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

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

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

ONEIDA-HERKIMER SOLID WASTE MANAGEMENT

AUTHORITY ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT

No. 05–1345. Argued January 8, 2007—Decided April 30, 2007
Traditionally, municipalities in respondent Counties disposed of their
own solid wastes, often via landfills that operated without permits
and in violation of state regulations. Facing an environmental crisis
and an uneasy relationship with local waste management companies,
the Counties requested and the State created respondent Authority.
The Counties and the Authority agreed that the Authority would
manage all solid waste in the Counties. Private haulers could pick
up citizens’ trash, but the Authority would process, sort, and send it
off for disposal. The Authority would also provide other services, in
cluding recycling. If the Authority’s operating costs and debt service
were not recouped through the “tipping fees” it charged, the Counties
must make up the difference. To avoid such liability, the Counties
enacted “flow control” ordinances requiring private haulers to obtain
permits to collect solid waste in the Counties and to deliver the waste
to the Authority’s sites.
Petitioners, a trade association and individual haulers, filed suit
under 42 U. S. C. §1983, alleging that the flow control ordinances vio
late the Commerce Clause by discriminating against interstate com
merce. They submitted evidence that without the ordinances and the
associated tipping fees, they could dispose of solid waste at out-of
state facilities for far less. Ruling in the haulers’ favor, the District
Court held that nearly all flow control laws had been categorically re
jected in C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383, where
this Court held that an ordinance forcing haulers to deliver waste to
a particular private facility discriminated against interstate com
merce. Reversing, the Second Circuit held that Carbone and other of
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Syllabus

this Court’s so-called “dormant” Commerce Clause precedents allow
for a distinction between laws that benefit public, as opposed to pri
vate, facilities.
Held: The judgment is affirmed.
261 F. 3d 245 and 438 F. 3d 150, affirmed.
THE CHIEF JUSTICE delivered the opinion of the Court with respect
to Parts I, II–A, II–B, and II–C, concluding that the Counties’ flow
control ordinances, which treat in-state private business interests ex
actly the same as out-of-state ones, do not discriminate against inter
state commerce. Pp. 6–13.
(a) To determine whether a law violates the dormant Commerce
Clause, the Court first asks whether it discriminates on its face
against interstate commerce. In this context, “ ‘discrimination’ sim
ply means differential treatment of in-state and out-of-state economic
interests that benefits the former and burdens the latter.” Oregon
Waste Systems, Inc. v. Department of Environmental Quality of Ore.,
511 U. S. 93, 99. Discriminatory laws motivated by “simple economic
protectionism” are subject to a “virtually per se rule of invalidity,”
Philadelphia v. New Jersey, 437 U. S. 617, 624, which can only be
overcome by a showing that there is no other means to advance a le
gitimate local purpose, Maine v. Taylor, 477 U. S. 131, 138. P. 6.
(b) Carbone does not control this case. Carbone involved a flow
control ordinance requiring that all nonhazardous solid waste within
a town be deposited, upon payment of an above-market tipping fee, at
a transfer facility run by a private contractor under an agreement
with the town. See 511 U. S., at 387. The dissent there opined that
the ostensibly private transfer station was “essentially a municipal
facility,” id., at 419, and that this distinction should have saved the
ordinance because favoring local government is different from favor
ing a particular private company. The majority’s failure to comment
on the public-private distinction does not prove, as the haulers’ con
tend, that the majority agreed with the dissent’s characterization of
the facility, but thought there was no difference under the dormant
Commerce Clause between laws favoring private entities and those
favoring public ones. Rather, the Carbone majority avoided the issue
because the transfer station was private, and therefore the question
whether public facilities may be favored was not properly before the
Court. The majority viewed the ordinance as “just one more instance
of local processing requirements that we long have held invalid,” id.,
at 391, citing six local processing cases involving discrimination in
favor of private enterprise. If the Court were extending this line of
cases to cover discrimination in favor of local government, it could be
expected to have said so. Thus, Carbone cannot be regarded as hav
ing decided the public-private question. Pp. 6–9.
 Cite as: 550 U. S. ____ (2007) 3

Syllabus

(c) The flow control ordinances in this case do not discriminate
against interstate commerce. Compelling reasons justify treating
these laws differently from laws favoring particular private busi
nesses over their competitors. “[A]ny notion of discrimination as
sumes a comparison of substantially similar entities,” General Motors
Corp. v. Tracy, 519 U. S. 278, 298, whereas government’s important
responsibilities to protect the health, safety, and welfare of its citi
zens set it apart from a typical private business, cf. id., at 313. More
over, in contrast to laws favoring in-state business over out-of-state
competition, which are often the product of economic protectionism,
laws favoring local government may be directed toward any number
of legitimate goals unrelated to protectionism. Here, the ordinances
enable the Counties to pursue particular policies with respect to
waste handling and treatment, while allocating the costs of those
policies on citizens and businesses according to the volume of waste
they generate. The contrary approach of treating public and private
entities the same under the dormant Commerce Clause would lead to
unprecedented and unbounded interference by the courts with state
and local government. The Counties’ citizens could have left the en
tire matter of waste management services for the private sector, in
which case any regulation they undertook could not discriminate
against interstate commerce. But it was also open to them to vest re
sponsibility for the matter with their government, and to adopt flow
control ordinances to support the government effort. It is not the of
fice of the Commerce Clause to control the voters’ decision in this re
gard. The Court is particularly hesitant to interfere here because
waste disposal is typically and traditionally a function of local gov
ernment exercising its police power. Nothing in the Commerce
Clause vests the responsibility for such a policy judgment with the
Federal Judiciary. Finally, while the Court’s dormant Commerce
Clause cases often find discrimination when the burden of state regu
lation falls on interests outside the State, the most palpable harm
imposed by the ordinances at issue—more expensive trash removal—
will likely fall upon the very people who voted for the laws, the Coun
ties’ citizens. There is no reason to step in and hand local businesses
a victory they could not obtain through the political process. Pp. 10–
13.

ROBERTS, C. J., delivered the opinion of the Court, except as to Part
II–D. SOUTER, GINSBURG, and BREYER, JJ., joined that opinion in full.
SCALIA, J., filed an opinion concurring as to Parts I and II–A through
II–C. THOMAS, J., filed an opinion concurring in the judgment. ALITO,
J., filed a dissenting opinion, in which STEVENS and KENNEDY, JJ.,
joined.
 Cite as: 550 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1345
_________________

UNITED HAULERS ASSOCIATION, INC., ET AL.,

PETITIONERS v. ONEIDA-HERKIMER SOLID

WASTE MANAGEMENT AUTHORITY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 30, 2007]

CHIEF JUSTICE ROBERTS delivered the opinion of the
Court, except as to Part II–D.
“Flow control” ordinances require trash haulers to de
liver solid waste to a particular waste processing facility.
In C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383
(1994), this Court struck down under the Commerce
Clause a flow control ordinance that forced haulers to
deliver waste to a particular private processing facility. In
this case, we face flow control ordinances quite similar to
the one invalidated in Carbone. The only salient differ
ence is that the laws at issue here require haulers to bring
waste to facilities owned and operated by a state-created
public benefit corporation. We find this difference consti
tutionally significant. Disposing of trash has been a tradi
tional government activity for years, and laws that favor
the government in such areas—but treat every private
business, whether in-state or out-of-state, exactly the
same—do not discriminate against interstate commerce
for purposes of the Commerce Clause. Applying the
Commerce Clause test reserved for regulations that do not
2 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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Opinion of the Court

discriminate against interstate commerce, we uphold
these ordinances because any incidental burden they may
have on interstate commerce does not outweigh the bene
fits they confer on the citizens of Oneida and Herkimer
Counties.
I
Located in central New York, Oneida and Herkimer
Counties span over 2,600 square miles and are home to
about 306,000 residents. Traditionally, each city, town, or
village within the Counties has been responsible for dis
posing of its own waste. Many had relied on local land
fills, some in a more environmentally responsible fashion
than others.
By the 1980’s, the Counties confronted what they could
credibly call a solid waste “ ‘crisis.’ ” Brief for Respondents
4. Many local landfills were operating without permits
and in violation of state regulations. Sixteen were ordered
to close and remediate the surrounding environment,
costing the public tens of millions of dollars. These envi
ronmental problems culminated in a federal clean-up
action against a landfill in Oneida County; the defen
dants in that case named over 600 local businesses and
several municipalities and school districts as third-party
defendants.
The “crisis” extended beyond health and safety concerns.
The Counties had an uneasy relationship with local waste
management companies, enduring price fixing, pervasive
overcharging, and the influence of organized crime. Dra
matic price hikes were not uncommon: In 1986, for exam
ple, a county contractor doubled its waste disposal rate on
six weeks’ notice.
Responding to these problems, the Counties requested
and New York’s Legislature and Governor created the
Oneida-Herkimer Solid Waste Management Authority
(Authority), a public benefit corporation. See N. Y. Pub.
 Cite as: 550 U. S. ____ (2007) 3

