UNITED HAULERS ASSOCIATION, INC., et al. v. ONEIDA-HERKIMER SOLID WASTE MANAGE- MENT AUTHORITY et al.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
330 OCTOBER TERM, 2006
Syllabus
UNITED HAULERS ASSOCIATION, INC., et al. v.
ONEIDA-HERKIMER SOLID WASTE MANAGE-
MENT 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 Coun
ties requested and the State created respondent Authority. The Coun
ties 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, including 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 violate the
Commerce Clause by discriminating against interstate commerce.
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 rejected 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 commerce. Reversing, the Sec
ond Circuit held that Carbone and other of this Court’s so-called “dor
mant” Commerce Clause precedents allow for a distinction between
laws that benefit public, as opposed to private, facilities.
Held: The judgments are 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 con
trol ordinances, which treat in-state private business interests exactly

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
331 Cite as: 550 U. S. 330 (2007)
Syllabus
the same as out-of-state ones, do not discriminate against interstate
commerce. Pp. 338–345.
(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’ simply means
differential treatment of in-state and out-of-state economic interests
that benefits the former and burdens the latter.” Oregon Waste Sys
tems, Inc. v. Department of Environmental Quality of Ore., 511 U. S.
93, 99. Discriminatory laws motivated by “simple economic protection
ism” 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 legitimate local pur
pose, Maine v. Taylor, 477 U. S. 131, 138. Pp. 338–339.
(b) Carbone does not control this case. Carbone involved a flow con
trol 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 pri
vate transfer station was “essentially a municipal facility,” id., at 419,
and that this distinction should have saved the ordinance because favor
ing local government is different from favoring a particular private com
pany. The majority’s failure to comment on the public-private distinc
tion does not prove, as the haulers’ contend, 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, Car
bone cannot be regarded as having decided the public-private question.
Pp. 339–341.
(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 businesses over their
competitors. “[A]ny notion of discrimination assumes 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 citizens set it apart from a typical pri

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
332 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Syllabus
vate business, cf. id., at 313. Moreover, 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 protec
tionism. 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 pub
lic 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 entire 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 office
of the Commerce Clause to control the voters’ decision in this regard.
The Court is particularly hesitant to interfere here because waste dis
posal is typically and traditionally a function of local government ex
ercising 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 regulation 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 Counties’ citizens. There is no rea
son to step in and hand local businesses a victory they could not obtain
through the political process. Pp. 342–345.
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,
post, p. 348. Thomas, J., filed an opinion concurring in the judgment,
post, p. 349. Alito, J., filed a dissenting opinion, in which Stevens and
Kennedy, JJ., joined, post, p. 356.
Evan M. Tager argued the cause for petitioners. With
him on the briefs was Miriam R. Nemetz.
Michael J. Cahill argued the cause for respondents. With
him on the brief were Judy Drabicki, Peter M. Rayhill,
Bruce S. Rogow, Richard A. Frye, and Thomas E. Kelly.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
333 Cite as: 550 U. S. 330 (2007)
Counsel
Caitlin J. Halligan, Solicitor General of New York, argued
the cause for the State of New York et al. as amici curiae
urging affirmance. With her on the brief were Eliot
Spitzer, former Attorney General, Daniel Smirlock, Deputy
Solicitor General, Benjamin N. Gutman, Assistant Solicitor
General, John J. Sipos, Assistant Attorney General, Karen
King Mitchell, Deputy Attorney General of Missouri, and the
Attorneys General and former Attorneys General for their
respective States as follows: Mike Beebe of Arkansas, Bill
Lockyer of California, Richard Blumenthal of Connecticut,
Carl C. Danberg of Delaware, Mark J. Bennett of Hawaii,
Lisa Madigan of Illinois, Tom Miller of Iowa, Gregory D.
Stumbo of Kentucky, G. Steven Rowe of Maine, J. Joseph
Curran, Jr., of Maryland, Michael A. Cox of Michigan, Mike
Hatch of Minnesota, Jim Hood of Mississippi, Mike McGrath
of Montana, George J. Chanos of Nevada, Kelly A. Ayotte
of New Hampshire, Stuart Rabner of New Jersey, Wayne
Stenehjem of North Dakota, Hardy Myers of Oregon, Pat
rick Lynch of Rhode Island, Robert E. Cooper, Jr., of Tennes
see, William H. Sorrell of Vermont, Robert F. McDonnell of
Virginia, and Darrell V. McGraw, Jr., of West Virginia.*
*Briefs of amici curiae urging reversal were filed for Sussex County,
Virginia, et al. by Jonathan S. Franklin; and for the National Solid
Wastes Management Association et al. by David Biderman, Robert Dig
ges, Jan S. Amundson, and Quentin Riegel.
Briefs of amici curiae urging affirmance were filed for Madison County,
New York, by Jeffrey B. Morris; for the Arkansas Association of Regional
Solid Waste Management Districts et al. by Scott M. DuBoff, Michael
F. X. Gillin, Nicholas Nadzo, Samuel G. Weiss, Jr., Mathias H. Heck, Jr.,
Stephen J. Acquario, Michael Rainwater, Moran M. Pope III, Charles H.
Younger, and Larry S. Jenkins; for the Economic Development Growth
Enterprises Corp. et al. by Gregory J. Amoroso; for Environmental De
fense by Michael J. Bean; for the Federation of New York Solid Waste
Associations by Michael D. Diederich, Jr.; for the National Association of
Counties et al. by Richard Ruda and Richard H. Seamon; for the Onon
daga County Resource Recovery Agency et al. by Bruce R. Braun, Gene
C. Schaerr, Steffen N. Johnson, and Geoffrey P. Eaton; for the Rockland
Coalition for Democracy and Freedom et al. by Mr. Diederich; and for the

