Norwegian Cruise Line Holdings Ltd v. State Surgeon General ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12729
____________________
NORWEGIAN CRUISE LINE HOLDINGS LTD,
a Bermuda Company,
NCL (BAHAMAS), LTD.,
a Bermuda Company agent of Norwegian Cruise Line,
SEVEN SEAS CRUISES S. DE R.L. LLC,
d.b.a. Regent Seven Seas Cruises,
OCEANIA CRUISES S. DE R.L.,
d.b.a. Oceania Cruises,
Plaintiffs-Appellees,
versus
STATE SURGEON GENERAL,
Florida Department of Health, in his official capacity,
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2 Opinion of the Court 21-12729
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-22492-KMW
____________________
Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and BRASHER,
Circuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal concerns whether a Florida statute that prohib-
its all businesses operating in the state from requiring customers to
provide documentary proof that they are vaccinated against
COVID-19 violates the Free Speech and Commerce Clauses of the
Constitution. Norwegian Cruise Line Holdings Ltd., a corporation
headquartered in Florida, operates cruise ships that travel around
the world. Norwegian requires everyone on board its ships to be
vaccinated against COVID-19. To enforce that policy, Norwegian
requires its customers to provide proof of vaccination. Florida
sought to protect its residents from that kind of discrimination by
enacting a statute that prohibits businesses from “requir[ing] pa-
trons or customers to provide any documentation certifying
COVID-19 vaccination or postinfection recovery to gain access to,
entry upon, or service from the business operations in [Florida].”
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21-12729 Opinion of the Court 3
FLA. STAT. ANN. § 381.00316(1). Norwegian sued Florida’s Surgeon
General and moved for a preliminary injunction. The district court
entered a preliminary injunction on the grounds that the statute
likely violates Norwegian’s right to speak freely, see U.S. CONST.
amends. I, XIV, and likely unduly burdens interstate commerce,
see U.S. CONST. art. I, § 8, cl. 3.
We vacate the preliminary injunction. Florida’s statute is a
regulation of economic conduct that only incidentally burdens
speech, which does not implicate the First Amendment. And its
burdens on interstate commerce do not exceed the benefits of fur-
thering Florida’s substantial interests in protecting its residents
from discrimination and invasions of privacy.
I. BACKGROUND
After March 2020, the COVID-19 pandemic took a substan-
tial toll on the cruise industry. Although some cruise lines volun-
tarily suspended operations, not all did. See 85 FED. REG. 16628,
16631 (Mar. 24, 2020). As a result, the federal government pub-
lished a No Sail Order and generally prohibited cruise-ship opera-
tions. Id. For more than a year, Norwegian’s “entire 28-vessel fleet
was docked and inactive” because of the pandemic. And the halt of
operations in that time allegedly cost Norwegian more than $6 bil-
lion.
Later that year, the Centers for Disease Control and Preven-
tion published another order that “establishe[d] a framework for a
phased approach to resuming cruise ship passenger operations in
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4 Opinion of the Court 21-12729
U.S. waters.” 85 FED. REG. 70153, 70153 (Nov. 4, 2020). The condi-
tional sailing order included the “[e]stablishment of laboratory test-
ing of crew onboard cruise ships in U.S. waters”; “simulated voy-
ages designed to test a cruise ship operators’ ability to mitigate
COVID-19 onboard cruise ships”; “a certification process”; and “a
return to passenger voyages in a manner that mitigates the risk of
COVID-19 introduction, transmission, or spread among passen-
gers and crew onboard ships and ashore to communities.” Id. And
the order “contain[ed] requirements for . . . [s]horeside COVID-19
laboratory screening testing of all crew”; “onboard diagnostic test-
ing capabilities for symptomatic travelers”; “shoreside COVID-19
laboratory screening testing of all newly embarking crew”; and
“continued compliance with complete, accurate, and acknowl-
edged, No Sail Order Response Plans.” Id.
In April 2021, the Centers sent a letter to “Cruise Industry
Colleagues.” The letter included updates for fully vaccinated pas-
sengers and crew. “In lieu of conducting a simulated voyage” as
announced in the phased approach, cruise ship operators could
“submit to [the Centers] a clear and specific vaccination plan and
timeline to limit cruise ship sailings to 95 percent of passengers who
have been verified by the cruise ship operator as fully vaccinated
prior to sailing.”
The State of Florida sued the Centers and moved for a pre-
liminary injunction on the ground that the conditional sailing order
and the later instructions were unlawful. See Florida v. Becerra, 544
F. Supp. 3d 1241, 1246–47 (M.D. Fla. 2021). The district court
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preliminarily enjoined the Centers “from enforcing against a cruise
ship arriving in, within, or departing from a port in Florida the con-
ditional sailing order and the later measures.” Id. at 1305. The Cen-
ters appealed to this Court and requested a stay of the injunction.
After we first granted that request, we sua sponte vacated our ini-
tial order and denied the Centers’ request for a stay. See Florida v.
Sec’y, Dep’t of Health & Hum. Servs., No. 21-12243 (11th Cir. July
23, 2021). This year, the Centers moved to voluntarily dismiss the
appeal and we granted that motion. So, the conditional sailing or-
der and later instructions are now non-binding guidelines, but all
cruise lines operating in Florida have voluntarily complied.
Norwegian planned to resume sailing from Florida for the
first time “aboard the Norwegian Gem.” On July 9, 2021, the Cen-
ters approved Norwegian’s application for a conditional sailing cer-
tificate. Norwegian “attested to [the Centers] . . . that at least 95%
of passengers and 95% of its crew on its upcoming cruise will be
confirmed as fully vaccinated prior to sailing.” (Internal quotation
marks omitted.) When Norwegian submitted its attestation, it
“planned—and continues to plan—to ‘confirm[]’ passengers’ and
the crews’ COVID-19 vaccination status through documentation,
which [it] understand[s] to be the only reliable way of confirming
vaccination status in this context.”
Florida acted to discourage and prohibit businesses from re-
quiring vaccination documents as a condition of service. Governor
Ron DeSantis issued an executive order declaring that “[b]usinesses
in Florida are prohibited from requiring patrons or customers to
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provide any documentation certifying COVID-19 vaccination or
post-transmission recovery to gain access to, entry upon, or service
from the business.” Fla. Exec. Order No. 21-81 § 2 (Apr. 2, 2021).
The order required that businesses comply “to be eligible for grants
or contracts funded through state revenue.” Id. § 4. The Governor
explained that “many Floridians have not yet had the opportunity
to obtain a COVID-19 vaccination, some have infection-acquired
immunity, and others may be unable to obtain a COVID-19 vac-
cination due to health, religious, or other reasons.” Id. at 1. The
order also stated that “individual COVID-19 vaccination records
are private health information which should not be shared by man-
date” and that “COVID-19 vaccine passports reduce individual
freedom and will harm patient privacy.” Id.
The next month, the Florida Legislature enacted a statute
that is substantively identical to section 2 of the executive order.
The statute prohibits vaccine-documentation requirements as fol-
lows:
[A]ny business operating in this state . . . may not re-
quire patrons or customers to provide any documen-
tation certifying COVID-19 vaccination or postinfec-
tion recovery to gain access to, entry upon, or service
from the business operations in this state. This sub-
section does not otherwise restrict businesses from in-
stituting screening protocols consistent with authori-
tative or controlling government-issued guidance to
protect public health.
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FLA. STAT. ANN. § 381.00316(1). The statute further declares that
the State “may impose a fine not to exceed $5,000 per violation.”
Id. § 381.00316(4). The statute became effective on July 1, 2021.
The proponents of the legislation based their support on rea-
sons like those of the Governor. In the House, Representative Tom
Leek—the sponsor of the bill and the chairman of the Pandemics
Committee—reasoned that the statute would protect a substantial
minority population from discrimination:
We must recognize that vaccine hesitancy is real and
understandable. Don’t get me wrong: . . . get vac-
cinated. Please! Get vaccinated; let’s return to nor-
mal. But recognize that it is fair for certain segments
of our community to be hesitant about getting the
vaccine, and that it is absolutely true that the largest
segment of our community that is vaccination-hesi-
tant is our minority population. It was not anti-free-
dom nor wrong when the State stepped in and said
that employers could not discriminate on the basis of
race. It was not anti-freedom nor wrong when the
State told landlords that they could not discriminate
against people with disabilities. And it is right today
for the State to tell businesses that they may not—
may not—enact policies that unfairly and disparately
discriminate against our minority populations.
House Session, FLA. HOUSE OF REPRESENTATIVES, at 2:28:28–
2:29:37 (Apr. 28, 2021), https://www.flsenate.gov/media/Video-
Player?EventID=1_2usodgs8-202104281030&Redirect=true. Rep-
resentative Leek also explained that the “bill protects the rights of
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a material portion of our minority population who remains vaccine
hesitant.” Id. at 2:30:45–2:30:56. Representative Mike Beltran ex-
plained that news reports confirmed the existence of discrimination
against people based on vaccination status and concluded that “we
have people discriminating against you if you’re not vaccinated.
Why are we doing this?” Id. at 2:24:25–2:24:59.
In the Senate, Senator Danny Burgess reasoned along simi-
lar lines. He explained that the Legislature was “making sure
there’s not a chilling effect for those who . . . have religious reasons
for not getting [the vaccine] or health reasons for not wanting to
get it.” Senate Session, FLA. SENATE, at 6:24:00–6:24:10, (Apr. 29,
2021), https://www.flsenate.gov/media/VideoPlayer?Even-
tID=1_3wpkrnbb-202104291000&Redirect=true. He added that
the “vaccine is not mandated and we have exemptions already
when it comes to religious beliefs, so I think that we’re just in line
with . . . those policies.” Id. at 6:24:08–6:24:19. And when asked
“about . . . cruise ship[s]” specifically, Senator Burgess explained
that “we’re making a public policy call here in Florida that . . . if
you operate a business here in Florida you cannot require one to
have a vaccine . . . to gain entry.” Id. at 6:30:36–6:30:57.
The cruise industry did not uniformly adopt a vaccination
requirement for all passengers. Carnival Cruise Line, Royal Carib-
bean International, Celebrity Cruises, and MSC Cruises each “al-
lowed at least some unvaccinated passengers to sail, although the
policy regarding the number of unvaccinated passengers permitted
to sail on each ship varies by company.” Some of these cruise lines
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“required vessels to sail with at least 95 percent of their passengers
fully vaccinated” and required “[v]accinated passengers” to provide
proof of their vaccination status at the terminal. “Other companies,
such as MSC, have not required ships to sail with a set percentage
of vaccinated guests.” Norwegian took a more restrictive approach
that would exclude all unvaccinated persons from their cruises. In-
deed, Norwegian “promised its passengers 100% vaccinated cruises
before [the statute] was enacted on May 3, 2021, and before it took
effect on July 1, 2021.” (Emphasis added.)
Norwegian and several of its wholly owned subsidiaries
sued the Surgeon General of Florida in his official capacity and
moved for “[p]reliminary and permanent injunctive relief prevent-
ing [the Surgeon General] from enforcing Florida Statute
§ 381.00316 against [Norwegian], including any subsidiaries, oper-
ators or agents” and a “declaration that [the statute] is unlawful as
applied to” Norwegian. Norwegian complained that “[w]hile [it]
[intended to] require documentation confirming that its passengers
have been vaccinated,” the State “enacted a law . . . that expressly
prohibits [Norwegian] from requiring such documentation.” Nor-
wegian asserted that the statute “blocks communications between
a business and its customers . . . in violation of the First Amend-
ment” and “profoundly disrupts the proper flow of interstate and
international commerce without advancing any substantial state
interest . . . in violation of the Dormant Commerce Clause.”
To support its claims, Norwegian alleged that its ships “sail
to interstate and foreign ports” and that “[m]any such ports require
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proof of vaccination to enter, proof of vaccination to enter without
a mandatory quarantine, or proof of vaccination to enter without
testing.” Norwegian “scheduled several upcoming voyages to for-
eign ports that require proof of vaccination to enter without test-
ing, including Belize, Bahamas, British Virgin Islands, and Hondu-
ras.” (Emphasis added.) “As such, [Norwegian] . . . planned cruises
requiring proof that 100% of passengers and crew have been vac-
cinated against COVID-19.” Norwegian alleged that it “cannot ver-
ify its passengers’ COVID-19 vaccination status unless it can re-
quire passengers to show documentation certifying that they are
fully vaccinated” because “[t]here is no adequate substitute for doc-
umentary proof when it comes to confirming vaccination status.”
Because “the only way for [Norwegian] to require vaccine docu-
mentation . . . would be by eschewing operations in Florida,” Nor-
wegian alleged that its “operations will be impaired and it will lose
substantial revenue.” It alleged that “Florida’s [statute] threatens to
disrupt and even shut down the interstate and foreign cruise oper-
ations of [Norwegian].” And the statute allegedly burdens Norwe-
gian’s speech because it “restricts the transmission of information
based on its content, as it expressly prohibits transmission only of
documentation ‘certifying COVID-19 vaccination or postinfection
recovery.’” (Quoting FLA. STAT. ANN. § 381.00316(1).)
In an affidavit Norwegian filed in the district court, Dr. Ste-
phen Ostroff explained that “[r]equiring that all passengers and
crew be fully vaccinated is the single best way to guard against
COVID-19 transmission on cruise ships.” He added that “cruise
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lines [cannot] effectively implement passenger and crew vaccina-
tion requirements” without “an adequate way to verify vaccination
status” because “it is not uncommon for individuals to attempt to
evade public health screening protocols.”
Norwegian’s Chief Executive Officer, Frank J. Del Rio, ex-
plained in an affidavit that “80% of cruise passengers would prefer
fully vaccinated voyages” and that “[t]he maintenance of consumer
confidence and goodwill is essential for sustainable business suc-
cess in the cruise industry.” He also explained that “requiring full
vaccination for 100% of passengers and crew is consistent with the
vaccination protocols required by many foreign ports where [Nor-
wegian] ships are scheduled to visit.” He reported that “[n]o other
jurisdiction that [Norwegian] operates in around the world prohib-
its documenting passengers’ vaccination status as Florida now
does.” And he attested that “[t]he loss of revenue caused by the
[statute] in calendar year 2021 could exceed $100 million and could
also result in a loss or diminishment of employment for [Norwe-
gian] employees in South Florida.”
Norwegian moved for a preliminary injunction, which the
district court granted. The district court enjoined the Surgeon Gen-
eral “from enforcing [s]ection 381.00316 against [Norwegian] pend-
ing resolution of the merits of this case.” It “f[ound] that [Norwe-
gian] [was] entitled to a preliminary injunction because [it] ha[d]
shown: (1) a substantial likelihood of success on the merits of [its]
First Amendment and [D]ormant Commerce Clause claims; (2)
that [it] would suffer irreparable injury absent an injunction; and
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(3) that the equities and public interest weigh in favor of an injunc-
tion.” On the First Amendment claim, the district court ruled that
section 381.00316 is a content-based restriction; it rejected the ar-
gument that section 381.00316 is an economic regulation of con-
duct that only incidentally burdens speech; and it held that the stat-
ute fails to survive heightened scrutiny. On the Dormant Com-
merce Clause claim, it ruled that section 381.00316 “does not di-
rectly regulate, or affirmatively discriminate against, interstate
commerce” and that the “[s]tatute is applicable to both out-of-state
and in-state business entities that operate in the State of Florida.”
The district court concluded—and the parties agreed—that the
statute “does not implicate concerns about local economic protec-
tionism raised by courts that” enjoin statutes that do. applied the
balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). It
ruled that the Surgeon General “failed to articulate how the goals
of medical privacy and antidiscrimination are fulfilled by the ex-
press terms of the [s]tatute.” And it ruled that the burdens on inter-
state commerce are likely to be clearly excessive in relation to the
putative local benefits of the statute.
After the Surgeon General filed this appeal, Norwegian iden-
tified two destinations that had since required all passengers aged
12 and older to be fully vaccinated for ships to enter port—the Ba-
hamas and the United States Virgin Islands. But before oral argu-
ment, the Surgeon General notified this Court that the govern-
ments of those destinations now allow unvaccinated persons to en-
ter with negative COVID-19 tests. See Emergency Powers (Covid-
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19 Pandemic) (Management and Recovery) (No.2) (Amendment)
(No. 8) Order, 2021, at 2–3, PRIME MINISTER OF THE BAHAMAS (Aug.