Opinion of the Court

Auth. Law Ann. §2049–aa et seq. (West 1995). The Au
thority is empowered to collect, process, and dispose of
solid waste generated in the Counties. §2049–ee(4). To
further the Authority’s governmental and public purposes,
the Counties may impose “appropriate and reasonable
limitations on competition” by, for instance, adopting
“local laws requiring that all solid waste . . . be delivered
to a specified solid waste management-resource recovery
facility.” §2049–tt(3).
In 1989, the Authority and the Counties entered into a
Solid Waste Management Agreement, under which the
Authority agreed to manage all solid waste within the
Counties. Private haulers would remain free to pick up
citizens’ trash from the curb, but the Authority would take
over the job of processing the trash, sorting it, and sending
it off for disposal. To fulfill its part of the bargain, the
Authority agreed to purchase and develop facilities for the
processing and disposal of solid waste and recyclables
generated in the Counties.
The Authority collected “tipping fees” to cover its operat
ing and maintenance costs for these facilities.1 The tip
ping fees significantly exceeded those charged for waste
removal on the open market, but they allowed the Author
ity to do more than the average private waste disposer. In
addition to landfill transportation and solid waste dis
posal, the fees enabled the Authority to provide recycling
of 33 kinds of materials, as well as composting, household
hazardous waste disposal, and a number of other services.
If the Authority’s operating costs and debt service were
not recouped through tipping fees and other charges, the
——————
1 Tipping fees are disposal charges levied against collectors who drop

off waste at a processing facility. They are called “tipping” fees because
garbage trucks literally tip their back end to dump out the carried
waste. As of 1995, haulers in the Counties had to pay tipping fees of at
least $86 per ton, a price that ballooned to as much as $172 per ton if a
particular load contained more than 25% recyclables.
4 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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Opinion of the Court

agreement provided that the Counties would make up the
difference.
As described, the agreement had a flaw: Citizens might
opt to have their waste hauled to facilities with lower
tipping fees. To avoid being stuck with the bill for facili
ties that citizens voted for but then chose not to use, the
Counties enacted “flow control” ordinances requiring
that all solid waste generated within the Counties be
delivered to the Authority’s processing sites.2 Private
haulers must obtain a permit from the Authority to collect
waste in the Counties. Penalties for noncompliance with
the ordinances include permit revocation, fines, and
imprisonment.
Petitioners are United Haulers Association, Inc., a trade
association made up of solid waste management compa
nies, and six haulers that operated in Oneida and Herki
mer Counties when this action was filed. In 1995, they
sued the Counties and the Authority under Rev. Stat.
§1979, 42 U. S. C. §1983, alleging that the flow control
laws violate the Commerce Clause by discriminating
against interstate commerce. They submitted evidence

——————
2 Oneida’sflow control ordinance provides in part:
“From the time of placement of solid waste and of recyclables at the
roadside or other designated area approved by the County or by the
Authority pursuant to contract with the County, or by a person for
collection in accordance herewith, such solid waste and recyclables
shall be delivered to the appropriate facility, entity or person responsi
ble for disposition designated by the County or by the Authority pursu
ant to contract with the Authority.” App. to Pet. for Cert. 122a.
The relevant portion of Herkimer’s flow control ordinance is substan
tially similar:
“After placement of garbage and of recyclable materials at the roadside
or other designated area approved by the Legislature by a person for
collection in accordance herewith, such garbage and recyclable material
shall be delivered to the appropriate facility designated by the Legisla
ture, or by the Authority pursuant to contract with the County.” Id., at
135a.
 Cite as: 550 U. S. ____ (2007) 5

Opinion of the Court

that without the flow control laws and the associated $86
per-ton tipping fees, they could dispose of solid waste at
out-of-state facilities for between $37 and $55 per ton,
including transportation.
The District Court read our decision in Carbone, 511
U. S. 383, as categorically rejecting nearly all flow control
laws. The court ruled in the haulers’ favor, enjoining
enforcement of the Counties’ laws. The Second Circuit
reversed, reasoning that Carbone and our other dormant
Commerce Clause precedents allow for a distinction be
tween laws that benefit public as opposed to private facili
ties. 261 F. 3d 245, 263 (2001). Accordingly, it held that a
statute does not discriminate against interstate commerce
when it favors local government at the expense of all
private industry. The court remanded to let the District
Court decide whether the Counties’ ordinances neverthe
less placed an incidental burden on interstate commerce,
and if so, whether the ordinances’ benefits outweighed
that burden.
On remand and after protracted discovery, a Magistrate
Judge and the District Court found that the haulers did
not show that the ordinances imposed any cognizable
burden on interstate commerce. The Second Circuit af
firmed, assuming that the laws exacted some toll on inter
state commerce, but finding any possible burden “modest”
compared to the “clear and substantial” benefits of the
ordinances. 438 F. 3d 150, 160 (2006). Because the Sixth
Circuit had recently issued a conflicting decision holding
that a flow control ordinance favoring a public entity does
facially discriminate against interstate commerce, see
National Solid Wastes Management Assn. v. Daviess Cty.,
434 F. 3d 898 (2006), we granted certiorari, 548 U. S. ___
(2006).
6 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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Opinion of the Court

II

A

The Commerce Clause provides that “Congress shall
have Power . . . [t]o regulate Commerce with foreign Na
tions, and among the several States.” U. S. Const., Art. I,
§8, cl. 3. Although the Constitution does not in terms
limit the power of States to regulate commerce, we have
long interpreted the Commerce Clause as an implicit
restraint on state authority, even in the absence of a
conflicting federal statute. See Case of the State Freight
Tax, 15 Wall. 232, 279 (1873); Cooley v. Board of Wardens
of Port of Philadelphia ex rel. Soc. for Relief of Distressed
Pilots, 12 How. 299, 318 (1852).
To determine whether a law violates this so-called
“dormant” aspect of the Commerce Clause, we first ask
whether it discriminates on its face against interstate
commerce. American Trucking Assns., Inc. v. Michigan
Pub. Serv. Comm’n, 545 U. S. 429, 433 (2005); Fort Gratiot
Sanitary Landfill, Inc. v. Michigan Dept. of Natural Re
sources, 504 U. S. 353, 359 (1992). In this context, “ ‘dis
crimination’ simply means differential treatment of in
state and out-of-state economic interests that benefits the
former and burdens the latter.” Oregon Waste Systems,
Inc. v. Department of Environmental Quality of Ore., 511
U. S. 93, 99 (1994); New Energy Co. of Ind. v. Limbach,
486 U. S. 269, 273 (1988). Discriminatory laws motivated
by “simple economic protectionism” are subject to a “virtu
ally per se rule of invalidity,” Philadelphia v. New Jersey,
437 U. S. 617, 624 (1978), which can only be overcome by a
showing that the State has no other means to advance a
legitimate local purpose, Maine v. Taylor, 477 U. S. 131,
138 (1986).
B
Following the lead of the Sixth Circuit in Daviess
County, the haulers argue vigorously that the Counties’
 Cite as: 550 U. S. ____ (2007) 7

Opinion of the Court

ordinances discriminate against interstate commerce
under Carbone. In Carbone, the town of Clarkstown, New
York, hired a private contractor to build a waste transfer
station. According to the terms of the deal, the contractor
would operate the facility for five years, charging an
above-market tipping fee of $81 per ton; after five years,
the town would buy the facility for one dollar. The town
guaranteed that the facility would receive a certain vol
ume of trash per year. To make good on its promise,
Clarkstown passed a flow control ordinance requiring that
all nonhazardous solid waste within the town be deposited
at the transfer facility. See 511 U. S., at 387.
This Court struck down the ordinance, holding that it
discriminated against interstate commerce by “hoard[ing]
solid waste, and the demand to get rid of it, for the benefit
of the preferred processing facility.” Id., at 392. The
dissent pointed out that all of this Court’s local processing
cases involved laws that discriminated in favor of private
entities, not public ones. Id., at 411 (opinion of SOUTER,
J.). According to the dissent, Clarkstown’s ostensibly
private transfer station was “essentially a municipal
facility,” id., at 419, and this distinction should have saved
Clarkstown’s ordinance because favoring local government
is by its nature different from favoring a particular private
company. The majority did not comment on the dissent’s
public-private distinction.
The parties in this case draw opposite inferences from
the majority’s silence. The haulers say it proves that the
majority agreed with the dissent’s characterization of the
facility, but thought there was no difference under the
dormant Commerce Clause between laws favoring private
entities and those favoring public ones. The Counties
disagree, arguing that the majority studiously avoided the
issue because the facility in Carbone was private, and
therefore the question whether public facilities may be
8 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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Opinion of the Court

favored was not properly before the Court.3
We believe the latter interpretation of Carbone is cor
rect. As the Second Circuit explained, “in Carbone the
Justices were divided over the fact of whether the favored
facility was public or private, rather than on the import of
that distinction.” 261 F. 3d, at 259 (emphasis in original).
The Carbone dissent offered a number of reasons why
public entities should be treated differently from private
ones under the dormant Commerce Clause. See 511 U. S.,
at 419–422 (opinion of SOUTER, J.). It is hard to suppose
that the Carbone majority definitively rejected these
arguments without explaining why.
The Carbone majority viewed Clarkstown’s flow control
ordinance as “just one more instance of local processing
requirements that we long have held invalid.” Id., at 391.
It then cited six local processing cases, every one of which
involved discrimination in favor of private enterprise.4
——————
3 Each side makes much of the Carbone majority’s various descrip

tions of the facility. The haulers point out that the Court twice referred
to the construction and financing of the transfer station as the town’s
project. See 511 U. S., at 387 (“its new facility”), 394 (“its project”);
Brief for Petitioners 20–22. The Counties note that the majority
referred to the transfer station as a “town-sponsored facility,” Carbone,
511 U. S., at 393, a “favored local operator,” id., at 389, “the preferred
processing facility,” a “single local proprietor,” and a “local business,”
id., at 392, but never as a public facility. Brief for Respondents 17, n. 7.
The dissent has mined the Carbone decision, appendix, and briefs for
further instances of allegedly supportive terminology, post, at 4–5
(opinion of ALITO, J.) but we continue to find this duel of labels at best
inconclusive.
4 See South-Central Timber Development, Inc. v. Wunnicke, 467 U. S.