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
334 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court, except as to Part II–D.
“Flow control” ordinances require trash haulers to deliver
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 con
trol ordinance that forced haulers to deliver waste to a par
ticular private processing facility. In this case, we face flow
control ordinances quite similar to the one invalidated in
Carbone. The only salient difference 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 constitutionally significant. Dispos
ing of trash has been a traditional 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 in
terstate commerce for purposes of the Commerce Clause.
Applying the Commerce Clause test reserved for regulations
that do not discriminate against interstate commerce, we up
hold these ordinances because any incidental burden they
may have on interstate commerce does not outweigh the ben
efits they confer on the citizens of Oneida and Herkimer
Counties.
I
Located in central New York, Oneida and Herkimer Coun
ties 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 disposing of its
own waste. Many had relied on local landfills, 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 Respond-
Rockland County Solid Waste Management Authority by Robert Bergen,
Teno West, and Bridget Gauntlett.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
335 Cite as: 550 U. S. 330 (2007)
Opinion of the Court
ents 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 environmental
problems culminated in a federal cleanup action against a
landfill in Oneida County; the defendants 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 example,
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. Auth. Law Ann.
§ 2049–aa et seq. (West 1995). The Authority 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 Au
thority 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 dis
posal. To fulfill its part of the bargain, the Authority agreed
to purchase and develop facilities for the processing and

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
336 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Opinion of the Court
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 tipping
fees significantly exceeded those charged for waste removal
on the open market, but they allowed the Authority to do
more than the average private waste disposer. In addition
to landfill transportation and solid waste disposal, 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 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 facilities 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 Au
thority’s processing sites.2 Private haulers must obtain a
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.
2 Oneida’s flow control ordinance provides in part:
“From the time of placement of solid waste and of recyclables at the road
side 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 responsible for disposition des
ignated by the County or by the Authority pursuant 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 collec

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
337 Cite as: 550 U. S. 330 (2007)
Opinion of the Court
permit from the Authority to collect waste in the Counties.
Penalties for noncompliance with the ordinances include per
mit revocation, fines, and imprisonment.
Petitioners are United Haulers Association, Inc., a trade
association made up of solid waste management companies,
and six haulers that operated in Oneida and Herkimer Coun
ties when this action was filed. In 1995, they sued the Coun
ties and the Authority under 42 U. S. C. § 1983, alleging that
the flow control laws violate the Commerce Clause by dis
criminating against interstate commerce. They submitted
evidence that without the flow control laws and the associ
ated $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, reason
ing that Carbone and our other dormant Commerce Clause
precedents allow for a distinction between laws that benefit
public as opposed to private facilities. 261 F. 3d 245, 263
(2001). Accordingly, it held that a statute does not discrimi
nate against interstate commerce when it favors local gov
ernment at the expense of all private industry. The court
remanded to let the District Court decide whether the Coun
ties’ ordinances nevertheless placed an incidental burden on
interstate commerce, and if so, whether the ordinances’ bene
fits 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 affirmed, assum
ing that the laws exacted some toll on interstate commerce,
but finding any possible burden “modest” compared to the
tion in accordance herewith, such garbage and recyclable material shall be
delivered to the appropriate facility designated by the Legislature, or by
the Authority pursuant to contract with the County.” Id., at 135a.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
338 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Opinion of the Court
“clear and substantial” benefits of the ordinances. 438 F. 3d
150, 160 (2006). Because the Sixth Circuit had recently is
sued a conflicting decision holding that a flow control ordi
nance 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. 941 (2006).
II
A
The Commerce Clause provides that “Congress shall have
Power . . . [t]o regulate Commerce with foreign Nations, and
among the several States.” U. S. Const., Art. I, § 8, cl. 3.
Although 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 au
thority, 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 “dor
mant” 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 Resources, 504
U. S. 353, 359 (1992). 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 En
vironmental 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 protec
tionism” are subject to a “virtually 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