19, 2021) (specifying that the order is “[e]ffective the 3rd day of Sep-
tember, 2021 until the 1st day of November, 2021”); Travel Proto-
cols, THE BAHAMAS (Apr. 2, 2022), https://travel.gov.bs/file/trav-
elProtocols; Thirty-Fifth Supplemental Executive Order and Proc-
lamation by the Governor of the United States Virgin Islands § 4,
at 7–8, OFFICE OF THE GOVERNOR (Feb. 28, 2022).
II. STANDARD OF REVIEW
“We review a district court’s grant of a preliminary injunc-
tion for abuse of discretion.” Fed. Trade Comm’n v. On Point Cap.
Partners LLC, 17 F.4th 1066, 1077 (11th Cir. 2021). “We review the
preliminary injunction’s underlying legal conclusions de novo and
its findings of fact for clear error.” Id. at 1078.
III. DISCUSSION
“A preliminary injunction is an extraordinary remedy never
awarded as of right,” id. at 1077 (internal quotation marks omitted),
and the party seeking that remedy must satisfy a four-part test,
Otto v. City of Boca Raton, 981 F.3d 854, 860 (11th Cir. 2020). First,
it must prove that “it has a substantial likelihood of success on the
merits.” Id. (internal quotation marks omitted). Second, it must
prove that it will suffer irreparable injury unless the injunction is-
sues. Id. Third, it must prove that the injury that threatens it “out-
weighs whatever damage the proposed injunction may cause the
opposing party.” Id. (internal quotation marks omitted). Finally, it
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must prove that “the injunction would not be adverse to the public
interest” if issued. Id. (internal quotation marks omitted).
We divide our discussion in two parts. First, we explain that
Norwegian is unlikely to succeed on the merits of its First Amend-
ment claim. Second, we explain that Norwegian is unlikely to suc-
ceed on the merits of its Dormant Commerce Clause claim.
A. Norwegian Is Unlikely to Succeed on the Merits of Its First
Amendment Claim.
“The First Amendment, applicable to the States through the
Fourteenth Amendment,” Reed v. Town of Gilbert, 576 U.S. 155,
163 (2015), provides that governments “shall make no law
. . . abridging the freedom of speech,” U.S. CONST. amend. I. That
command generally removes from governments the “power to re-
strict expression because of its message, its ideas, its subject matter,
or its content.” Reed, 576 U.S. at 163 (internal quotation marks
omitted). Statutes “that target speech based on its communicative
content” are “presumptively unconstitutional and may be justified
only if the government proves that they are narrowly tailored to
serve compelling state interests.” Id. And “regulation[s] of speech
[are] content based if [they] appl[y] to particular speech because of
the topic discussed or the idea or message expressed.” Id.
The parties disagree about whether section 381.00316(1) is a
content-based restriction of speech subject to heightened scrutiny.
The Surgeon General argues that the statute is not subject to the
First Amendment because it is a regulation of economic conduct
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that only incidentally burdens speech. Norwegian argues that the
statute is a content-based restriction of speech that cannot survive
strict or intermediate scrutiny.
We agree with the Surgeon General. “In cases at the margin,
it may sometimes be difficult to figure out what constitutes speech
protected by the First Amendment. But this is not a hard case in
that respect.” See Wollschlaeger v. Governor, Fla., 848 F.3d 1293,
1307 (11th Cir. 2017) (en banc).
Statutes that regulate non-expressive conduct do “not impli-
cate the First Amendment at all” even if they incidentally burden
speech. See Otto, 981 F.3d at 861, 865. “[R]estrictions on protected
expression are distinct from restrictions on economic activity or,
more generally, on nonexpressive conduct.” Sorrell v. IMS Health
Inc., 564 U.S. 552, 567 (2011). “[T]he First Amendment does not
prevent restrictions directed at commerce or conduct from impos-
ing incidental burdens on speech.” Id. The Supreme Court has long
acknowledged that making “a course of conduct illegal” is not “an
abridgment of freedom of speech . . . merely because the conduct
was in part initiated, evidenced, or carried out by means of lan-
guage, either spoken, written, or printed.” Ohralik v. Ohio State
Bar Ass’n, 436 U.S. 447, 456 (1978) (quoting Giboney v. Empire
Storage & Ice Co., 336 U.S. 490, 502 (1949)). It has affirmed that
“the State does not lose its power to regulate commercial activity
deemed harmful to the public whenever speech is a component of
the activity.” Id. And it has rejected the contention “that the con-
stitutional freedom for speech . . . extends its immunity to speech
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or writing used as an integral part of conduct in violation of a valid
criminal statute.” Giboney, 336 U.S. at 498. That “expansive inter-
pretation” of the First Amendment “would make it practically im-
possible ever to enforce laws against agreements in restraint of
trade as well as many other agreements and conspiracies deemed
injurious to society.” Id. at 502. So, if section 381.00316 regulates
non-expressive economic conduct that only incidentally burdens
speech, then it does “not implicate the First Amendment at all.” See
Otto, 981 F.3d at 861, 865.
Anti-discrimination statutes ordinarily regulate non-expres-
sive conduct. The “focal point” for their prohibitions is “on the act
of discriminating against individuals in the provision of publicly
available goods, privileges, and services on the proscribed
grounds.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of
Bos., Inc., 515 U.S. 557, 572 (1995) (emphasis added). Enacting anti-
discrimination statutes is “well within the State’s usual power . . .
when a legislature has reason to believe that a given group is the
target of discrimination, and . . . do[es] not, as a general matter, vi-
olate the First or Fourteenth Amendments.” Id. For that reason,
“philosophical objections” do not generally “allow business owners
and other actors in the economy and in society to deny protected
persons equal access to goods and services under a neutral and gen-
erally applicable public accommodations law.” Masterpiece
Cakeshop, Ltd. v. Colo. Civ. Rts. Comm’n, 138 S. Ct. 1719, 1727
(2018). “Where the government does not target conduct on the ba-
sis of its expressive content, acts are not shielded from regulation
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merely because they express a discriminatory idea or philosophy.”
R.A.V. v. City of St. Paul, 505 U.S. 377, 390 (1992). And the Su-
preme Court has repeatedly applied these principles in rejecting
First Amendment challenges to anti-discrimination statutes. See,
e.g., Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993); Hishon v. King
& Spalding, 467 U.S. 69, 78 (1984) (rejecting the argument “that ap-
plication of Title VII . . . would infringe constitutional rights of ex-
pression” because “invidious private discrimination . . . has never
been accorded affirmative constitutional protections” (alteration
adopted) (internal quotation marks omitted)); Runyon v. McCrary,
427 U.S. 160, 176 (1976) (explaining that although “parents have a
First Amendment right to send their children to educational insti-
tutions that promote the belief that racial segregation is desirable,
. . . it does not follow that the practice of excluding racial minorities
from such institutions is also protected”).
Section 381.00316 is an anti-discrimination statute that reg-
ulates non-expressive economic conduct. The statute prohibits
“any business operating in” Florida from “requir[ing] patrons or
customers to provide any documentation certifying COVID-19
vaccination or postinfection recovery to gain access to, entry upon,
or service from the business operations in [Florida].” FLA. STAT.
ANN. § 381.00316(1). A “requirement” is “[t]he act of establishing
something as a need or necessity.” See Requirement, BLACK’S LAW
DICTIONARY (11th ed. 2019) (emphasis added). The plain meaning
of the statute prohibits the same action as any run-of-the-mill anti-
discrimination statute: closing the business’s doors to a class of
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18 Opinion of the Court 21-12729
persons based “on . . . proscribed grounds.” See Hurley, 515 U.S. at
572. A business violates section 381.00316 when it commits the
“act,” see id., of “deny[ing]” patrons or customers “access to goods
and services,” Masterpiece, 138 S. Ct. at 1727, based on their failure
to prove that they are not members of the protected class. See FLA.
STAT. ANN. § 381.00316(1). It prohibits businesses from discriminat-
ing by “treat[ing] differently” vaccinated and unvaccinated persons
based on a condition that members of only one class can satisfy.
See Wollschlaeger, 848 F.3d at 1317. And it protects conduct for
those who either cannot or desire not to comply with the pro-
scribed condition. See FLA. STAT. ANN. § 381.00316(1). So, section
381.00316(1) targets “the practice of excluding [persons] from”
businesses and prohibits their exclusion. See Runyon, 427 U.S. at
176.
Section 381.00316(1) does “not implicate the First Amend-
ment at all.” See Otto, 981 F.3d at 861. Section 381.00316(1)
“appl[ies] to non-expressive conduct such as failing to,” see Woll-
schlaeger, 848 F.3d at 1317, grant persons who are unwilling or un-
able to verify their vaccination status “access to, entry upon, or ser-
vice from the business operations,” FLA. STAT. ANN. § 381.00316(1).
And when the statute regulates non-expressive conduct in that
way, “there is no First Amendment problem.” Wollschlaeger, 848
F.3d at 1317.
Norwegian argues that the statute regulates communica-
tions between businesses and customers. It argues that “Florida’s
[b]an restricts the free flow of vital, potentially life-saving
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21-12729 Opinion of the Court 19
information by targeting only one type of written information ex-
change.” It adopts the view of the district court that section
381.00316 “regulates speech because it restricts the free flow of in-
formation by rendering the exchange permissible in some circum-
stances but impermissible in others.” And it maintains that “[t]he
[b]an is triggered by a specific mode (documentary) of conveying
specific information (vaccination against COVID-19) between a
specific speaker and audience (customer to business)” because
“[o]nly if a business first engages in this communicative exchange
can its ensuing conduct (restricting access) violate the [b]an.” We
disagree.
Section 381.00316(1) limits no communications between
customers and businesses. Norwegian concedes that the statute
does not prohibit businesses from asking customers about their
vaccination status. See Greater Phila. Chamber of Com. v. City of
Phila., 949 F.3d 116, 135–36 (3d Cir. 2020) (holding that a provision
“clearly regulate[d] speech because it prevent[ed] employers from
asking potential applicants specific questions” about wage history
but holding that a provision that prohibits “the act of relying on
wage history to set a salary” regulated conduct). And the statute
does not prohibit customers from responding—orally or in writ-
ing—with that information and proof. Cf. Wollschlaeger, 848 F.3d
at 1307 (holding that provisions “trigger[ed] First Amendment scru-
tiny” because they “expressly limit[ed] the ability of certain speak-
ers—doctors and medical professionals—to write and speak about
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20 Opinion of the Court 21-12729
a certain topic—the ownership of firearms—and thereby re-
strict[ed] their ability to communicate and/or convey a message”).
What businesses may not do is close their doors to custom-
ers who decline to present private medical documentation. See
FLA. STAT. ANN. 381.00316(1). The act of closing the doors to those
persons is prohibited, not any communicative exchange between
them and the businesses that would like to discriminate against
them “on the proscribed grounds.” See Hurley, 515 U.S. at 572.
Section 381.00316(1) is distinguishable from “speaker-focused and
content-based restrictions on speech” that “limit a category of peo-
ple—[such as businesses]—from communicating a particular mes-
sage.” Cf. Otto, 981 F.3d at 863 (internal quotation marks omitted)
(holding that regulations of therapists were speaker-focused and
content-based restrictions because they expressly restricted thera-
pists “from communicating a particular message”).
To be sure, Norwegian correctly asserts that the statute does
not prohibit requiring oral verification of vaccination status, see
FLA. STAT. ANN. § 381.00316(1), but that fact means only that the
statute does not prohibit all conceivable discriminatory conduct
against unvaccinated and privacy-concerned persons. Likewise, a
statute that prohibits “any business” from “requir[ing] patrons or
customers to provide any documentation certifying” that they are
American born “to gain access to, entry upon, or service from the
business,” see id., would not prohibit all discriminatory conduct
against foreigners, but it would proscribe a subset of that kind of
non-expressive conduct. Cf., e.g., 42 U.S.C. § 2000e-2(a), (a)(1) (“It
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21-12729 Opinion of the Court 21
shall be an unlawful employment practice for an employer . . . to
fail or refuse to hire or to discharge any individual . . . because of
such individual’s . . . national origin.”); 42 U.S.C. § 2000d (“No per-
son in the United States shall, on the ground of . . . national origin,
be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiv-
ing Federal financial assistance.”). Different statutes can target dif-
ferent instances of the same kind of evil. And governments need
not eliminate all discrimination whenever they wish to eliminate
any. See Katzenbach v. Morgan, 384 U.S. 641, 657 (1966) (“[I]n de-
ciding the constitutional propriety of the limitations in . . . a[n anti-
discrimination] measure we are guided by the familiar principles
that a statute is not invalid under the Constitution because it might
have gone farther than it did, that a legislature need not strike at all
evils at the same time, and that reform may take one step at a time,
addressing itself to the phase of the problem which seems most
acute to the legislative mind.” (citations and internal quotation
marks omitted)).
The only speech that section 381.00316(1) burdens is inci-
dental to its direct prohibition of the discriminatory conduct of ex-
cluding persons the statute protects. “We recognize . . . the long-
standing principle that valid regulations of conduct might sweep
up some speech at their margins.” Otto, 981 F.3d at 865. Although
businesses may request documentary proof of vaccination status,
they cannot use words to exclude people who decline that re-
quest—“in that case, sir, you may not enter.” But burdens to that
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22 Opinion of the Court 21-12729
kind of speech are precisely those that do not implicate the First
Amendment when the statute is “directed at commerce or con-
duct.” Sorrell, 564 U.S. at 567. “That is why a ban on race-based
hiring may require employers to remove ‘White Applicants Only’
signs.” Id. (internal quotation marks omitted). Norwegian likewise
cannot put up a sign that says, “No Vaccine Passport, No Entry.”
That sign—analogous in this context to “a supervisor’s statement
‘sleep with me or you’re fired’[—]may be proscribed not on the
ground of any expressive idea that the statement communicates,
but rather because it facilitates the threat of discriminatory con-
duct.” See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 208 (3d
Cir. 2001) (Alito, J.). “Despite the purely verbal [or written] quality
of such a threat, it surely is no more ‘speech’ for First Amendment
purposes than the robber’s demand ‘your money or your life.’” See
id.To be sure, anti-discrimination statutes can sometimes of-
fend the First Amendment. See Wollschlaeger, 848 F.3d at 1317.
Anti-discrimination statutes offend the First Amendment when
they “declar[e] [another’s] speech . . . to be the public accommoda-
tion” to which protected persons must be given access for their
own expression. Hurley, 515 U.S. at 573 (holding that “state courts’
application of [an anti-discrimination] statute had the effect of de-
claring” a parade that had an “expressive character . . . to be [a] pub-
lic accommodation”). And they can also give offense if the regu-
lated conduct is, as Norwegian argues here, expressive.
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21-12729 Opinion of the Court 23
Section 381.00316(1) does not burden speech or expressive
conduct in those forbidden ways. The statute does not “requir[e]
[Norwegian] to alter the expressive content of” its speech in the
way that adding an unwanted message to a parade would do. See
id. at 572–73. And the Supreme Court has “extended First Amend-
ment protection only to conduct that is inherently expressive.”
Rumsfeld v. F. for Acad. & Institutional Rts., Inc. (FAIR), 547 U.S.
47, 66 (2006) (emphasis added). “An observer who sees” a patron
board cruise A instead of B “has no way of knowing whether” B “is
expressing its disapproval of the” unvaccinated passengers, “all
[B’s] rooms are full, or the [patron] decided for reasons of their own
that they would rather” go on A. See id. “The expressive compo-
nent” of Norwegian’s “actions is not created by the conduct itself
but by the speech that accompanies it,” and “[t]he fact that such
explanatory speech is necessary is strong evidence that the conduct
at issue here”—denying service to people—“is not so inherently ex-
pressive that it warrants protection.” See id.; see also id. (“If com-
bining speech and conduct were enough to create expressive con-
duct, a regulated party could always transform conduct into
‘speech’ simply by talking about it.”). The “objections” Norwegian
has and can publicly announce consistent with section 381.00316(1)
“do not allow [it] . . . to deny protected persons equal access to
goods and services.” Masterpiece, 138 S. Ct. at 1727. And its cruise-
line “services lack the expressive quality of a parade, a newsletter,
or the editorial page of a newspaper,” see FAIR, 547 U.S. at 64, even
if Norwegian “intends” by those services “to express an idea,” see
United States v. O’Brien, 391 U.S. 367, 376 (1968).