82 (1984) (invalidating Alaska regulation requiring all Alaskan timber
to be processed in-state prior to export); Pike v. Bruce Church, Inc., 397
U. S. 137 (1970) (invalidating application of an Arizona statute to
require Arizona-grown cantaloupes to be packaged within the State
before export); Toomer v. Witsell, 334 U. S. 385 (1948) (invalidating
South Carolina statute requiring shrimp fisherman to unload, pack,
and stamp their catch before shipping it to another State); Foster-
Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928) (invalidating a
 Cite as: 550 U. S. ____ (2007) 9

Opinion of the Court

The Court’s own description of the cases acknowledges
that the “offending local laws hoard a local resource—be it
meat, shrimp, or milk—for the benefit of local businesses
that treat it.” Id., at 392 (emphasis added). If the Court
were extending this line of local processing cases to cover
discrimination in favor of local government, one would
expect it to have said so. Cf. United States v. Burr, 25
F. Cas. 55, 165 (No. 14,693) (CC Va. 1807) (Marshall,
C. J.) (“[A]n opinion which is to . . . establish a principle
never before recognized, should be expressed in plain and
explicit terms”).
The Carbone majority stated that “[t]he only conceivable
distinction” between the laws in the local processing cases
and Clarkstown’s flow control ordinance was that Clark
stown’s ordinance favored a single local business, rather
than a group of them. 511 U. S., at 392 (emphasis added).
If the Court thought Clarkstown’s processing facility was
public, that additional distinction was not merely “con
ceivable”—it was conceived, and discussed at length, by
three Justices in dissent. Carbone cannot be regarded as
having decided the public-private question.5
——————
Louisiana statute prohibiting the export of shrimp unless the heads
and hulls had first been removed within the State); Johnson v. Haydel,
278 U. S. 16 (1928) (invalidating analogous Louisiana statute for
oysters); Minnesota v. Barber, 136 U. S. 313 (1890) (invalidating
Minnesota law requiring any meat sold within the State to be examined
by an in-state inspector). Dean Milk Co. v. Madison, 340 U. S. 349
(1951) (invalidating local ordinance requiring all milk sold in the city to
be pasteurized within five miles of the city center)—discussed else
where in Carbone and in the dissent here, post, at 12–13—is readily
distinguishable on the same ground.
5 The dissent asserts that the Court “long ago recognized that the

Commerce Clause can be violated by a law that discriminates in favor
of a state-owned monopoly.” Post, at 6. The authority it cites—Scott v.
Donald, 165 U. S. 58 (1897), and Vance v. W. A. Vandercook Co., 170
U. S. 438, 442 (1898)—certainly qualifies as from “long ago,” but does
not support the proposition. Scott struck down two laws that discrimi
nated in favor of in-state businesses and against out-of-state busi
10 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
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Opinion of the Court

C
The flow control ordinances in this case benefit a clearly
public facility, while treating all private companies exactly
the same. Because the question is now squarely presented
on the facts of the case before us, we decide that such flow
control ordinances do not discriminate against interstate
commerce for purposes of the dormant Commerce Clause.
Compelling reasons justify treating these laws differ
ently from laws favoring particular private businesses
over their competitors. “Conceptually, of course, any
notion of discrimination assumes a comparison of substan
tially similar entities.” General Motors Corp. v. Tracy, 519
U. S. 278, 298 (1997) (footnote omitted). But States and
municipalities are not private businesses—far from it.
Unlike private enterprise, government is vested with the
responsibility of protecting the health, safety, and welfare
of its citizens. See Metropolitan Life Ins. Co. v. Massachu
setts, 471 U. S. 724, 756 (1985) (“The States traditionally
have had great latitude under their police powers to legis
late as to the protection of the lives, limbs, health, comfort,
and quiet of all persons” (internal quotation marks omit

——————
nesses; neither law favored local government at the expense of all
private industry. See 165 U. S., at 92–93, 101; Granholm v. Heald, 544
U. S. 460, 478–479 (2005) (describing Scott holding). Scott is simply
another case like those cited in footnote 4.
Vance actually upheld “South Carolina’s monopoly over liquor distri
bution[,] . . . reject[ing] the argument that this monopoly system was
unconstitutionally discriminatory.” Granholm, supra, at 507 (THOMAS,
J., dissenting) (citing Vance, supra, at 450–452). It was the dissent in
Vance that argued that “such a state monopoly system constituted
unconstitutional discrimination.” Granholm, supra, at 507 (THOMAS, J.,
dissenting) (citing 170 U. S., at 462–468 (opinion of Shiras, J.)). The
Vance Court simply struck down a regulation on direct shipments to
consumers for personal use, under the Court’s excruciatingly arcane
pre-Prohibition precedents. See 170 U. S., at 455. Most tellingly,
Vance harkens back to a bygone era; until the dissent today, it had
been cited by this Court in only two cases in the past 60 years.
 Cite as: 550 U. S. ____ (2007) 11

Opinion of the Court

ted)). These important responsibilities set state and local
government apart from a typical private business. Cf.
Tracy, supra, at 313 (SCALIA, J., concurring) (“Nothing in
this Court’s negative Commerce Clause jurisprudence”
compels the conclusion “that private marketers engaged in
the sale of natural gas are similarly situated to public
utility companies”).
Given these differences, it does not make sense to re
gard laws favoring local government and laws favoring
private industry with equal skepticism. As our local proc
essing cases demonstrate, when a law favors in-state
business over out-of-state competition, rigorous scrutiny is
appropriate because the law is often the product of “simple
economic protectionism.” Wyoming v. Oklahoma, 502
U. S. 437, 454 (1992); Philadelphia v. New Jersey, 437
U. S., at 626–627. Laws favoring local government, by
contrast, may be directed toward any number of legitimate
goals unrelated to protectionism. Here the flow control
ordinances enable the Counties to pursue particular poli
cies with respect to the handling and treatment of waste
generated in the Counties, while allocating the costs of
those policies on citizens and businesses according to the
volume of waste they generate.
The contrary approach of treating public and private
entities the same under the dormant Commerce Clause
would lead to unprecedented and unbounded interference
by the courts with state and local government. The dor
mant Commerce Clause is not a roving license for federal
courts to decide what activities are appropriate for state
and local government to undertake, and what activities
must be the province of private market competition. In
this case, the citizens of Oneida and Herkimer Counties
have chosen the government to provide waste manage
ment services, with a limited role for the private sector in
arranging for transport of waste from the curb to the
public facilities. The citizens could have left the entire
12 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
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Opinion of the Court

matter for the private sector, in which case any regulation
they undertook could not discriminate against interstate
commerce. But it was also open to them to vest responsi
bility for the matter with their government, and to adopt
flow control ordinances to support the government effort.
It is not the office of the Commerce Clause to control the
decision of the voters on whether government or the pri
vate sector should provide waste management services.
“The Commerce Clause significantly limits the ability of
States and localities to regulate or otherwise burden the
flow of interstate commerce, but it does not elevate free
trade above all other values.” Maine v. Taylor, 477 U. S.,
at 151. See Exxon Corp. v. Governor of Maryland, 437
U. S. 117, 127 (1978) (Commerce Clause does not protect
“the particular structure or method of operation” of a
market).
We should be particularly hesitant to interfere with the
Counties’ efforts under the guise of the Commerce Clause
because “[w]aste disposal is both typically and tradition
ally a local government function.” 261 F. 3d, at 264 (case
below) (Calabresi, J., concurring); see USA Recycling, Inc.
v. Town of Babylon, 66 F. 3d 1272, 1275 (CA2 1995) (“For
ninety years, it has been settled law that garbage collec
tion and disposal is a core function of local government in
the United States”); M. Melosi, Garbage in the Cities:
Refuse, Reform, and the Environment, 1880–1980, pp.
153–155 (1981). Congress itself has recognized local gov
ernment’s vital role in waste management, making clear
that “collection and disposal of solid wastes should con
tinue to be primarily the function of State, regional, and
local agencies.” Resource Conservation and Recovery Act
of 1976, 90 Stat. 2797, 42 U. S. C. §6901(a)(4). The policy
of the State of New York favors “displac[ing] competition
with regulation or monopoly control” in this area. N. Y.
Pub. Auth. Law Ann. §2049–tt(3). We may or may not
agree with that approach, but nothing in the Commerce
 Cite as: 550 U. S. ____ (2007) 13

Opinion of the Court

Clause vests the responsibility for that policy judgment
with the Federal Judiciary.6
Finally, it bears mentioning that the most palpable
harm imposed by the ordinances—more expensive trash
removal—is likely to fall upon the very people who voted
for the laws. Our dormant Commerce Clause cases often
find discrimination when a State shifts the costs of regula
tion to other States, because when “the burden of state
regulation falls on interests outside the state, it is unlikely
to be alleviated by the operation of those political re
straints normally exerted when interests within the state
are affected.” Southern Pacific Co. v. Arizona ex rel. Sulli
van, 325 U. S. 761, 767–768, n. 2 (1945). Here, the citi
zens and businesses of the Counties bear the costs of the
ordinances. There is no reason to step in and hand local
businesses a victory they could not obtain through the
political process.
We hold that the Counties’ flow control ordinances,
which treat in-state private business interests exactly the
same as out-of-state ones, do not “discriminate against
interstate commerce” for purposes of the dormant Com
merce Clause.7
——————
6 JUSTICE THOMAS is thus wrong in stating that our approach might

suggest “a policy-driven preference for government monopoly over
privatization.” Post, at 6 (opinion concurring in judgment). That is
instead the preference of the affected locality here. Our opinion simply
recognizes that a law favoring a public entity and treating all private
entities the same does not discriminate against interstate commerce as
does a law favoring local business over all others.
7 The Counties and their amicus were asked at oral argument if af

firmance would lead to the “Oneida-Herkimer Hamburger Stand,”
accompanied by a “flow control” law requiring citizens to purchase their
burgers only from the state-owned producer. Tr. of Oral Arg. 33–34
(Counties), 45–46, 49–50 (amicus State of New York). We doubt it.
“The existence of major in-state interests adversely affected by [a law]
is a powerful safeguard against legislative abuse.” Minnesota v. Clover
Leaf Creamery Co., 449 U. S. 456, 473, n. 17 (1981). Recognizing that
local government may facilitate a customary and traditional govern
14 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Opinion of ofOBERTS, C. J.
Opinion R the Court