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
339 Cite as: 550 U. S. 330 (2007)
Opinion of the Court
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’ ordinances
discriminate against interstate commerce under Carbone.
In Carbone, the town of Clarkstown, New York, hired a pri
vate 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 facil
ity for one dollar. The town guaranteed that the facility
would receive a certain volume of trash per year. To make
good on its promise, Clarkstown passed a flow control ordi
nance 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 dis
criminated 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 in
volved laws that discriminated in favor of private entities,
not public ones. Id., at 411 (opinion of Souter, J.). Accord
ing 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 major
ity agreed with the dissent’s characterization of the facility,
but thought there was no difference under the dormant Com
merce Clause between laws favoring private entities and

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
340 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Opinion of the Court
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 favored was not properly
before the Court.3
We believe the latter interpretation of Carbone is correct.
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 dis
tinction.” 261 F. 3d, at 259 (emphasis in original). The
Carbone dissent offered a number of reasons why public enti
ties 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 Car
bone majority definitively rejected these arguments with
out explaining why.
The Carbone majority viewed Clarkstown’s flow control
ordinance as “just one more instance of local processing re
quirements that we long have held invalid.” Id., at 391. It
then cited six local processing cases, every one of which in
volved discrimination in favor of private enterprise.4 The
3 Each side makes much of the Carbone majority’s various descriptions
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 Peti
tioners 20–22. The Counties note that the majority referred to the trans
fer 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 alleg
edly supportive terminology, post, at 359–360 (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 ex

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
341 Cite as: 550 U. S. 330 (2007)
Opinion of the Court
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 ex
tending this line of local processing cases to cover discrimi
nation 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 Clarks
town’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 “conceivable”—it
was conceived, and discussed at length, by three Justices in
dissent. Carbone cannot be regarded as having decided the
public-private question.5
port); Toomer v. Witsell, 334 U. S. 385 (1948) (invalidating South Carolina
statute requiring shrimp fishermen 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 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 367–368—is readily
distinguishable on the same ground.
5 The dissent asserts that the Court “long ago recognized that the Com
merce Clause can be violated by a law that discriminates in favor of a
state-owned monopoly.” Post, at 361. 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 sup

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
342 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
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 differently
from laws favoring particular private businesses over their
competitors. “Conceptually, of course, any notion of dis
crimination assumes a comparison of substantially 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 enter
prise, government is vested with the responsibility of pro
tecting the health, safety, and welfare of its citizens. See
Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724,
756 (1985) (“The States traditionally have had great latitude
under their police powers to legislate as to the protection of
port the proposition. Scott struck down two laws that discriminated in
favor of in-state businesses and against out-of-state businesses; 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 distribu
tion[,] . . . reject[ing] the argument that this monopoly system was uncon
stitutionally discriminatory.” Granholm, supra, at 507 (Thomas, J., dis
senting) (citing Vance, supra, at 450–452). It was the dissent in Vance
that argued that “such a state monopoly system constituted unconstitu
tional discrimination.” Granholm, supra, at 507 (Thomas, J., dissenting)
(citing 170 U. S., at 462–468 (opinion of Shiras, J.)). The Vance Court sim
ply struck down a regulation on direct shipments to consumers for per
sonal use, under the Court’s excruciatingly arcane pre-Prohibition prece
dents. See id., 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.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
Cite as: 550 U. S. 330 (2007) 343
Opinion of the Court
the lives, limbs, health, comfort, and quiet of all persons”
(internal quotation marks omitted)). These important re
sponsibilities 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 regard
laws favoring local government and laws favoring private
industry with equal skepticism. As our local processing
cases demonstrate, when a law favors in-state business over
out-of-state competition, rigorous scrutiny is appropriate be
cause the law is often the product of “simple economic pro
tectionism.” 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 di
rected toward any number of legitimate goals unrelated to
protectionism. Here the flow control ordinances enable the
Counties to pursue particular policies 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 enti
ties the same under the dormant Commerce Clause would
lead to unprecedented and unbounded interference by the
courts with state and local government. The dormant Com
merce Clause is not a roving license for federal courts to
decide what activities are appropriate for state and local gov
ernment to undertake, and what activities must be the prov
ince of private market competition. In this case, the citizens
of Oneida and Herkimer Counties have chosen the govern
ment to provide waste management 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

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
344 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Opinion of the Court
have left the entire 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 responsibility for the matter with their government,
and to adopt flow control ordinances to support the govern
ment effort. It is not the office of the Commerce Clause to
control the decision of the voters on whether government or
the private sector should provide waste management serv
ices. “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 methods 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 traditionally
a local government function.” 261 F. 3d, at 264 (case below)
(Calabresi, J., concurring); see USA Recycling, Inc. v. Baby
lon, 66 F. 3d 1272, 1275 (CA2 1995) (“For ninety years, it has
been settled law that garbage collection 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 it
self has recognized local government’s vital role in waste
management, making clear that “collection and disposal of
solid wastes should continue 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 public
control” in this area. N. Y. Pub. Auth. Law Ann. § 2049–
tt(3). We may or may not agree with that approach, but