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24 Opinion of the Court 21-12729
Supreme Court precedent confirms our conclusion that sec-
tion 381.00316(1) regulates economic conduct. In Rumsfeld v. Fo-
rum for Academic and Institutional Rights, Inc., the Supreme
Court considered a statute that “prevents an institution from re-
ceiving certain federal funding if it prohibits military recruiters
from gaining access to campuses, or access to students on cam-
puses, for purposes of military recruiting in a manner that is at least
equal in quality and scope” to other employers. 547 U.S. at 54 (al-
teration adopted) (internal quotation marks omitted). Law schools
that sought to exclude for political reasons military recruiters from
their campuses argued that the statute violates the First Amend-
ment. Id. at 52–53. The Supreme Court rejected that contention.
Like section 381.00316(1) in relation to businesses, the Supreme
Court explained that the statute in FAIR “neither limits what law
schools may say nor requires them to say anything.” See id. at 60.
The Court held that the statute in FAIR “regulates conduct, not
speech” because “[i]t affects what law schools must do—afford
equal access to military recruiters—not what they may or may not
say.” Id. And it likened the statute to permissible anti-discrimina-
tion statutes that regulate conduct. Id. at 62. The same reasoning
establishes that section 381.00316(1) does not implicate the First
Amendment: it affects what Norwegian “must do—afford equal ac-
cess to” those who cannot or do not disclose their own private
medical documentation—“not what [Norwegian] may or may not
say.” See id. at 60.
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21-12729 Opinion of the Court 25
Our en banc decision in Wollschlaeger v. Governor also es-
tablishes that section 381.00316(1) regulates non-expressive con-
duct. In that decision, we considered a Florida statute that “prohib-
its discrimination ‘against a patient based solely’ on his or her own-
ership and possession of a firearm.” 848 F.3d at 1317 (quoting FLA.
STAT. ANN. § 790.338(5)). We upheld the statute because it
“appl[ies] to non-expressive conduct such as failing to return mes-
sages, charging more for the same services, declining reasonable
appointment times, not providing test results on a timely basis, or
delaying treatment because a patient (or a parent of a patient) owns
firearms.” Id. And we can similarly uphold section 381.00316(1) be-
cause it regulates non-expressive conduct such as “failing to” admit
someone who lacks vaccination documentation on board a cruise
ship. See id.
Norwegian’s reliance on Sorrell v. IMS Health Inc., 564 U.S.
552, and Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144(2017), is unavailing. Both decisions involved statutes that prohib-
ited speakers from conveying information in particular ways. And
neither is on point because section 381.00316(1) includes no similar
prohibition.
In Sorrell, the Supreme Court invalidated a state statute that
prohibited “pharmacies, health insurers, and similar entities from
selling prescriber-identifying information . . . to pharmaceutical
marketers”; that prohibited those businesses “from disclosing” the
information “for marketing”; and that “bar[red] pharmaceutical
manufacturers and detailers from using the information for
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26 Opinion of the Court 21-12729
marketing.” 564 U.S. at 563. The Court reasoned that the statute
“prohibits pharmaceutical manufacturers from using the infor-
mation for . . . marketing, that is, speech with a particular content.”
Id. at 564. It explained that the statute prohibits the sale of that in-
formation to recipients who will use it for marketing, but not to
“those who wish to engage in certain educational communica-
tions.” Id. (internal quotation marks omitted). And the Supreme
Court confronted “a case in which the government [had] pro-
hibit[ed] a speaker from conveying information that the speaker al-
ready possesse[d],” a prohibition that “implicated” “[a]n individ-
ual’s right to speak.” Id. at 568 (emphasis added) (internal quotation
marks omitted).
Section 381.00316(1), by contrast, does not prohibit the con-
veyance of any information in either direction, and it in no way
subjects to any restraints the communication of any information
already in Norwegian’s or its customers’ possession. Sorrell is inap-
posite.
Norwegian’s reliance on Expressions Hair Design is simi-
larly unavailing. In that decision, the Supreme Court held that a
statute that prohibited merchants from imposing a surcharge on
credit card users but did not prohibit them from offering discounts
for the use of cash regulated speech, not merely conduct. See 137
S. Ct. at 1146–47. The Court explained that “typical price regula-
tion[s]” regulate the “seller’s conduct” and only “indirectly dictate
the content of [his] speech.” Id. at 1150–51. If, for example, the price
regulation declares that a sandwich shop must charge $10 for
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21-12729 Opinion of the Court 27
sandwiches, the regulation would regulate “the amount that a
store could collect,” and would incidentally involve communi-
cating to customers that the price for a sandwich is $10. Id. But the
ban on surcharges told “merchants nothing about the amount they
[were] allowed to collect from a cash or credit card payer.” Id. at
1151. Instead, the ban “regulate[d] . . . how sellers [could] com-
municate their prices.” Id. A seller could communicate that the
price is $10.30, with a $0.30 cash discount, but could not communi-
cate that the price is $10.00, plus $0.30 for credit card users. Id. “In
regulating the communication of prices rather than prices them-
selves, [the statute] regulate[d] speech.” Id. Section 381.00316(1),
by contrast, does not tell businesses how they may describe per-
missible conduct to customers. Cf. Dana’s R.R. Supply v. Att’y
Gen., 807 F.3d 1235, 1245 (11th Cir. 2015) (“Calling [a Florida stat-
ute] a ‘no-surcharge law,’ then, is something of a misnomer. The
statute targets expression alone. More accurately, it should be a
‘surcharges-are-fine-just-don’t-call-them-that law.’”).
We conclude that section 381.00316(1) does “not implicate
the First Amendment at all,” see Otto, 981 F.3d at 861, because it
regulates non-expressive economic conduct. And “run-of-the-mill
economic regulations [are] assessed under rational-basis review.”
Dana’s R.R. Supply, 807 F.3d at 1251. “It is enough that there is an
evil at hand for correction, and that it might be thought that the
particular legislative measure was a rational way to correct it.” Wil-
liamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955). Sec-
tion 381.00316(1) bears a rational relationship to the State’s
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28 Opinion of the Court 21-12729
substantial interests in protecting its residents from discrimination
and burdens to privacy because it prohibits businesses from exclud-
ing people who cannot or wish not to produce private medical doc-
umentation.
B. Norwegian Is Unlikely to Succeed on the Merits of Its Dormant
Commerce Clause Claim.
The Commerce Clause provides that “Congress shall have
Power . . . [t]o regulate Commerce with foreign Nations, and
among the several States.” U.S. CONST. art. I, § 8, cl. 3. Although
this clause expressly concerns Congress’s power, the Supreme
Court has discerned a dormant or negative aspect that limits the
power of the “several States,” id., to burden foreign or interstate
commerce. “The Dormant Commerce Clause prohibits regulatory
measures designed to benefit in-state economic interests by bur-
dening out-of-state competitors.” Island Silver & Spice, Inc. v. Is-
lamorada, 542 F.3d 844, 846 (11th Cir. 2008) (internal quotation
marks omitted). And there are only two ways a statute can violate
the Dormant Commerce Clause: “by discriminating against inter-
state commerce or . . . by unduly burdening interstate commerce.”
Fla. Transp. Servs., Inc. v. Miami-Dade Cnty., 703 F.3d 1230, 1244
(11th Cir. 2012).
A regulation violates the Dormant Commerce Clause only
if it fails either one of two tests. See Islamorada, 542 F.3d at 846.
First, protectionist regulations that directly discriminate against in-
terstate commerce, or that have “the effect of favoring in-state eco-
nomic interests,” are invalid unless they “advance a legitimate local
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21-12729 Opinion of the Court 29
purpose that cannot be adequately served by reasonable nondis-
criminatory alternatives.” Id. (alteration adopted) (internal quota-
tion marks omitted). These regulations are unconstitutional if the
State cannot satisfy that narrow exception. Fla. Transp. Servs., Inc.,
703 F.3d at 1244. Second, “if the law or regulation advances a legit-
imate local interest and has only indirect effects on interstate com-
merce, we apply the balancing test from Pike.” Id. at 1244 (internal
quotation marks omitted).
The district court correctly ruled that section 381.00316(1)
neither directly nor indirectly discriminates against interstate com-
merce. Accord Dissenting Op. at 13 n.20. Indeed, the statute ex-
pressly regulates all and only “business[es] operating in [Florida]”—
both local and out-of-state—for their “business operations in [Flor-
ida].” See FLA. STAT. ANN. § 381.00316(1). And the parties agree
that the statute survives this test.
The sole question then is whether section 381.00316(1) sat-
isfies Pike’s balancing test: “Where the statute regulates even-hand-
edly to effectuate a legitimate local public interest, and its effects
on interstate commerce are only incidental, it will be upheld unless
the burden imposed on such commerce is clearly excessive in rela-
tion to the putative local benefits.” Pike, 397 U.S. at 142. Under this
test, we must first determine whether “a legitimate local purpose”
for section 381.00316 exists. See id. If the State has a legitimate local
purpose in enacting section 381.00316(1), we weigh the local bene-
fits of enforcing the statute against the burdens imposed on inter-
state commerce. Id. Only if the burdens on interstate commerce
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30 Opinion of the Court 21-12729
clearly exceed the local benefits of section 381.00316 will we inval-
idate that statute. See Fla. Transp. Servs., 703 F.3d at 1244. “And
the extent of the burden that will be tolerated will of course depend
on the nature of the local interest involved, and on whether it could
be promoted as well with a lesser impact on interstate activities.”
Pike, 397 U.S. at 142 (emphasis added).
The Surgeon General asserts two state interests. First, the
Surgeon General asserts that Florida has an interest in ensuring that
businesses operating within the state do not discriminate against its
citizens for failure to provide documentation of vaccination status.
Second, the Surgeon General asserts that Florida has an interest in
protecting the medical privacy of its residents.
Protecting residents from economic discrimination is a sub-
stantial interest. That interest derives from the State’s traditional
“police powers to protect” the well-being of its residents. See Med-
tronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996). “The States tradition-
ally have had great latitude under their police powers to legislate
as to the protection of the lives, limbs, health, comfort, and quiet
of all persons”—latitude that includes regulating economic rela-
tionships. See Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724,
756 (1985) (internal quotation marks omitted); see also id. (explain-
ing that “States possess broad authority under their police powers
to regulate the employment relationship” (internal quotation
marks omitted)). “[T]he regulation of health and safety matters is
primarily, and historically, a matter of local concern.” Hillsborough
Cnty. v. Automated Med. Lab’ys, Inc., 471 U.S. 707, 719 (1985). The
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21-12729 Opinion of the Court 31
Supreme Court has “long recognized that a State’s interests in the
health and well-being of its residents extend beyond mere physical
interests to economic and commercial interests.” See Alfred L.
Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 609
(1982); see also id. at 608 (acknowledging “the State’s interest in the
removal of barriers to the participation by its residents in the free
flow of interstate commerce”). And the Supreme Court has also
“recognize[d] a similar state interest in securing residents from the
harmful effects of discrimination,” “a substantial interest” that con-
sists in “assuring its residents that it will act to protect them from”
that discrimination. See id. at 609; Wollschlaeger, 848 F.3d at 1314
(explaining that the State “has a substantial interest in making sure
that its residents are able to obtain health care without discrimina-
tion”). So protecting residents from being excluded from access to
goods and services by businesses that operate within the State is a
substantial interest weightier than a “legitimate local” one. See
Pike, 397 U.S. at 142.
It is true, as the dissent states, that deference is not war-
ranted whenever a state asserts that it is promoting its economy or
protecting a domestic industry. Dissenting Op. at 24. But this stat-
ute directly protects a class of individuals from being ostracized.
Like any antidiscrimination statute, it protects these individuals by
preventing businesses from excluding them from the market. See
Alfred L. Snapp & Son, Inc., 458 U.S. at 609; Wollschlaeger, 848
F.3d at 1314. The statute prevents real harm, not some abstract
economic impact. Without this statute, unvaccinated Floridians
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32 Opinion of the Court 21-12729
risk being turned away from the businesses that make their lives
possible—grocery stores, restaurants, fitness gyms, clothing stores,
barber shops and hair salons, and even pharmacies. After all, the
statute covers “any business operating in [Florida],” not just luxury
ocean liners. FLA. STAT. ANN. § 381.00316(1). The dissent’s attempt
to artificially limit the State’s interest to the protection of cruise
ship passengers is, therefore, not persuasive. Dissenting Op. at 1
n.1. Florida’s interest in protecting the unvaccinated from discrim-
ination—not generally promoting its economy—is legitimate.
In similar fashion, the dissent relies on a footnote in the Su-
preme Court’s decision in Head v. New Mexico Bd. of Exam’rs in
Optometry, 374 U.S. 424, 428 n.4 (1963), to argue that the state’s
interest is insubstantial because economic well-being has an atten-
uated connection to public health. Dissenting Op. at 25. But Head
supports our position. For one, Head upheld the statute at issue: a
New Mexico law that prevented the publication of price advertis-
ing of eyeglasses by a local newspaper and radio station. 374 U.S.
at 429. For another, in doing so, Head recognized the “legitimacy
of state legislation” to protect public health. Id. at 428. In reaching
this conclusion, Head acknowledged that “[t]he case is not one . . .
in which the State seeks to justify a statute as a health measure on
the attenuated theory that the economic well-being of a profession
or industry will assure better performance in the public interest.”
Id. at 428 n.4. So too here. The Florida statute was not designed to
protect a discrete profession or industry. Instead, the statute serves
the state’s legitimate interest in prohibiting businesses from
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21-12729 Opinion of the Court 33
excluding its citizens from the interstate market. The Supreme
Court has already recognized this interest is a substantial one, Ba-
rez, 458 U.S. at 609, and Head says nothing to the contrary.
The state interest in protecting the privacy of residents is
also substantial. “We recognize that protection of individual pri-
vacy is a substantial government interest.” Wollschlaeger, 848 F.3d
at 1314. Supreme Court “precedents . . . leave no room for doubt
that ‘the protection of potential clients’ privacy is a substantial [and
traditional] state interest.’” See Florida Bar v. Went For It, Inc., 515
U.S. 618, 625 (1995) (quoting Edenfield v. Fane, 507 U.S. 761, 769
(1993)); cf. also Cal. Democratic Party v. Jones, 530 U.S. 567, 585
(2000) (explaining that “the State’s interest in assuring the privacy
of ” party affiliation is not “a ‘compelling’ one” because that “spe-
cific privacy interest . . . is not [like] the confidentiality of medical
records or personal finances”).
Taken together, the two state interests are plainly weighty.
That is, Florida has a substantial interest in protecting its residents
from economic ostracism based on their hesitancy to divulge to
businesses private medical information. And that weighty state in-
terest is dispositive here.
Because Florida’s substantial interests are in matters tradi-
tionally of state concern, the burdens section 381.00316(1) imposes
on interstate commerce do not clearly exceed its putative local ben-
efits. The Supreme Court has explained “that a State’s power to
regulate commerce is never greater than in matters traditionally of
local concern.” Kassel v. Consol. Freightways Corp., 450 U.S. 662,
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 34 of 123
34 Opinion of the Court 21-12729
670 (1981) (plurality opinion). One “example” is “regulations that
touch upon safety,” regulations that “the Court has been most re-
luctant to invalidate.” Id. (internal quotation marks omitted). And
“if safety justifications are not illusory, the Court will not second-
guess legislative judgment about their importance in comparison
with related burdens on interstate commerce.” Id. (internal quota-
tion marks omitted). The rationale for that strong deference to leg-
islative judgments applies to other “example[s]” of “a State’s power
to regulate commerce . . . in matters traditionally of local concern,”
id., such as regulations that touch upon the health and economic
well-being of residents, Barez, 458 U.S. at 609; Hillsborough, 471
U.S. at 719. To be sure, “the incantation of a purpose to promote
the public health or safety does not insulate a state law from Com-
merce Clause attack[s]” if “[r]egulations designed for that salutary
purpose nevertheless . . . further the purpose . . . marginally,”
while “interfer[ing] with commerce . . . substantially.” Kassel, 450
U.S. at 670. But if “[w]e cannot say that the Florida legislature’s
[traditional] justification[s] w[ere] merely illusory” in that way, we
also cannot “second guess the legislature’s judgment as to the rela-
tive importance of [those] justifications versus any burdens im-
posed on interstate commerce.” Locke v. Shore, 634 F.3d 1185,
1194–95 (11th Cir. 2011).
