were free, from purchasing them and thus acquiring the enhanced ability to engage in economic transactions that the placards might afford.” Ante, at 619. By taking this narrow view, the Court concludes that the fee has no substantial impact on interstate commerce because only some small, unknown number of disabled individuals who cannot pay the fee, or will not pay the fee, are denied the opportunity to participate in economic transactions. Although the Court concedes that certain disabled individuals would be denied the opportunity to participate in certain aspects of interstate commerce because they would not other*621wise have access to places where such activity occurs, the Court holds that the number of disabled individuals who would be denied access is so insignificant that it does not have the requisite “substantial impact” on interstate commerce.
Congress could not possibly make express findings about every situation to which the ADA might be extended, nor is it required to do so under the Commerce Clause. Congress did, however, express its intent that disabled individuals not be subjected to discriminatory treatment, and the Department of Justice, in exercising its delegated authority, promulgated § 35.130(f) to ensure that disabled individuals were not required to pay for their right to reasonably equivalent access. I believe that the Court overlooks the fact that those disabled individuals who pay the fee are being required to pay for their access to interstate commerce while non-disabled individuals are not.
It is an axiom cherished by many economists that, all other things being equal, an increase in the cost of a certain kind of activity will decrease the amount of that activity. As I read the Court’s opinion, it does not deny the validity of that axiom in general. Rather, it concludes that the decrease in shopping, say, by disabled individuals is simply not substantial enough to justify Congress’s exercise of power under the Commerce Clause. This approach seems to me wrong in two ways. First, the amount of the decrease in economic activity is treated as an ordinary fact to be proved by a preponderance of the evidence by the party bearing the burden of proof, here the plaintiffs. I agree that the record is devoid of evidence quantifying the amount of commercial activity — say, sales — that will be delayed or eliminated by placing a charge on the disabled-parking placards. This analysis, however, in my view, mischaracterizes the kind of “fact” we deal with here. What is at stake is a question of “legislative fact,” the kind of fact that is expressly or implicitly “found” by a legislative body when it enacts a law, rather than “judicial fact,” the kind of fact that has to do with who did what and the effect that activity had on the parties to the case.
When dealing with legislative facts, I think, even in the absence of express findings, we owe it to Congress to assume the existence of any state of facts reasonably conceivable by the legislature at the time the statute was enacted. The view that a substantial amount of commercial activity would be affected by this charge is certainly not arbitrary or unreasonable. We should give Congress the benefit of the doubt. When the constitutionality of a statute is challenged and “the legislative judgment is drawn in question,” judicial review “must be restricted to the issue whether any state of facts either known or which could reasonably be assumed” supports such statute. United States v. Carotene Prods. Co., 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Furthermore, although express findings may at times aid courts in reviewing the connection between a statute or regulation and interstate commerce, “Congress normally is not required to make formal findings as to- the substantial burdens that an activity has on interstate commerce.” United States v. Lopez, 514 U.S. 549, 562, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).
There are cases upholding statutes and regulations that were adopted without express findings about their impact upon interstate commerce. For example, in Gibbs v. Babbitt, 214 F.3d 483 (4th Cir.2000), the Fourth Circuit upheld a regulation prohibiting the taking of red wolves on private property promulgated under the Endangered Species Act. Although the Court recognized that there were no formal find*622ings with regard to the impact of the regulation on interstate commerce, the Court recognized that it must “take account of congressional judgment and the judgment of the agency designated to implement the statute.” Gibbs, 214 F.3d at 493 n. 3. As a second example, the Seventh Circuit recently held that 18 U.S.C. § 2252(a)(4)(B) (possession of child pornography) was a constitutionally permissible exercise of Congress’s power under the Commerce Clause despite the lack of express congressional findings because “Congress could have rationally reasoned” that intrastate possession of child pornography affects the interstate market for child pornography. United States v. Angle, 234 F.3d 326, 337 (7th Cir.2000). In this case, Congress rationally could have found that the number of individuals deterred by the $2.00 fee from engaging in interstate commerce was substantial. It is certainly not obvious to me that the amount of economic activity affected here is insignificant or de minim-is.
Moreover, I find the Court’s attempt to distinguish the racial-discrimination cases, Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), and Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964), unconvincing. It is true that the effect on commerce considered in those two cases was more pronounced. That is, Congress was attempting to override an absolute prohibition against participation in a certain economic activity based on a prospective patron’s race. Here, disabled individuals are not kept out of the store altogether; rather the state has made it more difficult for them to enter the store. The difference in the two situations, I think, is one of degree rather than kind. I do not believe that this difference justifies making a distinction for Commerce Clause purposes.
The State of Missouri has made it more costly for certain disabled individuals to gain convenient access to places of business where commercial activity affecting interstate commerce is taking place. Congress has prohibited such state action by statute, and the prohibition has been made explicit by regulation. Automobiles and department stores are the very stuff of interstate commerce. For these reasons, I respectfully dissent. I would affirm the judgment of the District Court.