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
345 Cite as: 550 U. S. 330 (2007)
Opinion of the Court
nothing in the Commerce 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 discrimina
tion when a State shifts the costs of regulation 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 restraints normally ex
erted when interests within the state are affected.” South
ern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761,
767–768, n. 2 (1945). Here, the citizens and businesses of the
Counties bear the costs of the ordinances. There is no rea
son 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 Commerce Clause.7
6 Justice Thomas is thus wrong in stating that our approach might
suggest “a policy-driven preference for government monopoly over priva
tization.” Post, at 354 (opinion concurring in judgment). That is instead
the preference of the affected locality here. Our opinion simply recog
nizes 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 affirm
ance would lead to the “Oneida-Herkimer Hamburger Stand,” accompa
nied 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 safe
guard 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 government function such as
waste disposal, without running afoul of the Commerce Clause, is hardly

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
346 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Opinion of Roberts, C. J.
D
The Counties’ flow control ordinances are properly ana
lyzed 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.” Philadelphia v. New
Jersey, 437 U. S., at 624. Under the Pike test, we will up
hold 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 or
dinances have removed the waste generated in Oneida and
Herkimer Counties from the national marketplace for waste
processing services.” 438 F. 3d, at 160. We find it unneces
sary 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 ef
fective way to finance their integrated package of waste
disposal services. While “revenue generation is not a local
interest that can justify discrimination against interstate
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 financing
tools. They increase recycling in at least two ways, confer
a prescription for state control of the economy. In any event, Congress
retains authority under the Commerce Clause as written to regulate inter
state 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 fran
chises. See, e. g., Gibbons v. Ogden, 9 Wheat. 1, 221 (1824).

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
347 Cite as: 550 U. S. 330 (2007)
Opinion of Roberts, C. J.
ring significant health and environmental benefits upon the
citizens of the Counties. First, they create enhanced in
centives 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 encouraging
their citizens to sort their own trash. Second, by requiring
all waste to be deposited at Authority facilities, 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 tradi
tional concern of local government. The haulers neverthe
less 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 discrimi
nation. In the alternative, they maintain that the Counties’
laws cannot survive the more permissive Pike test, because
of asserted burdens on commerce. There is a common
thread to these arguments: They are invitations to rigor
ously scrutinize economic legislation passed under the aus
pices 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. 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.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
348 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Scalia, J., concurring in part
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 judi
cial invention, not to be expanded beyond its existing do
main.” General Motors Corp. v. Tracy, 519 U. S. 278, 312
(1997) (Scalia, J., concurring). “The historical record pro
vides 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. Wash
ington 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 uncon
stitutional by this Court.” West Lynn Creamery, Inc. v.
Healy, 512 U. S. 186, 210 (1994) (Scalia, J., concurring in
judgment). As today’s opinion makes clear, the flow-control
law at issue in this case meets neither condition. It benefits
a public entity performing a traditional local-government
function and treats all private entities precisely the same
way. “Disparate treatment constitutes discrimination only
if the objects of the disparate treatment are, for the relevant
purposes, similarly situated.” Camps Newfound/Owa
tonna, Inc. v. Town of Harrison, 520 U. S. 564, 601 (1997)
(Scalia, J., dissenting). None of this Court’s cases con
cludes that public entities and private entities are similarly
situated for Commerce Clause purposes. To hold that they
are “would broaden the negative Commerce Clause beyond
its existing scope, and intrude on a regulatory sphere tradi
tionally 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.”

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
Cite as: 550 U. S. 330 (2007) 349
Thomas, J., concurring in judgment
Generally speaking, the balancing of various values is left to
Congress—which is precisely what the Commerce Clause
(the real Commerce Clause) envisions.
Justice Thomas, concurring in the judgment.
I concur in the judgment. Although I joined C & A Car
bone, 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 un
workable in practice. See Camps Newfound/Owatonna,
Inc. v. Town of Harrison, 520 U. S. 564, 610–620 (1997)
(Thomas, J., dissenting); Tyler Pipe Industries, 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, appli
cation of the negative Commerce Clause turns solely on pol
icy 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 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 Con
gress, this Court has interpreted the Commerce Clause as
a tool for courts to strike down state laws that it believes
inhibit interstate commerce. But there is no basis in the
Constitution for that interpretation.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
350 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Thomas, J., concurring in judgment
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 in
terpreted 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).” Ante, at 338.
The Court’s reliance on Cooley v. Board of Wardens of
Port of Philadelphia ex rel. Soc. for Relief of Distressed
Pilots, 12 How. 299 (1852), and Case of the State Freight
Tax, 15 Wall. 232 (1873), 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 Congress 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 exclu
sive legislation by Congress” but holding that “the nature of
th[e] 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 regulation “admit
only of one uniform system,” Cooley, supra, at 319. Rather,
1 This justification for the negative Commerce Clause is itself unsup
ported by the Constitution. See Tyler Pipe Industries, Inc. v. Wash
ington State Dept. of Revenue, 483 U. S. 232, 261–262 (1987) (Scalia, J.,
concurring in part and dissenting in part).