D
The Counties’ flow control ordinances are properly
analyzed under the test set forth in Pike v. Bruce Church,
Inc., 397 U. S. 137, 142 (1970), which is reserved for laws
“directed to legitimate local concerns, with effects upon
interstate commerce that are only incidental.” Philadel
phia v. New Jersey, 437 U. S., at 624. Under the Pike test,
we will uphold a nondiscriminatory statute like this one
“unless the burden imposed on [interstate] commerce is
clearly excessive in relation to the putative local benefits.”
397 U. S., at 142; Northwest Central Pipeline Corp. v.
State Corporation Comm’n of Kan., 489 U. S. 493, 525–526
(1989).
After years of discovery, both the Magistrate Judge and
the District Court could not detect any disparate impact
on out-of-state as opposed to in-state businesses. The
Second Circuit alluded to, but did not endorse, a “rather
abstract harm” that may exist because “the Counties’ flow
control ordinances have removed the waste generated in
Oneida and Herkimer Counties from the national market
place for waste processing services.” 438 F. 3d, at 160.
We find it unnecessary to decide whether the ordinances
impose any incidental burden on interstate commerce
because any arguable burden does not exceed the public
benefits of the ordinances.
The ordinances give the Counties a convenient and
effective way to finance their integrated package of waste-
disposal services. While “revenue generation is not a local
interest that can justify discrimination against interstate
——————
ment function such as waste disposal, without running afoul of the
Commerce Clause, is hardly a prescription for state control of the
economy. In any event, Congress retains authority under the Com
merce Clause as written to regulate interstate commerce, whether
engaged in by private or public entities. It can use this power, as it has
in the past, to limit state use of exclusive franchises. See, e.g., Gibbons
v. Ogden, 9 Wheat. 1, 221 (1824).
 Cite as: 550 U. S. ____ (2007) 15

Opinion of ofOBERTS, C. J.
Opinion R the Court

commerce,” Carbone, 511 U. S., at 393 (emphasis added),
we think it is a cognizable benefit for purposes of the Pike
test.
At the same time, the ordinances are more than financ
ing tools. They increase recycling in at least two ways,
conferring significant health and environmental benefits
upon the citizens of the Counties. First, they create en
hanced incentives for recycling and proper disposal of
other kinds of waste. Solid waste disposal is expensive in
Oneida-Herkimer, but the Counties accept recyclables and
many forms of hazardous waste for free, effectively en
couraging their citizens to sort their own trash. Second,
by requiring all waste to be deposited at Authority facili
ties, the Counties have markedly increased their ability to
enforce recycling laws. If the haulers could take waste to
any disposal site, achieving an equal level of enforcement
would be much more costly, if not impossible. For these
reasons, any arguable burden the ordinances impose on
interstate commerce does not exceed their public benefits.
* * *
The Counties’ ordinances are exercises of the police
power in an effort to address waste disposal, a typical and
traditional concern of local government. The haulers
nevertheless ask us to hold that laws favoring public
entities while treating all private businesses the same are
subject to an almost per se rule of invalidity, because of
asserted discrimination. In the alternative, they maintain
that the Counties’ laws cannot survive the more permis
sive Pike test, because of asserted burdens on commerce.
There is a common thread to these arguments: They are
invitations to rigorously scrutinize economic legislation
passed under the auspices of the police power. There was
a time when this Court presumed to make such binding
judgments for society, under the guise of interpreting the
Due Process Clause. See Lochner v. New York, 198 U. S.
16 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Opinion of ofOBERTS, C. J.
Opinion R the Court

45 (1905). We should not seek to reclaim that ground for
judicial supremacy under the banner of the dormant
Commerce Clause.
The judgments of the United States Court of Appeals for
the Second Circuit are affirmed.
It is so ordered.
 Cite as: 550 U. S. ____ (2007) 1

SCALIA, J., concurring in part

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1345
_________________

UNITED HAULERS ASSOCIATION, INC., ET AL.,

PETITIONERS v. ONEIDA-HERKIMER SOLID

WASTE MANAGEMENT AUTHORITY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 30, 2007]

JUSTICE SCALIA, concurring in part.
I join Part I and Parts II–A through II–C of the Court’s
opinion. I write separately to reaffirm my view that “the
so-called ‘negative’ Commerce Clause is an unjustified
judicial invention, not to be expanded beyond its existing
domain.” General Motors Corp. v. Tracy, 519 U. S. 278,
312 (1997) (SCALIA, J., concurring). “The historical record
provides no grounds for reading the Commerce Clause to
be other than what it says—an authorization for Congress
to regulate commerce.” Tyler Pipe Industries, Inc. v.
Washington State Dept. of Revenue, 483 U. S. 232, 263
(1987) (SCALIA, J., concurring in part and dissenting in
part).
I have been willing to enforce on stare decisis grounds a
“negative” self-executing Commerce Clause in two situa
tions: “(1) against a state law that facially discriminates
against interstate commerce, and (2) against a state law
that is indistinguishable from a type of law previously
held unconstitutional by the Court.” West Lynn Creamery,
Inc. v. Healy, 512 U. S. 186, 210 (1994) (SCALIA, J., concur
ring in judgment). As today’s opinion makes clear, the
flow-control law at issue in this case meets neither condi
tion. It benefits a public entity performing a traditional
local-government function and treats all private entities
2 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

SCALIA, J., concurring in part

precisely the same way. “Disparate treatment constitutes
discrimination only if the objects of the disparate treat
ment are, for the relevant purposes, similarly situated.”
Camps Newfound/Owatonna, Inc. v. Town of Harrison,
520 U. S. 564, 601 (1997) (SCALIA, J., dissenting). None of
this Court’s cases concludes that public entities and pri
vate entities are similarly situated for Commerce Clause
purposes. To hold that they are “would broaden the nega
tive Commerce Clause beyond its existing scope, and
intrude on a regulatory sphere traditionally occupied
by . . . the States.” Tracy, supra, at 313 (SCALIA, J.,
concurring).
I am unable to join Part II–D of the principal opinion, in
which the plurality performs so-called “Pike balancing.”
Generally speaking, the balancing of various values is left
to Congress—which is precisely what the Commerce
Clause (the real Commerce Clause) envisions.
 Cite as: 550 U. S. ____ (2007) 1

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1345
_________________

UNITED HAULERS ASSOCIATION, INC., ET AL.,

PETITIONERS v. ONEIDA-HERKIMER SOLID

WASTE MANAGEMENT AUTHORITY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 30, 2007]

JUSTICE THOMAS, concurring in the judgment.
I concur in the judgment. Although I joined C & A
Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), I no
longer believe it was correctly decided. The negative
Commerce Clause has no basis in the Constitution and
has proved unworkable in practice. See Camps New
found/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564,
610–620 (1997) (THOMAS, J., dissenting); Tyler Pipe Indus
tries, Inc. v. Washington State Dept. of Revenue, 483 U. S.
232, 259–265 (1987) (SCALIA, J., concurring in part and
dissenting in part); License Cases, 5 How. 504, 578–586
(1847) (Taney, C. J.). As the debate between the majority
and dissent shows, application of the negative Commerce
Clause turns solely on policy considerations, not on the
Constitution. Because this Court has no policy role in
regulating interstate commerce, I would discard the
Court’s negative Commerce Clause jurisprudence.
I
Under the Commerce Clause, “Congress shall have
Power . . . [t]o regulate Commerce with foreign Nations,
and among the several States, and with the Indian
Tribes.” U. S. Const., Art. I, §8, cl. 3. The language of the
Clause allows Congress not only to regulate interstate
2 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

THOMAS, J., concurring in judgment

commerce but also to prevent state regulation of interstate
commerce. State Bd. of Ins. v. Todd Shipyards Corp., 370
U. S. 451, 456 (1962); Gibbons v. Ogden, 9 Wheat. 1, 210
(1824). Expanding on the interstate-commerce powers
explicitly conferred on Congress, this Court has inter
preted the Commerce Clause as a tool for courts to strike
down state laws that it believes inhibit interstate com
merce. But there is no basis in the Constitution for that
interpretation.
The Court does not contest this point, and simply begins
its analysis by appealing to stare decisis:
“Although the Constitution does not in terms limit the
power of States to regulate commerce, we have long
interpreted the Commerce Clause as an implicit re
straint on state authority, even in the absence of a
conflicting federal statute. See Case of the State
Freight Tax, 15 Wall. 232, 279 (1873); Cooley v. Board
of Wardens of Port of Philadelphia ex rel. Soc. for Re
lief of Distressed Pilots, 12 How. 299, 318 (1852).”
Ante, at 6.
The Court’s reliance on Cooley and State Freight Tax is
curious because the Court has abandoned the reasoning of
those cases in its more recent jurisprudence. Cooley and
State Freight Tax are premised upon the notion that the
Commerce Clause is an exclusive grant of power to Con
gress over certain subject areas.1 Cooley, supra, at 319–
320 (holding that “[w]hatever subjects of this [Commerce
Clause] power are in their nature national, or admit only
of one uniform system, or plan of regulation, may justly be
said to be of such a nature as to require exclusive legisla
tion by [C]ongress” but holding that “the nature of th[e]
——————
1 This
justification for the negative Commerce Clause is itself unsup
ported by the Constitution. See Tyler Pipe Industries, Inc. v. Washing
ton State Dept. of Revenue, 483 U. S. 232, 261–262 (1987) (SCALIA, J.,
concurring in part and dissenting in part).
 Cite as: 550 U. S. ____ (2007) 3