The dissent attempts to evade the fact that section
381.00316(1) is a traditional well-being regulation by implicitly re-
lying on the false premise that such a regulation would have to pro-
mote residents’ physical health and safety. The dissent asserts that
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21-12729 Opinion of the Court 35
the statute “cannot seriously be described as a” safety regulation,
Dissenting Op. at 33, but the Supreme Court has made clear that
the traditional police power of the state includes promoting resi-
dents’ economic health and safety, Barez, 458 U.S. at 609. Florida
is entitled to promote that interest over possible benefits to resi-
dents’ physical health and safety. And the dissent ignores the sec-
ondary health effects of economic harm of which the Legislature
can take account. Cf. FLA. STAT. § 252.311(4) (explaining that it is
“the intent of the Legislature to minimize the negative effects of an
extended emergency” such as “the COVID-19 pandemic”).
The decision of the Supreme Court in Minnesota v. Clover
Leaf Creamery Co., 449 U.S. 456 (1981), illustrates the substantial
deference owed to state legislative judgments. In that case, “the
Minnesota Legislature enacted a statute banning the retail sale of
milk in plastic nonreturnable, nonrefillable containers, but permit-
ting such sale in other nonreturnable, nonrefillable containers,
such as paperboard milk cartons.” Id. at 458. “Proponents of the
legislation argued that it would promote resource conservation,
ease solid waste disposal problems, and conserve energy.” Id. at
459. After a dairy sued seeking an injunction for violating the Equal
Protection, Due Process, and Dormant Commerce Clauses, the
trial court invalidated the Act on all three theories because it found
as a fact that “the Act w[ould] not succeed in effecting the Legisla-
ture’s published policy goals.” Id. at 460. The Supreme Court of
Minnesota affirmed “on the federal equal protection and due pro-
cess grounds” based on that finding. Id. at 460–61 (internal
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36 Opinion of the Court 21-12729
quotation marks omitted). And the Supreme Court reversed. Id. at
461. It held that any burden to interstate commerce was “not
clearly excessive in light of the substantial state interest in promot-
ing conservation of energy and other natural resources and easing
solid waste disposal problems, which [it] ha[d] already reviewed in
the context of [its] equal protection analysis.” Id. at 473 (citing id.at 465–70) (internal quotation marks omitted); see also id. at 470–
71 n.14; contra Dissenting Op. at 19 (faulting this opinion for citing
the equal-protection analysis that the Supreme Court itself cited in
its Commerce Clause analysis).
The Supreme Court made clear the great deference owed to
legislatures when their asserted interests are substantial. “Whether
in fact the Act will promote more environmentally desirable milk
packaging is not the question”; the question is whether the “Legis-
lature could rationally have decided that its ban on plastic nonre-
turnable milk jugs might foster greater use of environmentally de-
sirable alternatives.” Id. at 466. The Court explained that the state
courts’ finding “that the Act is not a sensible means of conserving
energy” was of no moment because “it is up to legislatures, not
courts, to decide on the wisdom and utility of legislation,” and be-
cause “the question clearly is at least debatable, the Minnesota Su-
preme Court erred in substituting its judgment for that of the leg-
islature.” Id. at 469 (citation omitted) (internal quotation marks
omitted). And importantly, “it is not the function of the courts to
substitute their evaluation of legislative facts for that of the legisla-
ture.” Id. at 470.
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21-12729 Opinion of the Court 37
Both Kassel v. Consolidated Freightways Corp. and Clover
Leaf Creamery make clear that we owe strong deference to the
Florida Legislature when it exercises its traditional police powers
to promote traditional local interests based on justifications that are
not illusory. And the State’s justifications are not illusory if apply-
ing section 381.00316(1) “as written” would “rationally contribute
to [the State’s] purported local benefits.” See Fla. Transp. Servs.,
703 F.3d at 1260. Section 381.00316(1) clears that low bar.
Our dissenting colleague argues that Clover Leaf does not
govern because there “the Court didn’t need to engage in further
analysis of the local-benefits side of Pike’s balance” because further
analysis wouldn’t have made a difference to the balancing outcome
since the law there imposed only a “minor” burden on commerce.
Dissenting Op. at 57. But the problem with our dissenting col-
league’s argument is that the Court did engage in that analysis. Clo-
ver Leaf Creamery Co., 449 U.S. at 470. In doing so, the Court of-
fered a deferential approach toward state legislation that cannot be
reconciled with the dissent’s analysis. The Court’s reasoning was
echoed in Kassel, which the dissent does not suggest involved a
“minor” burden on commerce. Indeed, Kassel addressed regula-
tions that “impair[ed] significantly the federal interest.” 450 U.S. at
671. And this Court has already read Kassel to command substan-
tial deference to states without any caveat for a “minor” burden on
commerce. Locke v. Shore, 634 F.3d 1185, 1194–95 (11th Cir. 2011)
(citing Kassel, 450 U.S. at 670)).
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38 Opinion of the Court 21-12729
Applying section 381.00316(1) as written would rationally
contribute to the State’s purported local benefits. Those benefits
include protecting its unvaccinated and privacy-minded residents
from discrimination and required disclosures of private medical in-
formation—benefits that implicate traditional and substantial state
interests. The statute rationally contributes to those interests by
outlawing conduct by businesses that would directly discriminate
against the unvaccinated, indirectly discriminate against minority
communities that are disproportionately vaccine-hesitant, and re-
quire all residents—vaccinated or not—to disclose to businesses
their private medical records.
These “point[s] w[ere] stressed by [section 381.00316(1)’s]
proponents in the legislature,” evidencing that they were among
“the legislature’s major concerns.” Clover Leaf Creamery Co., 449
U.S. at 468–69. “As Representative [Leek], chief sponsor of the bill
in the House of Representatives, explained,” see id. at 467, “the
largest segment of our community that is vaccination-hesitant is
our minority population,” which is why “the State [should] tell
businesses that they may not . . . enact policies that unfairly and
disparately discriminate against our minority populations.” House
Session, supra, at 2:28:00–2:31:11. “Representative [Beltran] asked
rhetorically, ‘Why [are we doing this]?’,” see Clover Leaf Creamery
Co., 449 U.S. at 469–70, after he reported that “we have people dis-
criminating against you if you’re not vaccinated.” House Session,
supra, at 2:24:20–2:25:00. And the Legislature passed the bill over
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 39 of 123
21-12729 Opinion of the Court 39
objections about the cruise industry. See Senate Session, supra, at
6:30:30–6:31:03.
The dissent dismisses this evidence of the Legislature’s con-
cerns, but its reasoning is unavailing. We, of course, share the dis-
sent’s concerns about the difficulties of discerning collective legis-
lative intent—at least when trying to interpret a statute. Dissenting
Op. at 39–40. But as the dissent concedes, we must look to legisla-
tive history because the Supreme Court has done so in this context.
Id. at 39. Here, we are not using legislative history to determine
what the statute means but to ensure that it serves a constitutional
purpose. Legislative history is often used this way, see, e.g., Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534
(1993); Wallace v. Jaffree, 472 U.S. 38, 58 (1985); Village of Arling-
ton Heights v. Metropolitan Housing Development Corp., 429
U.S. 252, 266 (1977), and its limited application in this context
avoids the pitfalls that Justice Scalia identified. The decision cited
by the dissent, New England Power Co. v. New Hampshire, 455
U.S. 331 (1982), illustrates this exact distinction. In New England
Power, the Court did not rely upon legislative history because it
had to discern the meaning of a law passed by Congress to decide
whether Congress had altered the limits of state power. Id. at 341.
New England Power did not involve the deferential task of as-
sessing whether a state law served a constitutional purpose. Id. So
it is inapposite.
The dissent complains that we rely “exclusively” on Repre-
sentative Leek’s concern about Florida’s vaccine-hesitant minority
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40 Opinion of the Court 21-12729
populations, Dissenting Op. at 38, while ignoring the fact that he
was the “chief sponsor of the bill in the House of Representatives,”
see Clover Leaf Creamery Co., 449 U.S. at 467, and the Chairman
of the Pandemics Committee. Instead of crediting his statements,
the dissent uncharitably contorts another of Representative Leek’s
statements to imagine contradiction where none exists. When
asked if any other state statute “created a new protected class that
has not been addressed through constitutional law,” Representa-
tive Leek responded that state law has indeed created protected
classes but that “[t]hat is not addressed in this bill.” Dissenting Op.
at 37. That statement—that the creation of a new protected class is
not addressed in the bill—does not mean, as the dissent asserts, that
the bill has nothing whatever to do with protecting minority pop-
ulations. Id. at 38. We decline the dissent’s invitation to assume
legislative mendacity with no evidence of it.
The dissent also latches on to our conclusion that the state’s
justifications were “rational” and erroneously argues that we have
applied rational basis review to the state’s arguments. Id. at 58.
Both Kassel and Clover Leaf Creamery make clear that we must
assess whether the state’s justifications are illusory. See Locke, 634
F.3d at 1194–95. Only after determining whether deference is owed
do we defer to the state’s rational view. Id. Under rational basis
review, by contrast, we do not assess whether the state’s justifica-
tions are illusory. Instead, we defer to any “reasonably conceiva-
ble” facts or purposes that could support a classification, even if
they are not the actual rationales behind the legislation. F.C.C. v.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 41 of 123
21-12729 Opinion of the Court 41
Beach Comm., Inc., 508 U.S. 307, 313 (1993). These are two differ-
ent standards, and we have correctly applied the former by deter-
mining that the state’s justifications are not illusory.
The district court also second-guessed Florida’s legitimate
justifications. Like the trial court in Clover Leaf Creamery Co., 449
U.S. at 460, the district court found that “the record” establishes
that section 381.00316(1) “is materially [in]effective at” advancing
the State’s interests. It reasoned that “nothing in the statute appears
to prohibit businesses from imposing a vaccination requirement”
in another form, such as by demanding oral verification. See also
Dissenting Op. at 47 (explaining that the statute does not prohibit
requiring oral verification of vaccination status). It also reasoned
that “Florida’s failure to regulate employers, COVID-19 test re-
sults, and other medical documentation—including documentary
proof-of-vaccination requirements for schoolchildren—conflicts
with its purported desire to protect medical privacy.” And it con-
cluded that “[t]he statute also does not actually protect against” dis-
crimination against unvaccinated persons because businesses may
still differentiate between the vaccinated and unvaccinated in im-
plementing other practices.
The district court erred for two reasons. First, the Supreme
Court “has made clear that a legislature need not strike at all evils
at the same time or in the same way.” Cloverleaf Creamery Co.,
449 U.S. at 466 (internal quotation marks omitted). Indeed, “a leg-
islature may implement its program step by step, adopting regula-
tions that only partially ameliorate a perceived evil and deferring
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42 Opinion of the Court 21-12729
complete elimination of the evil to future regulations.” Id. (altera-
tions adopted) (internal quotation marks omitted). The district
court erred by subjecting the statute to a kind of means-end scru-
tiny that would require that it eliminate all conceivable discrimina-
tion and burdens of medical privacy if it wishes to eliminate any.
Second, the district court failed to give the Legislature the
deference it was due. It is “at least debatable,” id. at 469 (internal
quotation marks omitted), whether the direct regulation of one
kind of discrimination would indirectly discourage the other kinds
that the district court identified. For example, Norwegian itself
concedes that “[t]here is no adequate substitute for documentary
proof when it comes to confirming vaccination status” and that
businesses like Norwegian “cannot verify [their] [customers’]
COVID-19 vaccination status unless [they] can require passengers
to show documentation certifying that they are fully vaccinated.”
If so, it is rational to suppose that section 381.00316(1) would dis-
courage businesses from engaging in what Norwegian concedes
are exercises in futility. The Legislature “could rationally have de-
cided,” id. at 466, to prohibit what in its view is the worst species
of the kinds of evils it targeted and that its prohibition would dis-
courage or eliminate other species in addition. And as for the con-
duct the statute directly prohibits, it is incontrovertible that it will
succeed at reducing or eliminating that conduct. Without section
381.00316(1), some businesses would indeed discriminate as Nor-
wegian itself did.
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21-12729 Opinion of the Court 43
Florida is on firmer ground than Minnesota was in Clover
Leaf Creamery Co. Although Minnesota’s putative benefits de-
pended on the truth of empirical claims, such as whether a partic-
ular ban would conserve energy, id. at 459–60, Norwegian con-
cedes that section 381.00316(1) would stop businesses like Norwe-
gian from requiring vaccine documentation as a condition of ser-
vice. And no amount of empirical evidence is needed to understand
that preventing compelled disclosures of medical documentation
held by only one class of persons prevents instances of both dis-
crimination and required disclosures of private medical documen-
tation that would otherwise occur. Contra Dissenting Op. at 17 (re-
lying on a decision in which the State’s asserted physical-safety in-
terests were subject to empirical disconfirmation).
The dissent insinuates that section 381.00316(1) is not a true
antidiscrimination statute because discrimination based on vac-
cination status “contrasts sharply” with the “‘invidious discrimina-
tion’ that ‘frequently occurs along ethnic lines.’” Id. at 48; see also
id. at 33 (quoting Barez, 458 U.S. at 609). The dissent contests that
comparison because it concludes that Norwegian does not “seek to
invidiously discriminate against unvaccinated people; it seeks to
distinguish between vaccinated and unvaccinated people to ensure
the health and safety of its passengers.” Id. at 45.
We disagree. Florida clearly sought to prevent discrimina-
tion against unvaccinated people by prohibiting businesses from
distinguishing between vaccinated and unvaccinated people. The
dissent resists this conclusion by arguing that “[i]n practice, the
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44 Opinion of the Court 21-12729
statute protects only unvaccinated people against discrimination.”
Id. at 40. But the state need not protect vaccinated and unvac-
cinated people from discrimination equally. After all, Section
381.00316(1) does not involve a constitutionally protected class or
anything like selective protection of one such class over others. Cf.
City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (“[T]he ju-
diciary may not sit as a superlegislature to judge the wisdom or
desirability of legislative policy determinations made in areas that
neither affect fundamental rights nor proceed along suspect
lines.”). More analogous examples abound. Consider a statute that
prohibits employers from relying on the wage history of prospec-
tive employees to set wages. See Greater Phila. Chamber of Com.,
949 F.3d at 134–36. Or consider another statute that prohibits em-
ployers from requiring prospective employees to provide wage-re-
lated information. Those statutes target wage discrimination even
if they leave untouched other forms of discrimination against the
poor. And they are anti-discrimination statutes even if they have
“protect[] only [poor] people against discrimination” who have suf-
fered from wage discrimination. See Dissenting Op. at 47.
The Supreme Court has rejected the dissent’s view that stat-
utes must strike at all forms of discrimination if they strike at any
to count as anti-discrimination statutes. See Katzenbach, 384 U.S.
at 656–57 (rejecting an argument that a statute “itself works an in-
vidious discrimination . . . by prohibiting the enforcement of [an]
English literacy requirement only for those educated in American-
flag schools . . . in which the language of instruction was other than
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21-12729 Opinion of the Court 45
English” because anti-discrimination statutes “need not strike at all
evils at the same time” and “reform may take one step at a time”
(internal quotation marks omitted)). A Legislature can conclude
that one kind of discrimination involving a non-suspect class is
more pressing than discrimination against another non-suspect
class. And the Florida Legislature could have sensibly supposed
that discrimination against the unvaccinated was a serious problem
requiring legislative interposition but that discrimination against
the vaccinated was not. Cf. id. at 657 (explaining that anti-discrim-
ination “reform may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the legislative
mind” (internal quotation marks omitted)). Indeed, the evidence
the dissent marshals suggests that the Legislature was unmoved by
arguments that discrimination against vaccinated people was a
problem that needed the same remedy. Dissenting Op. at 47–48
(discussing floor statements citing an apparent example of discrim-
ination against vaccinated people). So Florida has the discretion to
determine that the differences between vaccinated and unvac-
cinated people do not reasonably justify the economic ostracism to
which the Legislature found the latter would otherwise be sub-
jected.
The dissent’s distinction between invidious and non-invidi-
ous discrimination is also mistaken. Dissenting Op. at 42–43. For
one, the dissent assumes that the statute has nothing to do with
protecting minority populations, but the statute, as Representative
Leek stated, indirectly protects minority communities who are
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46 Opinion of the Court 21-12729
vaccine hesitant. Supra at 7. In any event, the dissent fails to
acknowledge that the State may recognize new protected classes
beyond federal law. As the “double security” of a “compound re-
public,” states can do more than federal law to ensure “security for
civil rights.” The Federalist No. 51 at 339 (James Madison). For ex-
ample, states may protect the indigent, the disabled, and the elderly
from discrimination even though these classes are not constitution-
ally protected. The dissent ignores this basic point. Instead, it sub-
stitutes its own intuitions to conclude that Florida’s interests are
illusory because the statute only protects against (what it labels)
“non-pejorative” or “neutral” discrimination (whatever those la-
bels mean). Dissenting Op. at 34, 45–46.