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
351 Cite as: 550 U. S. 330 (2007)
Thomas, J., concurring in judgment
the modern jurisprudence focuses upon the way in which
States regulate those subjects to decide whether the regula
tion is permissible. E. g., ante, at 338–339, 345. 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 ordi
nances “discriminat[e] on [their] face against interstate com
merce.” Ante, at 338. Again, none of the cases the Court
cites explains how the absence or presence of discrimination
is relevant to deciding whether the ordinances are constitu
tionally permissible, and at least one case affirmatively ad
mits that the nondiscrimination rule has no basis in the Con
stitution. 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 gradu
ally in the decisions of this Court giving effect to its basic
purpose”). Thus cloaked in the “purpose” of the Commerce
Clause, the rule against discrimination that the Court applies
to decide this case exists untethered from the written Con
stitution. The rule instead depends upon the policy prefer
ences of a majority of this Court.
The Court’s policy preferences are an unsuitable basis for
constitutional doctrine because they shift over time, as dem
onstrated 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 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) (stat
ing that a Commerce Clause violation would occur if the
state statute would “directly . . . obstruct and burden in
terstate commerce”). More recently, the Court has struck

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
352 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Thomas, J., concurring in judgment
down state laws sometimes based on its preference for na
tional unity, see, e. g., American Trucking Assns., Inc. v.
Michigan Pub. Serv. Comm’n, 545 U. S. 429, 433 (2005) ( jus
tifying the nondiscrimination rule by stating that “[o]ur Con
stitution was framed upon the theory that the peoples of the
several states must sink or swim together” (internal quota
tion marks omitted)), and other times on the basis of antipro
tectionist sentiment, 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.
Limbach, 486 U. S. 269, 273–274 (1988) (stating that the nega
tive 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 protectionism, laws that
would excite those jealousies and retaliatory measures the
Constitution was designed to prevent”); Toomer v. Witsell,
334 U. S. 385, 403–404 (1948) (striking down a law that “im
pose[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 leg
islative choice in Congress. To the extent that Congress
does not exercise its authority to make that choice, the Con
stitution does not limit the States’ power to regulate com
merce. In the face of congressional silence, the States are
free to set the balance between protectionism and the free
market. Instead of accepting this constitutional reality, the
Court’s negative Commerce Clause jurisprudence gives nine
Justices of this Court the power to decide the appropriate
balance.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
Cite as: 550 U. S. 330 (2007) 353
Thomas, J., concurring in judgment
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. Nota
bly, 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). Like
wise, it cannot follow “the cardinal rule to construe provi
sions 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’ “deliberate 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 dissenting 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 “government is
vested with the responsibility of protecting the health,
safety, and welfare of its citizens.” Ante, at 342. According
to the Court, a law favoring in-state business requires rigor
ous scrutiny because the law “is often the product of ‘simple
economic protectionism.’ ” Ante, at 343. A law favoring
local government, however, “may be directed 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 discriminated in favor of in-state private
entities for a legitimate, nonprotectionist reason. See Bar
ber, supra, at 319 (striking down the State’s inspection
2 No previous case addresses the question whether the negative Com
merce 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 339–341.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
354 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Thomas, J., concurring in judgment
law for livestock even though it did not challenge “[t]he pre
sumption 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 pri
vate entities, we did not doubt the good faith of the munici
pality 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 interstate enti
ties 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 privatiza
tion. Ante, at 344 (stating that “waste disposal is both
typically and traditionally a local government function”
(brackets and internal quotation marks omitted)). What
ever 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 regula
tion of commerce to the whim of the Federal Judiciary.
III
Despite its acceptance of negative Commerce Clause juris
prudence, the Court expresses concern about “unprece
dented and unbounded interference by the courts with state
and local government.” Ante, at 343. It explains:
“The dormant Commerce Clause is not a roving license
for federal courts to decide what activities are appro
priate for state and local government to undertake, and
3 The dissent argues that such a preference is unwarranted. Post, at
365–366 (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”).