THOMAS, J., concurring in judgment

subject [of state pilotage laws] is not such as to require its
exclusive legislation” and therefore upholding the state
laws against the negative Commerce Clause challenge);
State Freight Tax, supra, at 279–280 (applying the same
rationale). The Court, however, no longer limits Congress’
power by analyzing whether the subjects of state regula
tion “admit only of one uniform system,” Cooley, supra, at
319. Rather, the modern jurisprudence focuses upon the
way in which States regulate those subjects to decide
whether the regulation is permissible. E.g., ante, at 6, 13.
Because the reasoning of Cooley and State Freight Tax has
been rejected entirely, they provide no foundation for
today’s decision.
Unfazed, the Court proceeds to analyze whether the
ordinances “discriminat[e] on [their] face against inter
state commerce.” Ante, at 6. Again, none of the cases the
Court cites explains how the absence or presence of dis
crimination is relevant to deciding whether the ordinances
are constitutionally permissible, and at least one case
affirmatively admits that the nondiscrimination rule has
no basis in the Constitution. Philadelphia v. New Jersey,
437 U. S. 617, 623 (1978) (“The bounds of these restraints
appear nowhere in the words of the Commerce Clause, but
have emerged gradually in the decisions of this Court
giving effect to its basic purpose”). Thus cloaked in the
“purpose” of the Commerce Clause, the rule against dis
crimination that the Court applies to decide this case
exists untethered from the written Constitution. The rule
instead depends upon the policy preferences of a majority
of this Court.
The Court’s policy preferences are an unsuitable basis
for constitutional doctrine because they shift over time, as
demonstrated by the different theories the Court has
offered to support the nondiscrimination principle. In the
early years of the nondiscrimination rule, the Court struck
down a state health law because “the enactment of a
4 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

THOMAS, J., concurring in judgment

similar statute by each one of the States composing the
Union would result in the destruction of commerce among
the several States.” Minnesota v. Barber, 136 U. S. 313,
321 (1890); see Foster-Fountain Packing Co. v. Haydel,
278 U. S. 1, 13 (1928) (stating that a Commerce Clause
violation would occur if the state statute would “directly
. . . obstruct and burden interstate commerce”). More
recently, the Court has struck down state laws sometimes
based on its preference for national unity, see, e.g., Ameri
can Trucking Assns., Inc. v. Michigan Pub. Serv. Comm’n,
545 U. S. 429, 433 (2005) (justifying the nondiscrimination
rule by stating that “[o]ur Constitution was framed upon
the theory that the peoples of the several states must sink
or swim together” (internal quotation marks omitted)),
and other times on the basis of antiprotectionist senti
ment, see, e.g., Oregon Waste Systems, Inc. v. Department
of Environmental Quality of Ore., 511 U. S. 93, 98 (1994)
(noting the interest in “avoid[ing] the tendencies toward
economic Balkanization”); New Energy Co. of Ind. v. Lim
bach, 486 U. S. 269, 273 (1988) (stating that the negative
Commerce Clause “prohibits economic protectionism—that
is, regulatory measures designed to benefit in-state eco
nomic interests by burdening out-of-state competitors”);
see also Carbone, 511 U. S., at 390 (“The central rationale
for the rule against discrimination is to prohibit state or
municipal laws whose object is local economic protection
ism, laws that would excite those jealousies and retalia
tory measures the Constitution was designed to prevent”);
Toomer v. Witsell, 334 U. S. 385, 403–404 (1948) (striking
down a law that “impose[d] an artificial rigidity on the
economic pattern of the industry”).
Many of the above-cited cases (and today’s majority and
dissent) rest on the erroneous assumption that the Court
must choose between economic protectionism and the free
market. But the Constitution vests that fundamentally
legislative choice in Congress. To the extent that Con
 Cite as: 550 U. S. ____ (2007) 5

THOMAS, J., concurring in judgment

gress does not exercise its authority to make that choice,
the Constitution does not limit the States’ power to regu
late commerce. In the face of congressional silence, the
States are free to set the balance between protectionism
and the free market. Instead of accepting this constitu
tional reality, the Court’s negative Commerce Clause
jurisprudence gives nine Justices of this Court the power
to decide the appropriate balance.
II
As the foregoing demonstrates, despite more than 100
years of negative Commerce Clause doctrine, there is no
principled way to decide this case under current law.
Notably, the Court cannot and does not consider this case
“[i]n light of the language of the Constitution and the
historical context.” Alden v. Maine, 527 U. S. 706, 743
(1999). Likewise, it cannot follow “the cardinal rule to
construe provisions in context.” United States v. Balsys,
524 U. S. 666, 673 (1998). And with no text to construe,
the Court cannot take into account the Founders’ “deliber
ate choice of words” or “their natural meaning.” Wright v.
United States, 302 U. S. 583, 588 (1938). Furthermore, as
the debate between the Court’s opinion and the dissent-
ing opinion reveals, no case law applies to the facts of
this case.2
Explaining why the ordinances do not discriminate
against interstate commerce, the Court states that “gov
ernment is vested with the responsibility of protecting the
health, safety, and welfare of its citizens.” Ante, at 10.
According to the Court, a law favoring in-state business
requires rigorous scrutiny because the law “is often the
product of ‘simple economic protectionism.’ ” Ante, at 11.
——————
2 No previous case addresses the question whether the negative
Commerce Clause applies to favoritism of a government entity. I agree
with the Court that C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383
(1994), did not resolve this issue. Ante, at 6–9.
6 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

THOMAS, J., concurring in judgment

A law favoring local government, however, “may be di
rected toward any number of legitimate goals unrelated to
protectionism.” Ibid. This distinction is razor thin: In
contrast to today’s deferential approach (apparently based
on the Court’s trust of local government), the Court has
applied the equivalent of strict scrutiny in other cases
even where it is unchallenged that the state law discrimi
nated in favor of in-state private entities for a legitimate,
nonprotectionist reason. See Barber, supra, at 319 (strik
ing down the State’s inspection law for livestock even
though it did not challenge “[t]he presumption that this
statute was enacted, in good faith, . . . to protect the
health of the people of Minnesota”).
In Carbone, which involved discrimination in favor of
private entities, we did not doubt the good faith of the
municipality in attempting to deal with waste through a
flow-control ordinance. 511 U. S., at 386–389. But we
struck down the ordinance because it did not allow inter
state entities to participate in waste disposal. Id., at 390–
395. The majority distinguishes Carbone by deciding that
favoritism of a government monopoly is less suspect than
government regulation of private entities.3 I see no basis
for drawing such a conclusion, which, if anything, suggests
a policy-driven preference for government monopoly over
privatization. Ante, at 12 (stating that “waste disposal is
both typically and traditionally a local government func
tion” (alteration and internal quotation marks omitted)).
Whatever the reason, the choice is not the Court’s to
make. Like all of the Court’s previous negative Commerce
Clause cases, today’s decision leaves the future of state
and local regulation of commerce to the whim of the Fed
——————
3 The dissent argues that such a preference is unwarranted. Post, at

11 (opinion of Alito, J.) (“I cannot accept the proposition that laws
discriminating in favor of state-owned enterprises are so unlikely to be
the product of economic protectionism that they should be exempt from
the usual dormant Commerce Clause standards”).
 Cite as: 550 U. S. ____ (2007) 7

THOMAS, J., concurring in judgment

eral Judiciary.
III
Despite its acceptance of negative Commerce Clause
jurisprudence, the Court expresses concern about “un
precedented and unbounded interference by the courts
with state and local government.” Ante, at 11. It explains:
“The dormant Commerce Clause is not a roving li
cense for federal courts to decide what activities are
appropriate for state and local government to under
take, and what activities must be the province of pri
vate market competition.
. . . . .
“There is no reason to step in and hand local busi
nesses a victory they could not obtain through the po
litical process.” Ante, at 11, 13.
I agree that the Commerce Clause is not a “roving license”
and that the Court should not deliver to businesses victo
ries that they failed to obtain through the political process.
I differ with the Court because I believe its powerful
rhetoric is completely undermined by the doctrine it
applies.
In this regard, the Court’s analogy to Lochner v. New
York, 198 U. S. 45 (1905), suggests that the Court should
reject the negative Commerce Clause, rather than tweak
it. Ante, at 15. In Lochner the Court located a “right of
free contract” in a constitutional provision that says noth
ing of the sort. 198 U. S., at 57. The Court’s negative
Commerce Clause jurisprudence, created from whole cloth,
is just as illegitimate as the “right” it vindicated in
Lochner. Yet today’s decision does not repudiate that
doctrinal error. Rather, it further propagates the error by
narrowing the negative Commerce Clause for policy rea
sons—reasons that later majorities of this Court may find
to be entirely illegitimate.
8 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