The dissent has it backwards. The State—not an Article III
court—has the constitutional authority to determine what is and is
not a “reasonable distinction” between its citizens and what quali-
fies as discrimination worth remedying. Id. at 42. In doing so, the
State may find, as a matter of fact, that it needs to protect the un-
vaccinated from being excluded from the market. The dissent’s ap-
proach would flip the script and allow Article III judges to decide
which of Florida’s citizens deserve protection. And that approach
would threaten the state’s authority to protect its citizens from var-
ious forms of discrimination. We decline the dissent’s invitation to
put these policy decisions in the hands of unelected federal judges.
The states are in a better position to make “reasonable distinctions”
between their citizens and to secure their civil rights. For that
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21-12729 Opinion of the Court 47
reason, the Constitution affords state legislatures great deference
in this area. Clover Leaf Creamery Co., 449 U.S. at 466.
The dissent’s dismissal of Florida’s substantial interest in
protecting privacy is similarly unpersuasive. The dissent concludes
that section 381.00316(1) “does not meaningfully promote pri-
vacy.” Id. at 53. The dissent reasons that “the state itself requires
Floridians to present proof of vaccination against diseases other
than COVID-19 to attend schools at the very same time that Sec-
tion 381.00316(1) prohibits cruise lines from requiring documenta-
tion of COVID-19 vaccination.” Id. at 56. But the dissent’s argu-
ment again rests on an unstated and false premise that legislatures
must treat all diseases as though they are equal. The Legislature
could have sensibly determined that the effects of polio on children
justify burdening privacy but that the effects of COVID-19 on chil-
dren do not. The Legislature expressly considered that other dis-
eases warrant vaccination requirements in schools despite burdens
to privacy. That kind of line-drawing is quintessentially one for leg-
islatures, not this Court. And that a legislature might weigh health
benefits against privacy interests differently for different diseases
does not mean that it advances privacy interests “trivially” when it
prohibits compelled disclosures whenever it decides that the pri-
vacy side of the scale is weightier.
We conclude that applying section 381.00316(1) “as written”
would “rationally contribute to [the State’s] purported local bene-
fits.” See Fla. Transp. Servs., 703 F.3d at 1260. And because “[w]e
cannot say that the Florida legislature’s [traditional] justification[s]
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48 Opinion of the Court 21-12729
w[ere] merely illusory,” we also cannot “second guess the legisla-
ture’s judgment as to the relative importance of [those] justifica-
tions versus any burdens imposed on interstate commerce.” Locke,
634 F.3d at 1194–95. So, at the very least, Norwegian “must over-
come a strong presumption of validity” that favors section
381.00316(1). See Kassel, 450 U.S. at 670 (internal quotation marks
omitted).
Despite the evidence that it will suffer economically if it
complies with section 381.00316(1), Norwegian cannot overcome
that strong presumption of validity. Norwegian can travel with un-
vaccinated passengers to ports. Although the Bahamas and the
United States Virgin Islands once required all passengers aged 12
and older to be vaccinated, the governments of those destinations
have since revised their protocols to allow unvaccinated persons to
enter with negative COVID-19 tests. Norwegian concedes that
other foreign ports similarly allow unvaccinated passengers to en-
ter with negative testing. And Norwegian’s Chief Executive Officer
testified that Norwegian “plann[ed] to require that passengers . . .
test negative for COVID-19 before boarding [its] cruises” in any
event. Even so, Norwegian relies on evidence that compliance with
section 381.00316(1) would burden its operations. The district
court concluded that “documentary proof of vaccination w[ould]
expedite passengers’ entry into virtually every single country and
port where [Norwegian] intend[s] to sail.” And it concluded that
without such proof, other protocols would be “impractical” and
“financially, legally, and logistically onerous” for Norwegian. But
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21-12729 Opinion of the Court 49
these burdens to Norwegian are not “clearly excessive in relation
to” the benefits of furthering the State’s substantial anti-discrimina-
tion and privacy interests. See Pike, 397 U.S. at 142.
The Commerce Clause does not necessarily protect Norwe-
gian against prohibitive burdens imposed by local law. “[T]he
Commerce Clause protects the interstate market, not particular in-
terstate firms, from prohibitive or burdensome regulations.” Clo-
ver Leaf Creamery Co., 449 U.S. at 474 (internal quotation marks
omitted). So, “nondiscriminatory regulation[s] serving substantial
state purposes [are] not invalid simply because [they] cause[] some
business to shift from a predominantly out-of-state industry to a
predominantly in-state industry.” Id. The effect of prohibitive or
burdensome regulations on individual firms ordinarily “relates to
the wisdom of the statute, not to its burden on commerce.” Exxon
Corp. v. Governor of Maryland, 437 U.S. 117, 128 (1978). To be
sure, burdens to individual firms can sometimes be unduly burden-
some if, against the facts here, the putative local benefits are illu-
sory or insubstantial. In Pike, for example, “the State’s tenuous in-
terest in having the company’s [products] identified as originating
in [the state] c[ould not] constitutionally justify the requirement
that the company build and operate an unneeded $200,000 . . .
plant in the State.” 397 U.S. at 145. But the Pike Court did not
“deal[] . . . with state legislation in [a] field . . . where the propriety
of local regulation has long been recognized,” id. at 143 (internal
quotation marks omitted), and it instead dealt with a regulation
“requiring business operations to be performed in the home State
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50 Opinion of the Court 21-12729
that could more efficiently be performed elsewhere,” a kind of
“burden on commerce [that] has been declared to be virtually per
se illegal,” id. at 145. Because the State’s interests here are substan-
tial and long recognized, the statute can subject some businesses to
prohibitive or burdensome regulations.
Section 381.00316(1) also does not unduly burden out-of-
state firms any more than domestic ones. The statute does not pro-
hibit foreign cruise lines from imposing their preferred vaccination
requirements when conducting business elsewhere, and those
cruise lines that do impose their preferences abroad “may continue
to move freely across the [Florida] border” on other trips. Clover
Leaf Creamery Co., 449 U.S. at 472. Compliance with the statute
may very well impose additional costs on certain cruise lines, “but
there is no reason to suspect that the gainers will be [Florida] firms,
or the losers out-of-state firms.” See id. at 472–73; see also id. at 473
n.17 (“The existence of major in-state interests adversely affected
by [a statute] is a powerful safeguard against legislative abuse.”).
Indeed, Norwegian is headquartered in Florida. And the strong def-
erence ordinarily due to the Legislature remains if the statute is
burdensome to domestic and foreign businesses alike. Cf. Kassel,
450 U.S. at 675–76 (“Less deference to the legislative judgment is
due . . . where the local regulation bears disproportionately on out-
of-state residents and businesses.”). “[B]ecause this burden is one
shared by Florida and out-of-state firms alike, the burden is not
clearly excessive in relation to the requirement’s local benefit.”
Locke, 634 F.3d at 1195.
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21-12729 Opinion of the Court 51
Norwegian also may choose to “eschew[] operations in Flor-
ida” if it is forced to comply with section 381.00316(1), but that
choice would not establish a burden that is clearly excessive in re-
lation to the State’s substantial interests. Although “[s]ome [busi-
nesses] may choose to withdraw entirely from the [Florida] market,
. . . interstate commerce is not subjected to an impermissible bur-
den simply because an otherwise valid regulation causes some busi-
ness to shift from one interstate [business] to another.” Exxon, 437
U.S. at 127. The district court acknowledged that some cruise lines
do not impose the kind of requirement that Norwegian would like
to impose. And those other cruise lines that maintain operations in
Florida may, consistent with section 381.00316(1), continue to re-
quire compliance with other restrictions for the unvaccinated, such
as COVID-19 testing.
Finally, neither the district court nor Norwegian has identi-
fied a less burdensome regulation that would “promote[] as well”
the State’s substantial interests. See Pike, 397 U.S. at 142. Norwe-
gian argues that “Florida could have adopted a narrow carveout
that specifically exempts cruise line operators or interstate activities
and services, such as international cruises.” (Internal quotation
marks omitted.) The district court used the same examples and rea-
soned that the State’s “failure to adopt a less restrictive alternative
. . . undermine[s] the survival of [s]ection 381.00316 when applying
the Pike balancing test.” But there is no reason to believe that any
less burdensome alternatives would have promoted the State’s in-
terest “as well” as section 381.00316(1). Id. For example, an
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52 Opinion of the Court 21-12729
exemption for specific industries would allow businesses within
them to discriminate against and require disclosures of private
medical documentation from customers and patrons. It is hard to
see how that state of affairs promotes anti-discrimination and pri-
vacy interests as well as an outright ban. Indeed, the district court
faulted the State for not enacting a statute that more effectively
promotes those interests by extending the ban to employer-em-
ployee relationships.
Norwegian and the district court “have suggested several al-
ternative statutory schemes, but these alternatives are either more
burdensome on commerce than [section 381.00316(1)] (as, for ex-
ample, banning all [vaccination requirements]) or less likely to be
effective (as, for example, providing” exemptions). See Clover Leaf
Creamery Co., 449 U.S. at 473–74. That reasoning would turn the
Pike test on its head. Instead of a test designed to be deferential to
nondiscriminatory state laws, the test would require invalidating
all such laws. Every statute that incidentally burdens interstate
commerce can have gerrymandered exemptions to prevent bur-
densome effects in particular industries or to particular firms, but
Pike tells us that those effects are ordinarily permissible.
One final argument merits attention. “Because foreign com-
merce is at stake,” Norwegian argues that “weightier justification
is required from the State.” “In the unique context of foreign com-
merce, a State’s power is further constrained because of the special
need for federal uniformity.” Barclays Bank PLC v. Franchise Tax
Bd., 512 U.S. 298, 311 (1994) (internal quotation marks omitted).
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21-12729 Opinion of the Court 53
This consideration is typically implicated in the context of “state
tax[es] on the instrumentalities of foreign commerce,” see Japan
Line, Ltd. v. Cnty. of Los Angeles, 441 U.S. 434, 448 (1979); see also
Wardair Canada Inc. v. Fla. Dep’t of Rev., 477 U.S. 1, 8 (1986), but
it is also implicated in the context of foreign trade and discrimina-
tory “export restrictions,” S.-Cent. Timber Dev., Inc. v. Wunnicke,
467 U.S. 82, 99–101 (1984) (invalidating a “protectionist” and “na-
ked restraint on export of unprocessed [timber]” to a foreign coun-
try in part because “foreign commerce [was] burdened by the re-
striction”). Those contexts concern “international relations” and
“foreign intercourse and trade,” contexts in which “the people of
the United States act through a single government with unified and
adequate national power.” Japan Line, Ltd., 441 U.S. at 448 (inter-
nal quotation marks omitted).
By contrast, any burdens imposed by section 381.00316(1)
result incidentally from matters traditionally of local concern. As
we have explained, section 381.00316(1) is a “regulation of health
and safety,” “matters [that are] primarily, and historically, . . . mat-
ter[s] of local concern,” Hillsborough, 471 U.S. at 719, not a tax or
restraint on imports and exports. And it is not the case that Con-
gress has given “substantial attention” to the kind of regulation at
issue, which does not “regulat[e] commercial relations with foreign
governments.” See Wunnicke, 467 U.S. at 99–100 (internal quota-
tion marks omitted). So the incidental burdens imposed on foreign
commerce are not “clearly excessive in relation to the putative lo-
cal benefits,” Pike, 397 U.S. at 142, that result from Florida’s
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54 Opinion of the Court 21-12729
traditional power to pass local well-being regulations to further
substantial local interests. Cf. S. Pac. Co. v. Ariz. ex rel. Sullivan,
325 U.S. 761, 783 (1945) (explaining that “[r]egulations affecting the
safety of the[] use [of highways] . . . affect[s] alike shippers in inter-
state and intrastate commerce” and are “akin to quarantine
measures, game laws, and like local regulations of rivers, harbors,
piers, and docks, with respect to which the state has exceptional
scope for the exercise of its regulatory power, and which, Congress
not acting, have been sustained even though they materially inter-
fere with interstate commerce”).
We conclude that Norwegian is unlikely to succeed on the
merits of its Commerce Clause claim. Florida has a substantial in-
terest in protecting its “residents from the harmful effects of dis-
crimination,” see Barez, 458 U.S. at 609, and in protecting the med-
ical privacy of its residents, Wollschlaeger, 848 F.3d at 1314. And
Florida has sought to further those interests by enacting a statute
that proscribes businesses from subjecting an entire class of resi-
dents—including a substantial minority population—to economic
ostracism by requiring that they produce medical documentation
they either do not have or would like not to convey. Cf. Barez, 458
U.S. at 609. Because these justifications are not illusory, this Court
cannot “second guess the legislature’s judgment as to the relative
importance of [those] justifications versus any burdens imposed on
interstate commerce.” Locke, 634 F.3d at 1195. It follows that “the
burden on interstate commerce” does not “clearly outweigh[] the
State’s legitimate purposes,” Clover Leaf Creamery Co., 449 U.S.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 55 of 123
21-12729 Opinion of the Court 55
at 474, especially where, as here, “the interests on both sides are
incommensurate”; “more like judging whether a particular line is
longer than a particular rock is heavy,” Bendix Autolite Corp. v.
Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concur-
ring in the judgment). Florida may, consistent with the Commerce
Clause, “remov[e] . . . barriers to the participation by its residents
in the free flow of interstate commerce.” Barez, 458 U.S. at 608.
IV. CONCLUSION
We VACATE the preliminary injunction against the Sur-
geon General.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 56 of 123
21-12729 ROSENBAUM, J., Dissenting 1
ROSENBAUM, Circuit Judge, Dissenting:
Today the Majority Opinion validates an unconstitutional
Florida law—Florida Statutes Section 381.00316(1), which prohib-
its businesses from requiring patrons to show proof of vaccination
to receive services—as that law applies to the cruise industry.1 It
does so by effectively applying only half of the dormant Commerce
Clause analysis that Supreme Court precedent requires—and not
even applying that half correctly. For dormant Commerce Clause
challenges to state laws, Supreme Court precedent requires us to
balance the local benefits a state’s law brings against the burdens
that law imposes on interstate and foreign commerce. When the
burdens clearly exceed the benefits, the law violates the dormant
Commerce Clause. Four major mistakes plague the Majority
Opinion’s application of the dormant Commerce Clause test.
First, the Majority Opinion shortcuts the balancing process
by mislabeling Section 381.00316(1) a health and safety regulation.
1 Plaintiffs-Appellants Norwegian Entities “br[ought] this [case as an] as-ap-
plied constitutional challenge,” and the district court enjoined Florida “from
enforcing Section 381.00316 against Plaintiffs [Norwegian entities]” only. Nor-
wegian Cruise Line Holdings, Ltd. v. Rivkees, 553 F. Supp. 3d 1143, 1148, 1180
(S.D. Fla. 2021). Yet the Majority Opinion refuses to recognize that this appeal
raises only an as-applied challenge. See Maj. Op. at 31–32 (insisting on analyz-
ing the statute facially and discussing its application to “grocery stores, restau-
rants, fitness gyms, clothing stores, barber shops and hair salons, and even
pharmacies”). Perhaps that’s because it recognizes the weakness of its argu-
ments as they relate to this appeal as it was in fact brought. More on this later.
See infra at 49–50.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 57 of 123
2 ROSENBAUM, J., Dissenting 21-12729
It does so because state laws that meaningfully promote public
health and safety receive “strong deference” from federal courts
balancing a law’s local benefits against the burdens that law im-
poses on interstate and foreign commerce. But a regulation quali-
fies for that kind of deference under dormant Commerce Clause
analysis only if it actually “touch[es] upon safety,” Maj. Op. at 34
(quoting Kassel v. Consol. Freightways Corp., 450 U.S. 662, 670
(1981) (plurality opinion)), and meaningfully advances the state’s
interest in promoting health and safety. Here, though, the only
way Section 381.00316(1) “touch[es] upon safety” is to wallop it.
Indeed, Florida’s law is the exact opposite of a law that
meaningfully promotes health and safety: it will facilitate the
spread of COVID-19 onboard cruise ships by depriving cruise lines
of the ability to verify passengers’ vaccination statuses, a resource
Norwegian’s2 Chief Executive Officer has described as the com-
pany’s most valuable tool for preventing the spread of COVID-19
onboard. The Majority Opinion doesn’t let that pesky little fact
stop it from treating Florida’s law like it promotes health and
safety, though, so the law can benefit from (undeserved) “strong
deference.”