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
355 Cite as: 550 U. S. 330 (2007)
Thomas, J., concurring in judgment
what activities must be the province of private market
competition.
. . . . .
“There is no reason to step in and hand local businesses
a victory they could not obtain through the political
process.” Ante, at 343, 345.
I agree that the Commerce Clause is not a “roving license”
and that the Court should not deliver to businesses victories
that they failed to obtain through the political process.
I differ with the Court because I believe its powerful rheto
ric 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 re
ject the negative Commerce Clause, rather than tweak it.
Ante, at 347. In Lochner the Court located a “right of free
contract” in a constitutional provision that says nothing 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 to
day’s decision does not repudiate that doctrinal error.
Rather, it further propagates the error by narrowing the
negative Commerce Clause for policy reasons—reasons that
later majorities of this Court may find to be entirely
illegitimate.
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) (upholding a
maximum-hours requirement for women because the differ
ence between the “two sexes” “justifies a difference in legis
lation”). 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.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
356 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Alito, J., dissenting
Justice Alito, with whom Justice Stevens and Jus
tice 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 re
quire[d] all solid waste to be processed at a designated trans
fer station before leaving the municipality,” discriminated
against interstate commerce and was invalid under the Com
merce Clause because it “depriv[ed] competitors, including
out-of-state firms, of access to a local market.” Id., at 386.
Because the provisions challenged in this case are essentially
identical to the ordinance invalidated in Carbone, I respect
fully dissent.
I
This Court has “interpreted the Commerce Clause to in
validate local laws that impose commercial barriers or dis
criminate 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 con
text if it mandates “ ‘differential treatment of in-state and
out-of-state economic interests’ ” in a way “ ‘that benefits the
former and burdens the latter.’ ” Ante, at 338 (quoting Ore
gon Waste Systems, Inc. v. Department of Environmental
Quality of Ore., 511 U. S. 93, 99 (1994)). A local 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. Tay
lor, 477 U. S. 131 (1986).
“Solid waste, even if it has no value, is an article of com
merce.” Fort Gratiot Sanitary Landfill, Inc. v. Michigan
Dept. of Natural Resources, 504 U. S. 353, 359 (1992). Ac
cordingly, 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 nondiscrimina
tory means.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
357 Cite as: 550 U. S. 330 (2007)
Alito, J., dissenting
In Carbone, this Court invalidated a local ordinance re
quiring all nonhazardous solid waste in Clarkstown, New
York, to be deposited at a specific local transfer facility. The
Court concluded that the ordinance discriminated against in
terstate commerce because it “hoard[ed] solid waste, and the
demand to get rid of it, for the benefit of the preferred proc
essing 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 profit
able, 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 “rev
enue generation is not a local interest that can justify dis
crimination against interstate commerce.” 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 environmental safety.” Ibid. Thus,
the Court invalidated the ordinance because any legitimate
local interests served by the ordinance could be accomplished
through nondiscriminatory means. See id., at 392–393.
This case cannot be meaningfully distinguished from Car
bone. As the Court itself acknowledges, “[t]he only salient
difference” between the cases is that the ordinance invali
dated in Carbone discriminated in favor of a privately 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 334. The Court relies on the
distinction between public and private ownership to uphold
the flow-control laws, even though a straightforward applica
tion of Carbone would lead to the opposite result. See ante,

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
358 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Alito, J., dissenting
at 342–344. The public-private distinction drawn by the
Court is both illusory and without precedent.
II
The fact that the flow-control laws at issue discriminate in
favor of a government-owned enterprise does not meaning
fully distinguish this case from Carbone. The preferred fa
cility in Carbone was, to be sure, nominally owned by a pri
vate 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 guaranteed that,
during the first five years of the facility’s existence, the con
tractor 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 “re
ceived less than 120,000 tons in a year, the town [would]
make up the tipping fee deficit.” Ibid. To prevent resi
dents, businesses, and trash haulers from taking their waste
elsewhere in pursuit of lower tipping fees (leaving the town
responsible for covering any shortfall in the contractor’s
guaranteed revenue stream), the town enacted an ordinance
“requir[ing] all nonhazardous solid waste within the town to
be deposited at” the preferred facility. Ibid.
This Court observed that “[t]he object of this arrangement
was to amortize the cost of the transfer station: The town
would finance its new facility with the income generated
by the tipping fees.” Ibid. (emphasis added). “In other
words,” the Court explained, “the flow control ordinance
[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

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
359 Cite as: 550 U. S. 330 (2007)
Alito, J., dissenting
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 transaction in Car
bone 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 fa
cility”); 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 re
ferred to the transfer station in terms suggesting 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 profitable”); id., at 394 (concluding
that, “having elected to use the open market to earn reve
nues for its project, the town may not employ discriminatory
regulation to give that project an advantage over rival busi
nesses from out of State” (emphasis added)).
Today the Court dismisses those statements as “at best
inconclusive.” Ante, at 340, n. 3. The Court, however, fails
to offer any explanation as to what other meaning could pos
sibly attach to Carbone’s repeated references to Clarkstown’s
transfer station as a municipal facility. It also ignores the
fact that the ordinance itself, which was included in its en
tirety in an appendix to the Court’s opinion, repeatedly re
ferred to the station as “the Town of Clarkstown solid waste
facility.” 511 U. S., at 396, 398, 399. The Court likewise