THOMAS, J., concurring in judgment

In so doing, the majority revisits familiar territory: Just
three years after Lochner, the Court narrowed the right of
contract for policy reasons but did not overrule Lochner.
Muller v. Oregon, 208 U. S. 412, 422–423 (1908) (uphold
ing a maximum-hours requirement for women because the
difference between the “two sexes” “justifies a difference in
legislation”). Like the Muller Court, today’s majority
trifles with an unsound and illegitimate jurisprudence yet
fails to abandon it.
Because I believe that the power to regulate interstate
commerce is a power given to Congress and not the Court,
I concur in the judgment of the Court.
 Cite as: 550 U. S. ____ (2007) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1345
_________________

UNITED HAULERS ASSOCIATION, INC., ET AL.,

PETITIONERS v. ONEIDA-HERKIMER SOLID

WASTE MANAGEMENT AUTHORITY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[April 30, 2007]

JUSTICE ALITO, with whom JUSTICE STEVENS and
JUSTICE KENNEDY join, dissenting.
In C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383
(1994), we held that “a so-called flow control ordinance,
which require[d] all solid waste to be processed at a desig
nated transfer station before leaving the municipality,”
discriminated against interstate commerce and was inva
lid under the Commerce Clause because it “depriv[ed]
competitors, including out-of-state firms, of access to a
local market.” Id., at 386. Because the provisions chal
lenged in this case are essentially identical to the ordi
nance invalidated in Carbone, I respectfully dissent.
I
This Court has “interpreted the Commerce Clause to
invalidate local laws that impose commercial barriers or
discriminate against an article of commerce by reason of
its origin or destination out of State.” Id., at 390. As the
Court acknowledges, a law “ ‘ “discriminat[es]” ’ ” in this
context if it mandates “ ‘differential treatment of in-state
and out-of-state economic interests’ ” in a way “ ‘that bene
fits the former and burdens the latter.’ ” Ante, at 6 (quot
ing Oregon Waste Systems, Inc. v. Department of Envi
ronmental Quality of Ore., 511 U. S. 93, 99 (1994)). A local
2 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

SOLID WASTE MANAGEMENT AUTHORITY

ALITO, J., dissenting

law that discriminates against interstate commerce is
sustainable only if it serves a legitimate local purpose that
could not be served as well by nondiscriminatory means.
Maine v. Taylor, 477 U. S. 131 (1986).
“Solid waste, even if it has no value, is an article of
commerce.” Fort Gratiot Sanitary Landfill, Inc. v. Michi
gan Dept. of Natural Resources, 504 U. S. 353, 359 (1992).
Accordingly, laws that “discriminate against [trash] by
reason of its origin or destination out of State,” Carbone,
511 U. S., at 390, are sustainable only if they serve a
legitimate local purpose that could not be served as well
by nondiscriminatory means.
In Carbone, this Court invalidated a local ordinance
requiring all nonhazardous solid waste in Clarkstown,
New York, to be deposited at a specific local transfer facil
ity. The Court concluded that the ordinance discriminated
against interstate commerce because it “hoard[ed] solid
waste, and the demand to get rid of it, for the benefit of
the preferred processing facility.” Id., at 392.
The Court explained that the flow-control ordinance did
serve a purpose that a nonprotectionist regulation would
not: “It ensures that the town-sponsored facility will be
profitable, so that the local contractor can build it and
Clarkstown can buy it back at nominal cost in five years.”
Id., at 393. “In other words . . . the flow control ordinance
is a financing measure.” Ibid. The Court concluded,
however, that “revenue generation is not a local interest
that can justify discrimination against interstate com
merce.” Ibid.
The Court also held that “Clarkstown has any number
of nondiscriminatory alternatives for addressing the
health and environmental problems alleged to justify the
ordinance”—including “uniform safety regulations” that
could be enacted to “ensure that competitors . . . do not
underprice the market by cutting corners on environ
mental safety.” Ibid. Thus, the Court invalidated the
 Cite as: 550 U. S. ____ (2007) 3

ALITO, J., dissenting

ordinance because any legitimate local interests served by
the ordinance could be accomplished through nondiscrimi
natory means. See id., at 392–393.
This case cannot be meaningfully distinguished from
Carbone. As the Court itself acknowledges, “[t]he only
salient difference” between the cases is that the ordinance
invalidated in Carbone discriminated in favor of a pri
vately owned facility, whereas the laws at issue here
discriminate in favor of “facilities owned and operated by a
state-created public benefit corporation.” Ante, at 1. The
Court relies on the distinction between public and private
ownership to uphold the flow-control laws, even though a
straightforward application of Carbone would lead to the
opposite result. See ante, at 10–12. The public-private
distinction drawn by the Court is both illusory and with
out precedent.
II
The fact that the flow control laws at issue discriminate
in favor of a government-owned enterprise does not mean
ingfully distinguish this case from Carbone. The preferred
facility in Carbone was, to be sure, nominally owned by a
private contractor who had built the facility on the town’s
behalf, but it would be misleading to describe the facility
as private. In exchange for the contractor’s promise to
build the facility for the town free of charge and then to
sell it to the town five years later for $1, the town guaran
teed that, during the first five years of the facility’s exis
tence, the contractor would receive “a minimum waste
flow of 120,000 tons per year” and that the contractor
could charge an above-market tipping fee. 511 U. S., at
387. If the facility “received less than 120,000 tons in a
year, the town [would] make up the tipping fee deficit.”
Ibid. To prevent residents, businesses, and trash haulers
from taking their waste elsewhere in pursuit of lower
tipping fees (leaving the town responsible for covering any
4 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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ALITO, J., dissenting

shortfall in the contractor’s guaranteed revenue stream),
the town enacted an ordinance “requir[ing] all nonhazard
ous solid waste within the town to be deposited at” the
preferred facility. Ibid.
This Court observed that “[t]he object of this arrange
ment was to amortize the cost of the transfer station: The
town would finance its new facility with the income gener
ated by the tipping fees.” Ibid. (emphasis added). “In
other words,” the Court explained, “the flow control ordi
nance [wa]s a financing measure,” id., at 393, for what
everyone—including the Court—regarded as the town’s
new transfer station.
The only real difference between the facility at issue in
Carbone and its counterpart in this case is that title to the
former had not yet formally passed to the municipality.
The Court exalts form over substance in adopting a test
that turns on this technical distinction, particularly since,
barring any obstacle presented by state law, the transac
tion in Carbone could have been restructured to provide
for the passage of title at the beginning, rather than the
end, of the 5-year period.
For this very reason, it is not surprising that in Carbone
the Court did not dispute the dissent’s observation that
the preferred facility was for all practical purposes owned
by the municipality. See id., at 419 (opinion of
SOUTER, J.) (“Clarkstown’s transfer station is essentially a
municipal facility”); id., at 416 (describing the nominal
“proprietor” of the transfer station as “essentially an agent
of the municipal government”). To the contrary, the Court
repeatedly referred to the transfer station in terms sug
gesting that the transfer station did in fact belong to the
town. See id., at 387 (explaining that “[t]he town would
finance its new facility with the income generated by the
tipping fees” (emphasis added)); id., at 393 (observing that
the challenged flow-control ordinance was designed to
“ensur[e] that the town-sponsored facility will be profit
 Cite as: 550 U. S. ____ (2007) 5

ALITO, J., dissenting

able”); id., at 394 (concluding that, “having elected to use
the open market to earn revenues for its project, the town
may not employ discriminatory regulation to give that
project an advantage over rival businesses from out of
State” (emphasis added)).
Today the Court dismisses those statements as “at best
inconclusive.” Ante, at 8, n. 3. The Court, however, fails
to offer any explanation as to what other meaning could
possibly attach to Carbone’s repeated references to Clark
stown’s transfer station as a municipal facility. It also
ignores the fact that the ordinance itself, which was in
cluded in its entirety in an appendix to the Court’s opin
ion, repeatedly referred to the station as “the Town of
Clarkstown solid waste facility.” 511 U. S., at 396, 398,
399. The Court likewise fails to acknowledge that the
parties in Carbone openly acknowledged the municipal
character of the transfer station. See Pet. for Cert., O. T.
1993, No. 92–1402, p. 5 (“The town’s designated trash
disposal facility is operated by a private contractor, under
an agreement with the town” (emphasis added)); Brief for
Petitioner, O. T. 1993, No. 92–1402, p. 26 (arguing that “it
is clear that the purported safety and health benefits of
[the flow control ordinance] derive simply from the contin
ued economic viability of the town’s waste facility” (em
phasis added; internal quotation marks omitted)); Brief for
Respondent, O. T. 1993, No. 92–1402, p. 8 (“The Town
entered into a contract with Clarkstown Recycling, Inc.,
which provided for that firm to build and operate the new
Town facility” (emphasis added)).
I see no ambiguities in those statements, much less any
reason to dismiss them as “at best inconclusive”; they
reflect a clear understanding that the station was, for all
purposes relevant to the dormant Commerce Clause, a
municipal facility.
6 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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ALITO, J., dissenting