2I use “Norwegian” to refer collectively to the plaintiffs-appellants: Norwe-
gian Cruise Line Holdings Ltd.; NCL (Bahamas) Ltd., d/b/a Norwegian
Cruise Line; Seven Seas Cruises S. De R.L., d/b/a Regent Seven Seas Cruises;
and Oceania Cruises S. De R.L., d/b/a Oceania Cruises.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 58 of 123
21-12729 ROSENBAUM, J., Dissenting 3
Second, contrary to Supreme Court precedent, the Majority
Opinion does not assess whether (and, if so, to what extent) apply-
ing Section 381.00316(1) to the cruise industry actually furthers
Florida’s claimed interests. As the Supreme Court has explained, a
state’s interest is “illusory” when the law “further[s]” the state’s
claimed interest only “marginally,” Kassel, 450 U.S. at 670 (plurality
opinion); see also id. at 691 (Rehnquist, J., dissenting). But the Ma-
jority Opinion never determines whether applying Section
381.00316(1) to the cruise industry actually furthers Florida’s
claimed interests. Instead, the Majority Opinion just evaluates
Florida’s claimed interests in the abstract. And that allows it to im-
properly equate Florida’s interest in preventing cruise lines from
distinguishing between vaccinated and unvaccinated customers for
health reasons with a state’s interest in remedying invidious dis-
crimination along racial, ethnic, religious, or gender lines. By en-
gaging in this false equivalency, the Majority Opinion artificially
inflates the nature of Florida’s actual interest (which is relatively
weak, particularly in the context of the cruise industry) to be as ro-
bust as a state’s truly strong interest in preventing invidious dis-
crimination.
Third, the Majority Opinion affords strong weight to Flor-
ida’s goal of protecting the privacy of those who wish not to dis-
close their COVID-19 vaccination status, even though Florida itself
requires proof of vaccination against many other infectious and po-
tentially deadly and debilitating diseases to attend school and par-
take in other public services. In so doing, the Majority Opinion
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 59 of 123
4 ROSENBAUM, J., Dissenting 21-12729
ignores that such a “distinction is at variance with [Florida’s] as-
serted legislative purpose, and tends to undermine [Florida’s] justi-
fication for the burden the statute imposes on interstate com-
merce.” Edgar v. MITE Corp., 457 U.S. 624, 644 (1982).
Each of these three errors piles false weight upon false
weight upon false weight on the local-benefits side of the balance
so that validation of Florida’s law under the Commerce Clause is a
foregone (but false) conclusion. And then, for good measure, the
Majority Opinion makes its fourth major error, all but ignoring the
substantial burdens Section 381.00316(1) imposes on interstate and
foreign commerce by facilitating the spread of COVID-19 aboard
cruise ships and worldwide—burdens that damage the supply
chain and significantly affect commerce otherwise.
The Majority Opinion’s insistence on effectively ending its
analysis with its (incorrect) assessment of the local benefits and
then declaring the law valid under the Commerce Clause—rather
than weighing the actual (minimal) benefits the law bestows
against the true and heavy burden the law imposes on commerce—
leaves the analysis half-done (and wrongly so on the done half).
And it’s a lot like leaving the house wearing a misbuttoned tuxedo
shirt and tails, while barefoot and pantless, and declaring yourself
to be formally attired. For everyone’s sake, neither should occur.
Instead of the Majority’s half-dressed analysis, we must cor-
rectly evaluate the local benefits—that is, we must discern the pre-
cise interests that Section 381.00316(1) furthers when applied to the
cruise industry. And then, as the term “balancing test” conveys,
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 60 of 123
21-12729 ROSENBAUM, J., Dissenting 5
we must balance those local benefits against the burdens the law
inflicts on both interstate and foreign commerce. When we do
that, it’s clear that the heavy burdens the law imposes on com-
merce far outweigh any minimal benefits in the context of the
cruise industry. So Section 381.00316(1) violates the Commerce
Clause as applied to Plaintiff-Appellant Norwegian. And the dis-
trict court did not abuse its discretion in preliminarily enjoining the
law.
I begin my analysis in Section I where the Majority Opinion
left off: by noting the heavy burdens Section 381.00316(1) imposes
on interstate and foreign commerce because of its significant role
in the particular context of the cruise industry in facilitating and
spreading COVID-19 around the globe. With that in mind, I then
examine the governing standards for reviewing a preliminary in-
junction and for reviewing a challenge under the dormant Com-
merce Clause in Sections II and III, respectively. In Section IV, I
explain why Florida’s statute imparts few local benefits. Section V
weighs any local benefits of the law against the substantial burden
it inflicts on interstate and foreign commerce and shows that Nor-
wegian is likely to succeed on the merits.3 And Section VI shows
why Norwegian meets the remaining requirements for a prelimi-
nary injunction.
3Because Section 381.00316(1) is unconstitutional under the dormant Com-
merce Clause, I do not consider whether it is also unconstitutional under the
First Amendment.
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6 ROSENBAUM, J., Dissenting 21-12729
I. COVID-19 has exacted and continues to exact a heavy toll
on commerce, which Section 381.00316(1) significantly ex-
acerbates by facilitating the spread of COVID-19 on cruise
ships and around the world.
The damage COVID-19 has wrought did not end with the
tragic deaths of more than 6-and-a-half million people worldwide,
including those of the million-plus in the United States.4 Among
other legacies of COVID-19 the world lives with, we must now
deal with “long COVID,” a grave and widespread condition. More
than one-fifth of the roughly 609 million people who survived
COVID-19—about 121 million globally and almost 19 million in
the United States alone—suffer from some form of long COVID.5
According to the CDC, long COVID can cause “brain fog,” debili-
tating fatigue, heart palpitations, shortness of breath, sleep prob-
lems, diarrhea, depression, chest pain, and joint and muscle pain.6
4World Health Organization, WHO Coronavirus (COVID-19) Dashboard,
https://covid19.who.int/ (last visited Oct. 5, 2022).
5See Lara Bull-Otterson et al., Post–COVID Conditions Among Adult
COVID-19 Survivors Aged 18–64 and ≥65 Years — United States, March 2020–
November 2021, Centers for Disease Control and Prevention — Morbidity
and Mortality Weekly Report (May 27, 2022),
https://www.cdc.gov/mmwr/volumes/71/wr/mm7121e1.htm; see also
World Health Organization, WHO Coronavirus (COVID-19) Dashboard, su-
pra.
6 See Long COVID or Post-COVID Conditions, Centers for Disease Control
and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/long-term-
effects/index.html (last visited Oct. 5, 2022).
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 62 of 123
21-12729 ROSENBAUM, J., Dissenting 7
Worse still, these symptoms result from biological and chemical
changes in the body.7
Take “brain fog,” for instance. Stanford researchers study-
ing mouse brains found that, after a COVID-19 infection, an abnor-
mal increase in activity of certain brain cells had contributed to
higher inflammation in the brain.8 In fact, “[t]he genes expressed
. . . after COVID-19 overlapped closely with those expressed . . . in
neurological conditions such as Alzheimer’s disease.”9
That’s right—Alzheimer’s. And with long COVID, it’s not
just mouse brains that show signs of Alzheimer’s; it’s human
brains, too.10 Not only that, but “the acquired dementia that these
patients get tends to be lasting and very problematic.”11 And kids
who’ve suffered COVID-19 have been found twice as likely to
7 See id.8See Erin Digitale, Brain Fog After COVID-19 has Similarities to ‘Chemo
Brain,’ Stanford-Led Study Finds, Stanford Medicine — News Center (June 13,
2022), https://med.stanford.edu/news/all-news/2022/06/brain-fog-covid-
chemo-brain.html.
9 Id.10 Id.11 Elizabeth Cooney, Risk of ‘brain fog’ and other conditions persists up to two
years after Covid infection, Stat https://www.stat-
news.com/2022/08/17/risk-of-brain-fog-and-other-conditions-persists-up-to-
two-years-after-covid-infection/ (quoting Dr. Wes Ely) (last visited Oct. 5,
2022).
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 63 of 123
8 ROSENBAUM, J., Dissenting 21-12729
experience seizures and three times as likely to have psychotic dis-
orders as kids who haven’t had COVID-19.12
Nor do long COVID’s profound effects stop there. Some
long-haulers have problems with multiple organ systems or even
experience autoimmune conditions that increase their risks of de-
veloping diabetes, heart conditions, or neurological conditions.13
But vaccines can prevent many of these problems. First off,
vaccinated people are “markedly” less likely to contract COVID-19
than unvaccinated people.14 And among those who get COVID-
19, vaccinated people are twelve times less likely to endure severe
disease and require hospitalization than those who are unvac-
cinated.15 Vaccinated people are also only half as likely to develop
long COVID if they do fall ill.16
12 Id.13 See supra, note 5.
14See David N. Fisman et al., Impact of Population Mixing Between Vac-
cinated and Unvaccinated Subpopulations on Infectious Disease Dynamics:
Implications for SARS-CoV-2 Transmission, Canadian Medical Association
Journal (Apr. 25, 2022), https://www.cmaj.ca/content/194/16/E573.
See COVID-19 Vaccines Continue to Protect Against Hospitalization and
15
Death Among Adults, Centers for Disease Control and Prevention (Mar. 18,
2022), https://www.cdc.gov/media/releases/2022/s0318-COVID-19-
vaccines-protect.html.
16 SeeUKHSA Review Shows Vaccinated Less Likely to Have Long COVID
than Unvaccinated, GOV.UK (Feb. 15, 2022), https://www.gov.uk/govern-
ment/news/ukhsa-review-shows-vaccinated-less-likely-to-have-long-covid-
than-unvaccinated.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 64 of 123
21-12729 ROSENBAUM, J., Dissenting 9
Plus, vaccines protect more than just those who receive
them. Studies show that unvaccinated people contribute dispro-
portionately to the spread of COVID-19 to others—including to
vaccinated individuals.17 In fact, the district court here found that
vaccines “reduce the risk of transmission from a fully vaccinated
person by 80 to 90 percent.” Norwegian Cruise Line Holdings,
Ltd., 553 F. Supp. 3d at 1150. So a vaccinated person is both less
likely to develop COVID-19 herself and also less likely to spread
COVID-19 to others than is an unvaccinated person.
This disparity is especially significant in the context of
cruises, where hundreds—if not thousands—of people congregate
in close quarters for several days or weeks at a time. As the CDC
has recognized, “COVID-19 spreads easily between people in close
quarters on board ships.”18 And when passengers disembark from
the cruise, they enter other countries and eventually return home
to different states and countries around the world, carrying with
them and further spreading any infections they contracted on the
ship.
Vaccines have been an important development in combat-
ting our ongoing COVID-19 problem. Still, some may have valid
17 See Fisman, supra.
18 SeeCruise Ship Travel During COVID-19, Centers for Disease Control and
Prevention (last updated July 18, 2022), https://www.cdc.gov/corona-
virus/2019-ncov/travelers/cruise-travel-during-covid19.html.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 65 of 123
10 ROSENBAUM, J., Dissenting 21-12729
reasons for not getting vaccinated, and judging those reasons is not
what this case is about.
Instead, this case is about the destruction that COVID-19 has
exacted and continues to exact on national and foreign commerce:
the obvious and hefty costs to economic output. Just consider the
harm the pandemic has caused to the supply chain.19 When we
view COVID-19 through this lens, it is undeniable that more cases
of COVID-19 mean even more damage to commerce.
Yet Section 381.00316(1) prohibits almost all businesses, in-
cluding cruise lines like Norwegian, from, before serving patrons,
requiring them to show proof that they are vaccinated. In this way,
the statute compounds the burdens COVID-19 inflicts on interstate
and foreign commerce because unvaccinated people are signifi-
cantly more likely to develop (and therefore transmit) COVID-19
than vaccinated people, especially in a cruise setting. The district
court found that obtaining proof of vaccination from passengers is
the most important safeguard to prevent the spread of COVID-19
through cruises.
But because of Section 381.00316(1), cruise lines can’t do
that. So they have no way to mitigate the spread of COVID-19 on
19 See, e.g., Sean Harapko, How COVID-19 Impacted Supply Chains and What
Comes Next, EY (Feb. 18, 2021), https://www.ey.com/en_us/supply-
chain/how-covid-19-impacted-supply-chains-and-what-comes-next (“The
COVID-19 pandemic has posed significant challenges for supply chains glob-
ally.”).
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 66 of 123
21-12729 ROSENBAUM, J., Dissenting 11
that important basis. And because the extended time in close quar-
ters on cruises fuels the transmission of COVID-19 by unvaccinated
people, more passengers will develop COVID-19. That increased
transmission creates problems not only for Norwegian’s onboard
medical services—which can become overrun with COVID-19 pa-
tients, obstructing medical care for other illnesses and conditions—
but also for the passengers onboard, the inhabitants of the cities
and ports the ships visit, and those people whom passengers en-
counter on their journeys home and in their communities, all of
whom are now more likely to contract COVID-19 and possibly de-
velop long COVID. In turn, that imposes far-reaching costs on in-
terstate and foreign commerce for Norwegian, which suffers inju-
ries to its goodwill and its business. And it inflicts even greater bur-
dens on interstate and foreign commerce generally by removing
workers from the workforce, which decreases consumers’ spend-
ing power and causes interstate and foreign commerce to contract.
II. Standard of Review
With those burdens in mind, I turn to the standards that gov-
ern our review of the district court’s decision to impose a prelimi-
nary injunction. We review a district court’s order on a motion for
preliminary injunction for abuse of discretion. Alabama v. U.S.
Army Corps of Eng’rs, 424 F.3d 1117, 1129 (11th Cir. 2005). When
conducting our evaluation, we review a district court’s conclusions
of law de novo and “findings of fact underlying the grant of an
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 67 of 123
12 ROSENBAUM, J., Dissenting 21-12729
injunction for clear error,” Am.’s Health Ins. Plans v. Hudgens, 742
F.3d 1319, 1329 (11th Cir. 2014).
And when, as here, constitutional rights are at stake, our def-
erence to the district court is great: even if “the underlying consti-
tutional question is close,” “we should uphold the injunction and
remand for trial on the merits.” Ashcroft v. ACLU, 542 U.S. 656,
664–65 (2004). So “if the district court’s analysis of the preliminary
injunction factors reflects a reasonable conclusion about a close
question of constitutional law,” “novel and difficult constitutional
questions [should be] settled at a later stage, with the benefit of fur-
ther factual and legal development” Gordon v. Holder, 721 F.3d
638, 644–45 (D.C. Cir. 2013), overruled on other grounds by South
Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2099 (2018); see also Valle
Del Sol Inc. v. Whiting, 709 F.3d 808, 817 (9th Cir. 2013).
We consider four factors when determining the propriety of
preliminary injunction relief: (1) whether the party seeking the in-
junction has shown a substantial likelihood of success on the mer-
its, (2) whether the party seeking the injunction will suffer irrepa-
rable harm without the injunction, (3) whether the balance of the
equities favors an injunction, and (4) whether an injunction serves
the public interest. Gonzalez v. Governor of Ga., 978 F.3d 1266,
1270–71 (11th Cir. 2020). “The third and fourth factors ‘merge’
when, as here, the government is the opposing party.” Id. at 1271(11th Cir. 2020) (cleaned up). Likelihood of success on the merits
“is ‘generally the most important’ of the four factors.” Id. at 1271
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 68 of 123
21-12729 ROSENBAUM, J., Dissenting 13
n.12 (quoting Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223,
1232 (11th Cir. 2005)).
III. The Dormant Commerce Clause
This deferential standard of review governs our considera-
tion of the district court’s conclusion that Section 381.00316(1), as
applied to the cruise industry, violates the Commerce Clause. The
Commerce Clause empowers Congress “to regulate commerce
with foreign nations, and among the several states, and with the
Indian tribes.” U.S. Const. art. I, § 8, cl. 3.
Besides conferring that power on Congress, the Clause also
invalidates state laws that “impos[e] substantial burdens” on inter-
state and foreign commerce. Dennis v. Higgins, 498 U.S. 439, 448
(1991) (citation and quotation marks omitted).20 We sometimes re-
fer to this “implicit restraint” of the Commerce Clause as the
“dormant” Commerce Clause. United Haulers Ass’n, Inc. v.
Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338, 343
20 This “dormant” aspect of the Commerce Clause also prohibits state action
that discriminates against interstate commerce. See, e.g., Fla. Transp. Servs.,
Inc. v. Miami-Dade Cnty., 703 F.3d 1230, 1243 (11th Cir. 2012). So we gener-
ally use a “two-tiered analysis” to evaluate state action challenged under the
dormant Commerce Clause. Id. Here, though, I agree with the Majority that
Section 381.00316(1) survives scrutiny under the first tier of that analysis—the
statute does not discriminate against out-of-state commerce. See Maj. Op. at
29. For that reason, I limit my discussion to the second tier, which focuses on
whether Section 381.00316(1) unduly burdens interstate commerce. See Fla.
Transp. Servs., 703 F.3d at 1244.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 69 of 123
14 ROSENBAUM, J., Dissenting 21-12729
(2007). The so-called dormant Commerce Clause invalidates state
legislation that “unduly burdens” interstate and foreign commerce.
Fla Transp. Servs., Inc., 703 F.3d at 1245.
Whether a law unduly burdens commerce turns on the bal-
ancing test that Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), sets
forth. Under that test, a state law violates the dormant Commerce
Clause when “the burden imposed on” foreign and interstate
“commerce is clearly excessive in relation to the putative local ben-
efits.” Id. at 142.
To state the obvious, the Pike balancing test is a balancing
test. So it’s worth emphasizing that, in evaluating whether Section
381.00316(1) survives that test, we must balance the burden that
the law imposes on interstate and foreign commerce against the
local benefits the law yields to further the State’s asserted interests.
Even if the state had a rational basis for believing its legislation
would accomplish a stated purpose, that is not enough, contrary to
the Majority Opinion’s suggestion, see Maj. Op. at 36, to uphold
the law under the Commerce Clause.21 Rather, even if the state
had a rational basis, we still must weigh the law’s local benefits
against the burden it imposes on commerce. Again, Pike imposes
a balancing test.
21 AsI explain later, see infra at 53–58, the Majority Opinion’s suggestion that
the second tier of the Pike test requires only rational-basis review on the local-
benefits side of the test is incorrect. See Maj. Op. at 37–38 (suggesting as
much).
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21-12729 ROSENBAUM, J., Dissenting 15
I begin with what we must balance on the state-interest side
(local benefits) of the scale. On this side of the balance, Pike and its
progeny require two inquiries. First, we must identify the true leg-
islative purpose of the law, and second, we must determine
whether and how much the law actually furthers the true purpose.
Starting with the first inquiry, we can often just accept a
state’s asserted purpose at face value. But we can’t do that when
the legislative scheme and history show that the state’s asserted
purpose “could not have been a goal of the legislation.” Clover
Leaf Creamery Co., 449 U.S. 456, 463 n.7 (1981) (quoting Wein-
berger v. Wiesenfeld, 420 U.S. 636, 648, n.16 (1975)); see also Locke
v. Shore, 634 F.3d 1185, 1194 (11th Cir. 2011) (accepting a state’s
asserted safety interest when “the legislative history confirm[ed]
that the legislature highlighted safety concerns”).
Pike shows how this inquiry works. There, Arizona en-
forced one of its laws in a way that prohibited a farming company
from transporting uncrated cantaloupes from its Arizona ranch to
its packing and processing facility in California. Pike, 397 U.S. at
138. That law’s “core” provision required that fruits shipped from
Arizona “be packed” so that the visible fruits did “not ‘materially
misrepresent’ the quality of the lot as a whole.” Id. at 142–43. The
“impetus” for that requirement was Arizona’s “fear that some
growers were shipping inferior or deceptively packaged produce,”
which caused “the reputation of Arizona growers” to suffer. Id. at
143. Arizona “stipulated that [the law’s] primary purpose [was] to
promote and preserve the reputation of Arizona growers”—which,
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16 ROSENBAUM, J., Dissenting 21-12729
in the abstract, the Supreme Court observed, were “surely legiti-
mate state interest[s].” Id.But as instructive here, the Court did not just accept Ari-
zona’s asserted interest and balance it against the burdens the law
imposed on commerce. Rather, the Court observed that “applica-
tion of the Act” to the farming-company plaintiff had “a far differ-
ent impact, and quite a different purpose.” Id. at 144. That farm-
ing company grew cantaloupes “of exceptionally high quality.” Id.So applying the law to this company—and thus preventing the
company from packing its fruit outside Arizona—did not serve “the
purpose of keeping the reputation of [Arizona] growers unsullied,”
id. Instead, this application “served to enhance” the “reputation”
of Arizona growers by informing consumers that the company’s
“high quality” cantaloupes were “grown in Arizona.” Id. And the
Court held that, though the law’s claimed purpose encompassed
“legitimate state interests[,]” id. at 143, “the State’s interest [as ap-
plied in that particular case was] minimal at best,” id. at 145–46. In
fact, that “tenuous interest” failed to justify even the “incidental
consequence” the law imposed on the farming-company plaintiff.
Id.Among other things, Pike teaches us we don’t just blindly
accept the state’s asserted interest. Rather, we must discern the
state’s interest by actually looking at the law as applied to the liti-
gant challenging the state’s law. Only then can we see what inter-
ests the state’s law serves in the particular context where it is being
challenged.
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 72 of 123
21-12729 ROSENBAUM, J., Dissenting 17
Once we discern the state’s interest as applied to the litigant
challenging the state’s law, we move to the second step of the “lo-
cal benefits” analysis. At this point, “the question becomes one of
degree.” Id. at 142. So we focus on how well the state’s law fur-
thers its purpose. In many cases, state laws “designed for” a “salu-
tary purpose” still fail under the Pike test because those laws “fur-
ther the purpose so marginally.” Kassel, 450 U.S. at 670 (plurality
opinion); see also id. at 691 (Rehnquist, J., dissenting) (explaining
that a State’s “asserted safety justification, although rational,” will
often fail under Pike when the law yields “safety benefits” that “are
demonstrably trivial”).
And the Supreme Court has repeatedly invalidated state
laws under the dormant Commerce Clause when those laws fur-
ther their purpose only marginally. In Raymond Motor Transpor-
tation, Inc. v. Rice, 434 U.S. 429 (1978), for example, the Court in-
validated a Minnesota highway safety law because the challengers
“produced a massive array of evidence to disprove the state’s asser-
tion that the regulations ma[de] some contribution to highway
safety.” Id. at 445.
The Court again invalidated a law that furthered its purpose
only marginally in Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520(1959). There, the Court invalidated an Illinois highway safety law
because the plaintiffs “conclusively show[ed]” that the law had no
safety “advantages,” and “testimony” revealed that the measure
“create[d] hazards previously unknown to those using the high-
ways.” Id. at 525. See also S. Pac. Co. v. Ariz. ex rel. Sullivan, 325
USCA11 Case: 21-12729 Date Filed: 10/06/2022 Page: 73 of 123
18 ROSENBAUM, J., Dissenting 21-12729
U.S. 761, 779 (1945) (invalidating Arizona safety measure that in-
creased hazards and afforded “at most slight and dubious” safety
benefits); Fla. Transp. Servs., Inc., 703 F.3d at 1261 (invalidating
County permitting practices that “did not further, but if anything
disserved, the County’s purported purposes and benefits”). As
these cases illustrate, a state’s interest is “illusory”—and accorded
only slight weight—when the record shows that the law furthers
its purpose only marginally. See Kassel, 450 U.S. at 671 (plurality
opinion); id. at 692 (Rehnquist, J., dissenting).
In sum, the state-interest side of the scale demands two in-
quiries. First, we discern the state’s true interest or purpose as the
law is applied. And second, we analyze how well the law furthers
those interests. We describe the product of these inquiries, taken
together, as the “local benefits” that flow from the state’s law.
Next, we balance those local benefits against the burdens the
law imposes on interstate and foreign commerce. In so doing, we
must remember that “the critical consideration is the overall effect
of the statute on both local and interstate activity.” Brown-Forman
Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986).
In this sense, striking a balance under Pike requires “a sensitive,
case-by-case analysis of purposes and effects,” South Dakota v.
Wayfair, Inc., 139 S. Ct. 2080, 2094 (2018) (quoting W. Lynn
Creamery, Inc. v. Healy, 512 U.S. 186, 201 (1994)).
Take Clover Leaf Creamery, for example—the case on
which the Majority Opinion effectively rests its analysis. In that
case, the Court reviewed a Minnesota law, which prohibited
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21-12729 ROSENBAUM, J., Dissenting 19
retailers from selling milk bottled in single-use plastic bottles, un-
der both the Equal Protection and Commerce Clauses. 449 U.S. at
458. The parties agreed that the State’s asserted interests of con-
serving resources and easing waste-disposal problems “[we]re legit-
imate state purposes.” Id. at 462. In its equal-protection analysis,
the Court applied rational-basis review and sustained the law be-
cause the State’s ban on single-use plastic milk containers bore “a
rational relation to the State’s objectives.” Id. at 470.
Then the Court turned to the dormant Commerce Clause
analysis. That analysis, unlike the Equal Protection Clause analy-
sis, required a balancing of the local benefits against the burdens
the law imposed on interstate commerce. The Court determined
that the “burden imposed on interstate commerce by the statute
[was] relatively minor.” Id. at 472. Emphasizing just how minimal
that burden was, the Court noted that the law required only that
milk producers package their products in something other than sin-
gle-use plastics—say, cardboard, or glass, or recyclables. And
“most dairies package[d] their products in more than one type of
container,” anyway. Id. So that burden, the Court explained, was
“not ‘clearly excessive’ in light of the substantial state interest in
promoting conservation of energy and other natural resources and
easing solid waste disposal problems.” Id. at 473.
Under those circumstances, it made no difference that the
law bore only a rational relation to the state’s legitimate interest.
And that, of course, makes sense: when a law imposes only a mi-
nor burden on commerce, that law “cannot” inflict “a burden on
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20 ROSENBAUM, J., Dissenting 21-12729
interstate commerce that is ‘clearly excessive in relation to the pu-
tative local benefits’ under Pike.” Nat’l Ass’n of Optometrists &
Opticians v. Harris, 682 F.3d 1144, 1155 (9th Cir. 2012). And “we
need not examine the actual putative benefits of the challenged
statute[].” Id. By logical extension, then, a law that imposes only
a minor burden on commerce will necessarily survive review un-
der the Commerce Clause if it also survives rational-basis review
under the Equal Protection Clause (as was the case in Clover Leaf
Creamery).
But that calculus changes when the law inflicts real burdens
on commerce. See Pike, 397 U.S. at 140 (invalidating Arizona’s law
because it imposed an excessive burden on interstate commerce by
requiring a farmer to “build packing facilities” at a “cost” of “ap-
proximately $200,000”). In that case, we must carefully consider
the local benefits that the state law returns and weigh them against
its burdens. See Town of Southold v. Town of E. Hampton, 477
F.3d 38, 52 (2d Cir. 2007) (explaining the need to “remand[] for fur-
ther discovery or trial where a party has offered a credible expert
affidavit alleging a burden on interstate commerce and challenging
the proposed benefits of the law.”). Greater burdens on commerce
require greater local benefits. Pike, 397 U.S. at 142.
And when the state’s law also burdens foreign commerce,
even a relatively minor burden can invalidate the law. Under those
circumstances, we must apply the “well-accepted rule that state re-
strictions burdening foreign commerce are subjected to a more rig-
orous and searching scrutiny.” S.-Cent. Timber Dev., Inc. v.
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21-12729 ROSENBAUM, J., Dissenting 21
Wunnicke, 467 U.S. 82, 101 (1984). Here, as I’ve explained, see su-
pra Section I, there’s no question that Section 381.00316(1) burdens
foreign commerce and relations.
Even the Majority Opinion concedes that this rule of scru-
tiny applies to “restraint[s] on imports and exports.” Maj. Op. at
53. And of course, the cruise industry exports tourism when it an-
nually takes millions of passengers from the United States to ports
and cities around the world.22 Section 381.00316(1) restrains that
export by requiring cruise ships to carry unvaccinated passengers.
As I’ve mentioned, that restraint is incredibly burdensome: cruises
must, for example, allocate additional resources to their onboard
medical facilities because those facilities are more likely to become
inundated with COVID-19 outbreaks.
Plus, local populations in foreign countries—many of whom
“lack access to healthcare and other resources” needed to combat
COVID-19, Del Rio Aff. ¶ 19—must endure heightened COVID-19
transmission rates because cruise ship from Florida must carry
22 SeeStatista, Cruise industry in the United States—statistics & facts (July 18,
2022), https://www.statista.com/statistics/1251080/number-of-cruise-pas-
sengers-from-north-america/ (noting that more than 15 million cruise passen-
gers left from ports in North America in 2019). Indeed, PortMiami is the
Cruise Capital of the world. See PortMiami, Florida Ports Council,
https://flaports.org/ports/portmiami/. “Port Canaveral is perhaps best
known as the second busiest cruise port in the world,” see Port Canaveral,
Florida Ports Council, https://flaports.org/ports/port-canaveral/. And Port
Everglades is the third busiest cruise port in the world. Port Everglades, Flor-
ida Ports Council, https://flaports.org/ports/port-everglades/.
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22 ROSENBAUM, J., Dissenting 21-12729
unvaccinated passengers to those locations. Then, after their
cruises, when passengers from around the world return home,
those who’ve contracted COVID-19 spread it to others on their
journeys home and in their communities. And as I’ve explained,
COVID-19 and long COVID inflict a huge toll not just on the cruise
lines in these ways but also on commerce around the world—by
removing workers from the supply chain and consumers from the
market. For these reasons, we must subject Florida’s law “to a
more rigorous and searching scrutiny.” Wunnicke, 467 U.S. at 101.
When we do that, as I explain in Sections IV and V, we must
conclude that Section 381.00316(1) cannot survive dormant Com-
merce Clause scrutiny under the Pike balancing test.
IV. The local benefits Section 381.00316(1) delivers are minimal
at best in the context of the cruise industry.
In defense of its law, Florida asserts as the law’s purposes (1)
“preventing discrimination” against and (2) “promoting privacy”
for those who wish not to disclose their COVID-19 vaccine docu-
ments. Fla.’s Initial Br. at 29. On that basis, both Florida and the
Majority Opinion describe Section 381.00316(1) as a regulation of
“health and safety.” Fla.’s Initial Br. at 40; Maj. Op. at 53. From
there, the Majority Opinion concludes that we owe “strong defer-
ence to the Florida Legislature” because Florida “could rationally
have decided” that its law yields the putative benefits that the state
proffers. See Maj. Op. at 36 (quoting Clover Leaf Creamery, 449
U.S. at 461–70); see also id. at 42.
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21-12729 ROSENBAUM, J., Dissenting 23
That approach is backwards. As I explain in Subsection A,
we grant state laws “strong deference” only when they actually
promote health and safety. Section 381.00316(1) does no such
thing. So the “strong deference” we reserve for health-and-safety
regulations does not attach to Section 381.03316(1). And while
Florida’s asserted interests in preventing discrimination and pro-
tecting privacy are legitimate state interests in theory, they are both
illusory on this record as applied to the cruise industry, which I ex-
plain in Subsections B and C, respectively.
A. Although Florida describes Section 381.00316(1) as an exercise
of police power to safeguard the public health and safety, it is
not a law that furthers genuine health and safety interests, as
the law yields no safety benefits, but meaningfully increases
hazards as it applies to the cruise industry.
The Majority Opinion first goes awry by extolling Florida’s
law as a regulation of health and safety, a status it then uses to cloak
the law with the “strong deference” that we ordinarily reserve for
laws that actually promote public health and safety. Yet even the
Majority Opinion knows it can’t reasonably characterize Section
381.00316(1)—which facilitates the spread of COVID-19—as a reg-
ulation that furthers health and safety. See Maj. Op. at 34–35 (im-
plicitly conceding that Section 381.00316(1) does not further “phys-
ical health and safety”). So after granting Section 381.00316(1)
“strong deference” as if that law furthers a genuine interest in pro-
moting health and safety, the Majority Opinion then promptly dis-
owns any safety-and-health purpose attributable to Florida’s law.
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24 ROSENBAUM, J., Dissenting 21-12729
Instead, it explains, Florida’s law need not actually “promote resi-
dents’ physical health and safety” to be an exercise of the police
power to safeguard public health and safety. Id. at 34. The illogic
of this “logic” speaks for itself.
Apparently sensing this, the Majority Opinion makes an-
other move: it argues that Florida’s law promotes “residents’ eco-
nomic health and safety,” so it is entitled to the “strong deference”
generally reserved for regulations that genuinely protect health
and safety. Id. at 35. But that’s just wrong. And it enables the
Majority Opinion to impermissibly hide the ball.