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
360 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Alito, J., dissenting
fails to acknowledge that the parties in Carbone openly ac
knowledged 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 Petitioners, 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 continued economic viability of the town’s waste facility”
(emphasis 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.
III
In any event, we have never treated discriminatory legis
lation with greater deference simply because the entity fa
vored by that legislation was a government-owned enter
prise. In suggesting otherwise, the Court relies unduly 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 341 (emphasis in orig
inal). Carbone’s use of the word “businesses,” the Court in
sists, somehow reveals that Carbone was not “extending”
our dormant Commerce Clause jurisprudence “to cover dis
crimination in favor of local government.” Ante, at 341.
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 discrimi
nation in favor of a state-owned entity.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
361 Cite as: 550 U. S. 330 (2007)
Alito, J., dissenting
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 Commerce
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 ven
dors, see id., at 442, but that the State could surmount this
problem by allowing residents to receive out-of-state ship
ments for their personal use. See id., at 452. The Court’s
holding was based on the same fundamental dormant Com
merce Clause principle 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 commerce and an unjust preference of the prod
ucts 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 dis
criminate 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
1 See Granholm v. Heald, 544 U. S. 460, 517–518 (2005) (Thomas, J., dis
senting) (“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)).

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
362 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Alito, J., dissenting
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 “dis
criminat[e]” against interstate commerce, they are “within
the ambit of the Twenty-first Amendment” and are there
fore 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 ser
vices, either by means of a government-owned monopoly or
otherwise.
B
Nor has this Court ever suggested that discriminatory leg
islation favoring a state-owned enterprise is entitled to fa
vorable treatment. To be sure, state-owned entities are ac
corded special status under the market-participant doctrine.
But that doctrine is not applicable here.
Under the market-participant doctrine, a State is permit
ted 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 partici
pant, 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 mar
ket participants by operating a fee-for-service business en
terprise 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 gov

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
363 Cite as: 550 U. S. 330 (2007)
Alito, J., dissenting
ernmental 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 de
fense under the market-participant doctrine, Brief for Re
spondents 24–25, but that argument misses the point. Re
gardless of whether respondents can assert a defense under
the market-participant doctrine, this Court’s cases make
clear that States cannot discriminate against interstate com
merce unless they are acting solely as market participants.
Today, however, the Court suggests, contrary to its prior
holdings, that States can discriminate in favor of in-state in
terests while acting both as a market participant and as a
market regulator.
IV
Despite precedent condemning discrimination in favor of
government-owned enterprises, the Court attempts to de
velop 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 re
gard laws favoring local government and laws favoring pri
vate industry with equal skepticism,” because the latter are
“often the product of ‘simple economic protectionism,’ ” ante,
at 343 (quoting Wyoming v. Oklahoma, 502 U. S. 437, 454
(1992)), while the former “may be directed toward any num
ber of legitimate goals unrelated to protectionism,” ante,
at 343. Second, the Court reasons that deference to legisla
tion discriminating in favor of a municipal landfill is espe
cially appropriate considering that “ ‘[w]aste disposal is both
typically and traditionally a local government function.’ ”
Ante, at 344 (quoting 261 F. 3d 245, 264 (CA2 2001) (Cala
bresi, J., concurring)). Third, the Court suggests that re
spondents’ flow-control laws are not discriminatory because
they “treat in-state private business interests exactly the
same as out-of-state ones.” Ante, at 345. I find each of
these arguments unpersuasive.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
364 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Alito, J., dissenting
A
I see no basis for the Court’s assumption that discrimina
tion in favor of an in-state facility owned by the government
is likely to serve “legitimate goals unrelated to protection
ism.” Discrimination in favor of an in-state government fa
cility serves “ ‘local economic interests,’ ” Carbone, 511 U. S.,
at 404 (O’Connor, J., concurring in judgment) (quoting Ray
mond Motor Transp., Inc. v. Rice, 434 U. S. 429, 444, n. 18
(1978)), inuring to the benefit of local residents who are em
ployed at the facility, local businesses that supply the facility
with goods and services, and local workers employed by such
businesses. It 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 govern
ments often discriminate in favor of state-owned businesses
(by shielding them from international competition) precisely
for the purpose of protecting those who derive economic
benefits from those businesses, including their employees.2
Such discrimination amounts to economic protectionism in
any realistic sense of the term.3
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 his
torically been understood to protect free trade and prohibit States from
“plac[ing] [themselves] in a position of economic isolation,” Baldwin 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 mar
ket 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