III
In any event, we have never treated discriminatory
legislation with greater deference simply because the
entity favored by that legislation was a government-owned
enterprise. In suggesting otherwise, the Court relies un
duly on Carbone’s passing observation that “ ‘offending
local laws hoard a local resource—be it meat, shrimp, or
milk—for the benefit of local businesses.’ ” Ante, at 9
(emphasis in original). Carbone’s use of the word “busi
nesses,” the Court insists, somehow reveals that Carbone
was not “extending” our dormant Commerce Clause juris
prudence “to cover discrimination in favor of local govern
ment.” Ibid.
But no “exten[sion]” was required. The Court has long
subjected discriminatory legislation to strict scrutiny, and
has never, until today, recognized an exception for dis
crimination in favor of a state-owned entity.
A
This Court long ago recognized that the Commerce
Clause can be violated by a law that discriminates in favor
of a state-owned monopoly. In the 1890’s, South Carolina
enacted laws giving a state agency the exclusive right to
operate facilities selling alcoholic beverages within that
State, and these laws were challenged under the Com
merce Clause in Scott v. Donald, 165 U. S. 58 (1897), and
Vance v. W. A. Vandercook Co., 170 U. S. 438 (1898). The
Court held that the Commerce Clause barred the State
from prohibiting its residents from purchasing alcohol
from out-of-state vendors, see id., at 442, but that the
State could surmount this problem by allowing residents
to receive out-of-state shipments for their personal use.
See id., at 452. The Court’s holding was based on the
same fundamental dormant Commerce Clause principle
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ALITO, J., dissenting

applied in Carbone.1 As the Court put it in Vance, a State
“ ‘cannot discriminate against the bringing of [lawful]
articles in and importing them from other States’ ” because
such discrimination is “ ‘a hindrance to interstate com
merce and an unjust preference of the products of the
enacting State as against similar products of other
States.’ ” 170 U. S., at 443 (quoting Scott, supra, at 101).
Cf., Carbone, supra, at 390 (the Commerce Clause bars
state and local laws that “impose commercial barriers or
discriminate against an article of commerce by reason of
its origin or destination out of State”).
Thus, were it not for the Twenty-first Amendment, laws
creating state-owned liquor monopolies—which many
States maintain today—would be deemed discriminatory
under the dormant Commerce Clause. See Granholm v.
Heald, 544 U. S. 460, 489 (2005) (explaining that the
Twenty-first Amendment makes it possible for States to
“assume direct control of liquor distribution through state-
run outlets”); see id., at 517–518 (THOMAS, J., dissenting)
(noting that, although laws creating a “state monopoly” in
the sale of liquor “discriminat[e]” against interstate com
merce, they are “within the ambit of the Twenty-first
Amendment” and are therefore immune from scrutiny
under the dormant Commerce Clause). There is, of course,
no comparable provision in the Constitution authorizing
States to discriminate against out-of-state providers of
waste processing and disposal services, either by means of
a government-owned monopoly or otherwise.

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

dissenting) (“These liquor regulation schemes discriminated against
out-of-state economic interests . . . . State monopolies that did not
permit direct shipments to consumers, for example, were thought to
discriminate against out-of-state wholesalers and retailers . . .” (citing
Vance, 170 U. S., at 451–452)).
8 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER

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ALITO, J., dissenting

B
Nor has this Court ever suggested that discriminatory
legislation favoring a state-owned enterprise is entitled to
favorable treatment. To be sure, state-owned entities are
accorded special status under the market-participant
doctrine. But that doctrine is not applicable here.
Under the market-participant doctrine, a State is per
mitted to exercise “ ‘independent discretion as to parties
with whom [it] will deal.’ ” Reeves, Inc. v. Stake, 447 U. S.
429, 438–439 (1980). The doctrine thus allows States to
engage in certain otherwise-discriminatory practices (e.g.,
selling exclusively to, or buying exclusively from, the
State’s own residents), so long as the State is “acting as a
market participant, rather than as a market regulator,”
South-Central Timber Development, Inc. v. Wunnicke, 467
U. S. 82, 93 (1984) (emphasis added).
Respondents are doing exactly what the market-
participant doctrine says they cannot: While acting as
market participants by operating a fee-for-service business
enterprise in an area in which there is an established
interstate market, respondents are also regulating that
market in a discriminatory manner and claiming that
their special governmental status somehow insulates them
from a dormant Commerce Clause challenge. See ibid.
Respondents insist that the market-participant doctrine
has no application here because they are not asserting a
defense under the market-participant doctrine, Brief for
Respondents 24–25, but that argument misses the point.
Regardless of whether respondents can assert a defense
under the market-participant doctrine, this Court’s cases
make clear that States cannot discriminate against inter
state commerce unless they are acting solely as market
participants. Today, however, the Court suggests, con
trary to its prior holdings, that States can discriminate in
favor of in-state interests while acting both as a market
participant and as a market regulator.
 Cite as: 550 U. S. ____ (2007) 9

ALITO, J., dissenting

IV
Despite precedent condemning discrimination in favor of
government-owned enterprises, the Court attempts to
develop a logical justification for the rule it creates today.
That justification rests on three principal assertions.
First, the Court insists that it simply “does not make
sense to regard laws favoring local government and laws
favoring private industry with equal skepticism,” because
the latter are “often the product of ‘simple economic pro
tectionism,’ ” ante, at 10–11 (quoting Wyoming v. Okla
homa, 502 U. S. 437, 454 (1992)), while the former “may
be directed toward any number of legitimate goals unre
lated to protectionism,” ante, at 11. Second, the Court
reasons that deference to legislation discriminating in
favor of a municipal landfill is especially appropriate
considering that “ ‘[w]aste disposal is both typically and
traditionally a local government function.’ ” Ante, at 12
(quoting 261 F. 3d 245, 264 (CA2 2001) (Calabresi, J.,
concurring)). Third, the Court suggests that respondents’
flow-control laws are not discriminatory because they
“treat in-state private business interests exactly the same
as out-of-state ones.” Ante, at 13. I find each of these
arguments unpersuasive.
A
I see no basis for the Court’s assumption that discrimi
nation in favor of an in-state facility owned by the gov
ernment is likely to serve “legitimate goals unrelated to
protectionism.” Discrimination in favor of an in-state
government facility serves “ ‘local economic interests,’ ”
Carbone, 511 U. S., at 404 (O’Connor, J., concurring in
judgment) (quoting Raymond Motor Transp., Inc. v. Rice,
434 U. S. 429, 444, n. 18 (1978)), inuring to the benefit of
local residents who are employed at the facility, local
businesses that supply the facility with goods and ser
vices, and local workers employed by such businesses. It
10 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
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ALITO, J., dissenting

is therefore surprising to read in the opinion of the Court
that state discrimination in favor of a state-owned
business is not likely to be motivated by economic
protectionism.
Experience in other countries, where state ownership is
more common than it is in this country, teaches that
governments often discriminate in favor of state-owned
businesses (by shielding them from international competi
tion) precisely for the purpose of protecting those who
derive economic benefits from those businesses, including
their employees.2 Such discrimination amounts to eco
nomic protectionism in any realistic sense of the term.3
By the same token, discrimination in favor of an in
state, privately owned facility may serve legitimate ends,
such as the promotion of public health and safety. For
example, a State might enact legislation discriminating in
favor of produce or livestock grown within the State, rea
soning that the State’s inspectors can more easily monitor
the use of pesticides, fertilizers, and feed on farms within
the State’s borders. Such legislation would almost cer
tainly be unconstitutional, notwithstanding its potential to
promote public health and safety. See Philadelphia v.
——————
2 See, e.g., Owen, Sun, & Zheng, Antitrust in China: The Problem of

Incentive Compatibility, 1 J. of Competition L. & Econ. 123, 131–133
(2005); Qin, WTO Regulation of Subsidies to State-owned Enterprises
(SOEs)—A Critical Appraisal of the China Accession Protocol, 7 J. of
Int’l Econ. L. 863, 869–876 (Dec. 2004).
3 It therefore seems strange that the Commerce Clause, which has

historically been understood to protect free trade and prohibit States
from “plac[ing] [themselves] in a position of economic isolation,” Bald
win v. G. A. F. Seelig, Inc., 294 U. S. 511, 527 (1935), is now being
construed to condone blatantly protectionist laws on grounds that such
legislation is necessary to support governmental efforts to commandeer
the local market for a particular good or service. In adopting that
construction, the Court sends a bold and enticing message to local
governments throughout the United States: Protectionist legislation is
now permissible, so long as the enacting government excludes all
private-sector participants from the affected local market.
 Cite as: 550 U. S. ____ (2007) 11