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
365 Cite as: 550 U. S. 330 (2007)
Alito, J., dissenting
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, reasoning that
the State’s inspectors can more easily monitor the use of pes
ticides, fertilizers, and feed on farms within the State’s bor
ders. Such legislation would almost certainly be unconstitu
tional, notwithstanding its potential to promote public health
and safety. See Philadelphia v. 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 iden
tical facility that is owned by the State or municipality.
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 benefits the cor
poration’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 eco
nomic protectionism. Nor do I think it is realistic or consist
ent with our precedents to condemn some discriminatory
laws as protectionist while upholding other, equally discrimi
natory 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
the enacting government excludes all private-sector participants from the
affected local market.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
366 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Alito, J., dissenting
so unlikely to be the product of economic protectionism that
they should be exempt from the usual dormant Commerce
Clause standards.
Proper analysis under the dormant Commerce Clause in
volves more than an inquiry into whether the challenged Act
is in some sense “directed toward . . . legitimate goals unre
lated 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 practical effect’ ”—then
“the burden falls on [the enacting government] to demon
strate both that the statute ‘serves a legitimate local pur
pose,’ 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 discrimina
tory, then regardless of how legitimate and nonprotectionist
the underlying legislative goals may be, the legislation is
subject to strict scrutiny. Similarly, the fact that a discrimi
natory law “may [in some sense] be directed toward any
number of legitimate goals unrelated to protectionism” 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; dis
criminatory 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 protectionism can reside in legislative means as well
as legislative ends,” such that “whatever [the State’s] pur
pose, 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
differently”); Hunt v. Washington State Apple Advertising
Comm’n, 432 U. S. 333, 352–353 (1977) (explaining that “we

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
367 Cite as: 550 U. S. 330 (2007)
Alito, J., dissenting
need not ascribe an economic protection motive to” discrimi
natory laws; such laws are subject to strict scrutiny 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 instruc
tive 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 five miles of the
city’s central square. See id., at 350. The ordinance “pro
fesse[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 qual
ity of the milk sold in the city. The Court nevertheless in
validated the ordinance, concluding that any public health
benefits it may have conferred could be achieved through
“reasonable nondiscriminatory alternatives,” including a sys
tem that would allow a nonlocal dairy to qualify to sell milk
in the city upon proving that it was in compliance with appli
cable 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 pro
tect 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 measure.” 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 discriminatory burden on interstate com
merce,” 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 multiplication of
preferential trade areas destructive of the very purpose of
the Commerce Clause.” Id., at 356. “Under the circum

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
368 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Alito, J., dissenting
stances here presented,” the Court concluded, “the regula
tion 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.
Like the ordinance in Dean Milk, these laws discriminate
against interstate commerce (generally favoring local inter
ests over nonlocal interests), but are defended on the ground
that they serve legitimate goals unrelated to protectionism
(e. g., health, safety, and protection of the environment).
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 ef
fectively through nondiscriminatory means. Indeed, no less
than in Carbone, those goals could be achieved through “uni
form [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 environmental 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 having 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 dis
criminating in favor of a municipal landfill is especially ap
propriate considering that “ ‘[w]aste disposal is both typically
and traditionally a local government function.’ ” Ante, at
344 (quoting 261 F. 3d, at 264 (Calabresi, J., concurring)).
I disagree on two grounds.
First, this Court has previously recognized that any stand
ard “that turns on a judicial appraisal of whether a particular

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
369 Cite as: 550 U. S. 330 (2007)
Alito, J., dissenting
governmental function is ‘integral’ or ‘traditional’ ” is “un
sound in principle and unworkable in practice.” Garcia v.
San Antonio Metropolitan Transit Authority, 469 U. S. 528,
546–547 (1985). Indeed, the Court has twice experimented
with such standards—first in the context of intergovernmen
tal 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 Na
tional League of Cities v. Usery, 426 U. S. 833 (1976)—only
to abandon them later as analytically unsound. See Garcia,
supra, at 547 (overruling 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” govern
mental functions and their nontraditional counterparts, see
ante, at 344, 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., dis
senting), 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 dis
posal 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 342 (quoting General
Motors Corp. v. Tracy, 519 U. S. 278, 298 (1997)), a “tradi
tional” municipal landfill is for present purposes entirely dif

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
370 UNITED HAULERS ASSN., INC. v. ONEIDA-HERKIMER
SOLID WASTE MANAGEMENT AUTHORITY
Alito, J., dissenting
ferent from a monopolistic landfill supported by the kind of
discriminatory legislation at issue in this case and in Car
bone. While the former may be rooted in history and tradi
tion, the latter has been deemed unconstitutional 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 com
merce because they “treat in-state private business inter
ests exactly the same as out-of-state ones.” Ante, at 345.
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 interstate commerce is not
to be sustained simply because the statute imposing it ap
plies 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]
4 A law granting monopoly rights to a single, local business clearly would
not be immune from a dormant Commerce Clause challenge simply be
cause 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.

550US2 Unit: $U36 [07-21-10 16:33:33] PAGES PGT: OPIN
371 Cite as: 550 U. S. 330 (2007)
Alito, J., dissenting
ordinance is no less discriminatory because in-state or in
town processors are also covered by the prohibition”).
* * *
The dormant Commerce Clause has long been understood
to prohibit the kind of discriminatory legislation upheld by
the Court in this case. I would therefore reverse the deci
sion of the Court of Appeals.