ALITO, J., dissenting

New Jersey, 437 U. S. 617, 627 (1978) (noting that the
Court has repeatedly invalidated legislation where “a
presumably legitimate goal was sought to be achieved by
the illegitimate means of isolating the State from the
national economy”).
The fallacy in the Court’s approach can be illustrated by
comparing a law that discriminates in favor of an in-state
facility, owned by a corporation whose shares are publicly
held, and a law discriminating in favor of an otherwise
identical facility that is owned by the State or municipal
ity. Those who are favored and disfavored by these two
laws are essentially the same with one major exception:
The law favoring the corporate facility presumably bene
fits the corporation’s shareholders, most of whom are
probably not local residents, whereas the law favoring the
government-owned facility presumably benefits the people
of the enacting State or municipality. I cannot understand
why only the former law, and not the latter, should be
regarded as a tool of economic protectionism. Nor do I
think it is realistic or consistent with our precedents to
condemn some discriminatory laws as protectionist while
upholding other, equally discriminatory laws as lawful
measures designed to serve legitimate local interests
unrelated to protectionism.
For these reasons, I cannot accept the proposition that
laws discriminating in favor of state-owned enterprises
are so unlikely to be the product of economic protectionism
that they should be exempt from the usual dormant Com
merce Clause standards.
Proper analysis under the dormant Commerce Clause
involves more than an inquiry into whether the challenged
Act is in some sense “directed toward . . . legitimate goals
unrelated to protectionism”; equally important are the
means by which those goals are realized. If the chosen
means take the form of a statute that discriminates
against interstate commerce—“ ‘either on its face or in
12 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
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ALITO, J., dissenting

practical effect’ ”—then “the burden falls on [the enacting
government] to demonstrate both that the statute ‘serves
a legitimate local purpose,’ and that this purpose could not
be served as well by available nondiscriminatory means.”
Taylor, 477 U. S., at 138 (quoting Hughes v. Oklahoma,
441 U. S. 322, 336 (1979)).
Thus, if the legislative means are themselves discrimi
natory, then regardless of how legitimate and nonprotec
tionist the underlying legislative goals may be, the legisla
tion is subject to strict scrutiny. Similarly, the fact that a
discriminatory law “may [in some sense] be directed to
ward any number of legitimate goals unrelated to protec
tionism” does not make the law nondiscriminatory. The
existence of such goals is relevant, not to whether the law
is discriminatory, but to whether the law can be allowed to
stand even though it discriminates against interstate
commerce. And even then, the existence of legitimate
goals is not enough; discriminatory legislation can be
upheld only where such goals cannot adequately be
achieved through nondiscriminatory means. See, e.g.,
Philadelphia, supra, at 626–627 (“[T]he evil of protection
ism can reside in legislative means as well as legislative
ends,” such that “whatever [the State’s] purpose, it may
not be accomplished by discriminating against articles of
commerce coming from outside the State unless there is
some reason, apart from their origin, to treat them differ
ently”); Hunt v. Washington State Apple Advertising
Comm’n, 432 U. S. 333, 352–353 (1977) (explaining that
“we need not ascribe an economic protection motive to”
discriminatory laws; such laws are subject to strict scru
tiny even “if enacted for the declared purpose of protecting
consumers from deception and fraud in the marketplace”).
Dean Milk Co. v. Madison, 340 U. S. 349 (1951), is
instructive on this point. That case involved a dormant
Commerce Clause challenge to an ordinance requiring all
milk sold in Madison, Wisconsin, to be processed within
 Cite as: 550 U. S. ____ (2007) 13

ALITO, J., dissenting

five miles of the city’s central square. See id., at 350. The
ordinance “professe[d] to be a health measure,” id., at 354,
and may have conferred some benefit on the city and its
residents to the extent that it succeeded in guaranteeing
the purity and quality of the milk sold in the city. The
Court nevertheless invalidated the ordinance, concluding
that any public health benefits it may have conferred
could be achieved through “reasonable nondiscriminatory
alternatives,” including a system that would allow a
nonlocal dairy to qualify to sell milk in the city upon prov
ing that it was in compliance with applicable health and
safety requirements. Id., at 354–356.
The Court did not inquire whether the real purpose of
the ordinance was to benefit public health and safety or to
protect local economic interests; nor did the Court make
any effort to determine whether or to what extent the
ordinance may have succeeded in promoting health and
safety. In fact, the Court apparently assumed that the
ordinance could fairly be characterized as “a health meas
ure.” Id., at 354. The Court nevertheless concluded that
the ordinance could not stand because it “erect[ed] an
economic barrier protecting a major local industry against
competition from without the State,” “plac[ed] a discrimi
natory burden on interstate commerce,” and was “not
essential for the protection of local health interests.” Id.,
at 354, 356.
The overarching concern expressed by the Court was
that the ordinance, if left intact, “would invite a multipli
cation of preferential trade areas destructive of the very
purpose of the Commerce Clause.” Id., at 356. “Under the
circumstances here presented,” the Court concluded, “the
regulation must yield to the principle that ‘one state in its
dealings with another may not place itself in a position of
economic isolation.’ ” Ibid. (quoting Baldwin v. G. A. F.
Seelig, Inc., 294 U. S. 511, 527 (1935)).
The same reasoning dooms the laws challenged here.
14 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
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ALITO, J., dissenting

Like the ordinance in Dean Milk, these laws discriminate
against interstate commerce (generally favoring local
interests over nonlocal interests), but are defended on the
ground that they serve legitimate goals unrelated to pro
tectionism (e.g., health, safety, and protection of the envi
ronment). And while I do not question that the laws at
issue in this case serve legitimate goals, the laws offend
the dormant Commerce Clause because those goals could
be attained effectively through nondiscriminatory means.
Indeed, no less than in Carbone, those goals could be
achieved through “uniform [health and] safety regulations
enacted without the object to discriminate” that “would
ensure that competitors [to the municipal program] do not
underprice the market by cutting corners on environ
mental safety.” 511 U. S., at 393. Respondents would also
be free, of course, to “subsidize the[ir] [program] through
general taxes or municipal bonds.” Id., at 394. “But hav
ing elected to use the open market to earn revenues for”
their waste management program, respondents “may not
employ discriminatory regulation to give that [program]
an advantage over rival businesses from out of State.”
Ibid.
B
The Court next suggests that deference to legislation
discriminating in favor of a municipal landfill is especially
appropriate considering that “ ‘[w]aste disposal is both
typically and traditionally a local government function.’ ”
Ante, at 12 (quoting 261 F. 3d, at 264 (Calabresi, J., con
curring)). I disagree on two grounds.
First, this Court has previously recognized that any
standard “that turns on a judicial appraisal of whether a
particular governmental function is ‘integral’ or ‘tradi
tional’ ” is “ ‘unsound in principle and unworkable in prac
tice.’ ” Garcia v. San Antonio Metropolitan Transit Au
thority, 469 U. S. 528, 546–547 (1985). Indeed, the Court
 Cite as: 550 U. S. ____ (2007) 15

ALITO, J., dissenting

has twice experimented with such standards—first in the
context of intergovernmental tax immunity, see South
Carolina v. United States, 199 U. S. 437 (1905), and more
recently in the context of state regulatory immunity under
the Commerce Clause, see National League of Cities v.
Usery, 426 U. S. 833 (1976)—only to abandon them later
as analytically unsound. See Garcia, supra, at 547 (over
ruling National League of Cities); New York v. United
States, 326 U. S. 572 (1946) (overruling South Carolina v.
United States). Thus, to the extent today’s holding rests
on a distinction between “traditional” governmental func
tions and their nontraditional counterparts, see ante, at
11, it cannot be reconciled with prior precedent.
Second, although many municipalities in this country
have long assumed responsibility for disposing of local
garbage, see Carbone, supra, at 419–420, and n. 10
(SOUTER, J., dissenting), most of the garbage produced in
this country is still managed by the private sector. See
Brief for National Solid Wastes Management Association
et al. as Amici Curiae 22 (“Today, nearly two-thirds of
solid waste received at landfills is received at private
sector landfills”); R. W. Beck, Inc. et al., Size of the United
States Solid Waste Industry, p. ES–3 (Apr. 2001) (study
sponsored by the Environmental Research and Education
Foundation) (noting that in 1999, 69.2% of the solid waste
produced in the United States was managed by privately
owned businesses). In that respect, the Court is simply
mistaken in concluding that waste disposal is “typically” a
local government function.
Moreover, especially considering the Court’s recognition
that “ ‘any notion of discrimination assumes a comparison
of substantially similar entities,’ ” ante, at 10 (quoting
General Motors Corp. v. Tracy, 519 U. S. 278, 298 (1997)),
a “traditional” municipal landfill is for present purposes
entirely different from a monopolistic landfill supported by
the kind of discriminatory legislation at issue in this case
16 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
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ALITO, J., dissenting

and in Carbone. While the former may be rooted in his
tory and tradition, the latter has been deemed unconstitu
tional until today. See Carbone, supra, at 392–393. It is
therefore far from clear that the laws at issue here can
fairly be described as serving a function “typically and
traditionally” performed by local governments.
C
Equally unpersuasive is the Court’s suggestion that the
flow-control laws do not discriminate against interstate
commerce because they “treat in-state private business
interests exactly the same as out-of-state ones.” Ante, at
13. Again, the critical issue is whether the challenged
legislation discriminates against interstate commerce. If
it does, then regardless of whether those harmed by it
reside entirely outside the State in question, the law is
subject to strict scrutiny. Indeed, this Court has long
recognized that “ ‘a burden imposed by a State upon inter
state commerce is not to be sustained simply because the
statute imposing it applies alike to the people of all the
States, including the people of the State enacting such
statute.’ ” Brimmer v. Rebman, 138 U. S. 78, 83 (1891)
(quoting Minnesota v. Barber, 136 U. S. 313, 326 (1890));
accord, Fort Gratiot Sanitary Landfill, Inc., 504 U. S., at
361–363; Dean Milk, 340 U. S., at 354, n. 4. It therefore
makes no difference that the flow-control laws at issue
here apply to in-state and out-of-state businesses alike.4
See Carbone, supra, at 391 (“The [flow-control] ordinance
is no less discriminatory because in-state or in-town proc

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

would not be immune from a dormant Commerce Clause challenge
simply because it excluded both in-state and out-of-state competitors
from the local market. See C & A Carbone, Inc. v. Clarkstown, 511
U. S. 383, 391 (1994). It is therefore strange for the Court to attach any
significance to the fact that the flow-control laws at issue here apply to
in-state and out-of-state competitors alike.
 Cite as: 550 U. S. ____ (2007) 17

ALITO, J., dissenting

essors are also covered by the prohibition”).
* * *
The dormant Commerce Clause has long been under
stood to prohibit the kind of discriminatory legislation
upheld by the Court in this case. I would therefore re
verse the decision of the Court of Appeals.