Florida certainly has a legitimate interest in promoting its
residents’ economic well-being. But that interest, by itself, does
not necessarily warrant “strong deference” for the purpose of the
dormant Commerce Clause analysis like a state’s interest in pro-
moting its residents’ health and safety does. Rather, the Majority
Opinion’s sleight-of-hand improperly cloaks Florida’s interest in
furthering Floridians’ economic well-being with the deference
meant for a state’s interest in promoting its residents’ physical
health and safety. And that illegitimate move proves outcome-de-
terminative for the Majority Opinion’s analysis.
To be sure, the Majority Opinion later acknowledges “the
evidence” that Norwegian “will suffer economically if it complies
with section 381.00316(1).” Maj. Op. at 48. But it upholds Florida’s
law by relying on the “strong presumption of validity” that the
dormant Commerce Clause reserves for laws that actually pro-
mote public health and safety. Id. Yet that “strong presumption of
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21-12729 ROSENBAUM, J., Dissenting 25
validity” disappears once we establish that Florida’s law does not
further health and safety.
i. Although regulations that meaningfully further health and
safety warrant strong deference for the purpose of the
dormant Commerce Clause analysis, economic-well-being
regulations do not necessarily justify that same strong defer-
ence.
A law that promotes Floridians’ economic well-being does
not necessarily warrant the same deference that a law that mean-
ingfully promotes Floridians’ health and safety does. As the Su-
preme Court has explained, a statute “directly addressed to the pro-
tection of public health,” which “falls within the most traditional
concept” of a state’s police power, differs from a statute that a state
labels “a health measure on the attenuated theory that” it promotes
the “economic well-being” of its residents. Head v. New Mexico
Bd. of Exam’rs in Optometry, 374 U.S. 424, 428 & n.4 (1963); see
also Raymond Motor Transp., 434 U.S. at 448–449 (Blackman, J.,
concurring) (explaining that a state’s economic interests receive
less deference than a state’s safety interest under Pike).23
In fact, this basic distinction explains the outcome in Pike—
the fruit-shipping case. Arizona’s asserted interest in Pike did “not”
implicate “state legislation in the field of safety where the propriety
of local regulation has long been recognized.” 397 U.S. at 143.
23Chief Justice Burger and Justices Brennan and Rehnquist joined Justice
Blackman’s concurrence. Justice Stevens did not participate in the case.
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26 ROSENBAUM, J., Dissenting 21-12729
Rather, Arizona asserted an economic well-being justification to
“preserve the reputation of Arizona growers by prohibiting decep-
tive packaging” because some growers were hiding rotten fruit in
packaging where it was not visible. Id. at 142–43. But the farming-
company plaintiff packed high-quality produce. Id. So applying
the law’s requirement that the fruit be packaged in Arizona to that
company enhanced (rather than preserved) Arizona’s reputation
for produce. And the Court held that this particular “interest [was]
minimal at best—certainly less substantial than a State’s interest in
securing employment for its people.” Id. at 146.
To summarize, then, the Pike Court distinguished not only
between laws promoting safety and those promoting economic
well-being, but also between different laws promoting economic
well-being and even between the different economic well-being in-
terests that a single law protected. In this respect, the Pike Court
found some economic interests are more important—and there-
fore more worthy of deference—than others. The upshot of this is
that, contrary to the Majority Opinion’s suggestion, no one-size-
fits-all approach exists for affording weight to a state’s economic-
well-being justifications.
Nor can the Majority Opinion’s misleading citation clauses
alter this principle. The Majority Opinion Frankensteins citations
together to justify its conclusion that “strong deference” applies
with equal force to laws that meaningfully further health and safety
and those that further economic well-being—meaningfully or not.
See Maj. Op. at 34. In so doing, the Majority Opinion creates its
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21-12729 ROSENBAUM, J., Dissenting 27
own monster of a rule that robotically accords “strong deference”
to any state interest that is conceivably related to the state’s resi-
dents’ well-being in any way. But that bloated view of a state’s po-
lice powers is wrong.
We agree, the Majority and I, that a state has a quasi-sover-
eign interest—rather than a proprietary or sovereign interest—in
the “well-being” of its citizens. Id. at 31 (citing Alfred L. Snapp &
Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 609 (1982)). And
a state’s “quasi-sovereign” interest encompasses its citizens’ eco-
nomic and physical well-being. Barez, 458 U.S. at 609. But a state’s
“quasi-sovereign” interest merely invests it with “standing under
the parens patriae doctrine.” Id. That fact is totally separate from
and unrelated to the deference we afford to different interests in a
dormant Commerce Clause analysis.
In the dormant Commerce Clause context, the Supreme
Court has told us to give greater deference to regulations that
meaningfully further health and safety than to economic-well-be-
ing regulations—to treat, in other words, these two interests differ-
ently. As the Court has noted, there is “no field” where “deference
to state regulation has been greater than that of highway safety reg-
ulation.” Raymond Motor Transp., 434 U.S. at 443. And in Pike,
as I just discussed, the Court distinguished “state legislation in the
field of safety” from state legislation designed to enhance the eco-
nomic well-being of its residents. 397 U.S. at 143. It further distin-
guished among the strengths of different economic-well-being in-
terests.
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28 ROSENBAUM, J., Dissenting 21-12729
In sum, Pike requires “a sensitive, case-by-case analysis of
purposes and effects,” Wayfair, 139 S. Ct. at 2094 (quoting Healy,
512 U.S. at 201). And the Majority Opinion’s one-size-fits-all ap-
proach, which accords strong deference upon a state’s “incantation
of a purpose to promote” its residents’ well-being in any conceiva-
ble way, Kassel, 450 U.S. at 670, contradicts the Supreme Court’s
distinction between a state’s interests in meaningfully promoting
health and safety and in promoting different types of economic
well-being. So even assuming that Section 381.00316(1) furthers
Floridians’ economic well-being, it does not follow that “strong
deference” attaches to that law unless it meaningfully advances
health and safety.
And regardless of whether we view the distinction between
meaningful health-and-safety regulations, on the one hand, and
economic regulations, on the other, as a feature or flaw, it is an
essential element of our constitutional system. Of course, “[e]co-
nomic welfare is always related to health, for there can be no health
if men are starving.” Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511,
523 (1935) (Cardozo, J.). But even so, the “chief occasion” for the
Commerce Clause was to invest the federal government—not the
several states—with power to regulate the national economy. Id.
at 522. “This principle that our economic unit is the Nation, which
alone has the gamut of powers necessary to control the economy,”
has a corollary: “the states are not separable economic units.” H.P
Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537–38 (1949) (Jack-
son, J.). And if we recede from that principle and necessarily accord
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21-12729 ROSENBAUM, J., Dissenting 29
“strong deference” to states’ economic-welfare justifications, see
Maj. Op. at 34, we will “invite a speedy end of our national solidar-
ity.” Baldwin, 294 U.S. at 523.
To preserve that national solidarity, we must distinguish be-
tween regulations that meaningfully further health and safety,
which warrant “strong deference,” and economic well-being regu-
lations, which are more likely to unduly burden interstate and for-
eign commerce. Florida’s law is not one that meaningfully furthers
health and safety (just the opposite). So it does not necessarily de-
mand the “strong deference” that the Majority Opinion surrenders
to the state.
ii. Florida’s law does not warrant strong deference because it
does not meaningfully advance health or safety and in fact
harms them.
That said, both Florida and the Majority Opinion describe
Section 381.00316(1) as an exercise of the state’s “traditional police
power” to safeguard both the “public health and safety and the eco-
nomic well-being of its citizens,” meaning that we must analyze
both interests under Pike. Fla.’s Initial Br. at 1, 40; see also Maj.
Op. at 35. They make this move, it seems, because the Supreme
Court “has been most reluctant to invalidate” “regulations that
touch upon safety,” id. at 34 (quoting Kassel, 450 U.S. at 670); see
also Fla.’s Initial Br. at 40. But Section 381.00316(1) is no safety
regulation.
As I’ve noted, Pike requires that we scrutinize the legisla-
ture’s actual interest—not simply accept its stated interest at face
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30 ROSENBAUM, J., Dissenting 21-12729
value. Clover Leaf Creamery Co., 449 U.S. at 463 n.7. And no one
can seriously contend that Section 381.00316(1) furthers the pub-
lic’s health or safety. On the contrary, the law, which makes it im-
possible for cruise lines to ensure their passengers are vaccinated,
endangers the health and safety of Norwegian’s passengers and the
community at large. After all, the district court found that vaccines
“reduce the risk of transmission from a fully vaccinated person by
80 to 90 percent.” Norwegian, 553 F. Supp. 3d at 1150. As Del Rio
tells it, vaccination is the “most effective way to protect passengers,
crews, and locals from the spread of COVID-19.” Del Rio Aff. ¶ 27.
So, he said, “verifying the vaccination status of cruise passengers”
is the best safeguard against COVID-19 transmission aboard the
company’s cruises.24 Del Rio Aff. ¶ 26. By removing this tool from
the cruise industry, Section 381.00316(1) ensures more transmis-
sion of COVID-19 and decreases public safety.
We, of course, owe deference to the district court’s factual
findings. But it’s not just the district court and Del Rio who think
vaccination plays a critical role in stemming COVID-19 transmis-
sion. Scientific evidence verifies the important role that vaccina-
tion plays in stemming the transmission of COVID-19—especially
in close quarters like cruise ships. See supra at pp. 8–9.
24 To be sure, the district court found that “testing is an important adjunct
measure.” Norwegian, 553 F. Supp. 3d at 1174. But it concluded that testing
“cannot serve as a substitute for vaccination because tests are susceptible to
false positive and false negative results, even when repeated testing is done.”
Id.
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21-12729 ROSENBAUM, J., Dissenting 31
Plus, here, the legislative history confirms that Florida nei-
ther consulted with medical experts nor reviewed scientific evi-
dence when it enacted Section 381.00316(1). For example, during
floor debates, Florida Senator Danny Burgess, who introduced the
amendment that ultimately became Section 381.00316(1), see S.B.
2006, Amendment 330036, 2021 Leg. Sess. (Fla. 2021), resisted ref-
erence to any health- or safety-related evidence, reminding his col-
leagues at least twice that he had “no medical background.” See,
e.g., Senate Session, FLA. SENATE, at 6:20:51–6:20:56 (Apr. 29, 2021),
https://www.flsenate.gov/media/VideoPlayer?Even-
tID=1_q42x9ekw-202104291000&Redirect=true. When Senator
Doug Broxson asked,
“I think most of us feel fairly confident that the vac-
cine is working, so technically . . . if you go on a cruise
ship and 95% of the people have taken the vaccine,
the 5% that did not would be exposing the other 5%.
Is that a fair analogy, that what we’re doing is letting
people that choose not to have a vaccine to be ex-
posed by the other people who are choosing not to
have a vaccine?”
Id. at 6:34:30–6:35:03. Senator Burgess responded, “Again, not hav-
ing a medical background but understanding kind of the . . . maybe
unscientific approach, I would agree. I think that’s fair.” Id. at
6:35:09–6:35:19 (emphasis added).
But unfortunately, Senator Broxson got the science wrong:
unvaccinated people transmit COVID-19 to both unvaccinated and
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32 ROSENBAUM, J., Dissenting 21-12729
vaccinated people. See Fisman, supra. And unvaccinated people
infect more people, on a pro rata basis, than vaccinated people. See
id. So Senator Broxson was mistaken: the bill doesn’t just facilitate
transmission of COVID-19 from unvaccinated people to other un-
vaccinated people—it also facilitates transmission of COVID-19
from unvaccinated people to vaccinated people.
In this respect, this case is just like Raymond Motor Trans-
portation, where the Court invalidated Wisconsin’s so-called high-
way-safety regulation because “a massive array of evidence” dis-
proved “the State’s assertion that the regulations ma[d]e some con-
tribution to highway safety.” 434 U.S. at 444. In an even more
extreme way, the evidence here shows that Section 381.00316(1)
does not safeguard the public health and safety but rather jeopard-
izes it.
But Section 381.00316(1)’s violation of the dormant Com-
merce Clause is even more obvious than that of the law at issue in
Raymond Motor Transportation. There, Wisconsin’s asserted in-
terest was “promot[ing] highway safety.” Id. at 442. And as the
Supreme Court explained, there is “no field” where “deference to
state regulation has been greater than that of highway safety regu-
lation.” Id. at 443. Section 381.00316(1), though, is not a health-
and-safety regulation—let alone a highway-safety regulation. So it
is entitled to less deference than the “safety regulation” in Ray-
mond Motor Transportation.
Even if we assumed that same deference attached to Section
381.00316(1), though, a “massive array of evidence” still
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21-12729 ROSENBAUM, J., Dissenting 33
“disprove[s] the State’s assertion that the regulations make some
contribution” to health and safety. Instead, Section 381.00316(1)
undermines public health and safety. Id. at 444. So Section
381.00316(1) cannot seriously be described as a “bona fide safety
regulation[.]” Kassel, 450 U.S. at 670 (plurality opinion). And Flor-
ida’s asserted interest in “safeguarding public health and safety,”
Fla.’s Initial Br. at 1, is therefore “illusory,” Kassel, 450 U.S. at 671(plurality opinion); see also id. at 691 (Rehnquist, J., dissenting).
B. Section 381.00316(1) does not prevent discrimination.
I next turn to Florida’s first of two asserted interests in pro-
moting the economic well-being of its citizens. Florida first asserts
an interest in “preventing discrimination for failure to provide doc-
umentation evidencing COVID-19 vaccination.” Fla.’s Initial Br. at
2–3. But as I’ve noted, the first task in evaluating a state’s interest
under Pike is to discern the state’s true interest. That is key here
because “discrimination” can connote several meanings. See, e.g.,
Discrimination, Black’s Law Dictionary (11th ed. 2019); Bryan A.
Garner, Garner’s Modern English Usage 287–88 (4th ed. 2016).
And identifying the accurate use of the term here transforms the
rest of the analysis.
Skipping that step, the Majority Opinion equates discrimina-
tion based on vaccination status with “invidious discrimination”
that “frequently occurs along ethnic lines.” See Maj. Op. at 30–31
(quoting Barez, 458 U.S. at 609); Barez, 458 U.S. at 609. From there,
the Majority Opinion assumes parity between Florida’s interest in
remedying noninvidious discrimination based on vaccination
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34 ROSENBAUM, J., Dissenting 21-12729
status and a state’s interest in remedying invidious discrimination
based on ethnicity. No matter the evil, the Majority announces, a
state’s interest in remedying “discrimination” is always “substan-
tial” and always “weightier” than a mere “legitimate” interest. Maj.
Op. at 31.
But the problem for the Majority Opinion is that, as Black’s
Law Dictionary unambiguously explains, invidious discrimination
and noninvidious discrimination are two entirely different things.
See Discrimination, Black’s Law Dictionary, supra; Garner, supra,
at 287–88. And the weight of a state’s interest in remedying dis-
crimination varies “depend[ing] on the nature” of the discrimina-
tion in need of remedying. Pike, 397 U.S. at 142. After all, the
“question” of how much weight to accord a state’s legitimate inter-
est is necessarily “one of degree.” Id. That makes it crucial to dis-
cern the type of discrimination that Florida’s law tries to remedy
before assigning weight to Florida’s interest in remedying discrim-
ination.
I start by defining “discrimination.” In the dictionary sense,
discrimination connotes the “intellectual faculty of noting differ-
ences and similarities.” Discrimination, Black’s Law Dictionary,
supra (definition 1). That use of “‘discrimination’ is neutral” and
not in any way considered pejorative. Id. But “the current political
use of the term is frequently non-neutral, pejorative.” Id.
On that score, Black’s Law Dictionary defines “discrimina-
tion” in the pejorative sense in two ways: (1) “The effect of a law
or established practice that confers privileges on a certain class or
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21-12729 ROSENBAUM, J., Dissenting 35
that denies privileges to a certain class because of race, age, sex,
nationality, religion, or disability”; and (2) “Differential treatment;
esp., a failure to treat all persons equally when no reasonable dis-
tinction can be found between those favored and those not fa-
vored.” Id. (definitions 2 and 3).
i. Florida’s law does not remedy discrimination based on race,
age, sex, nationality, religion, or disability.
At times, both Florida and the Majority Opinion seemingly
invoke the first of those pejorative uses of the term, suggesting that
Florida’s interest lies in remedying discrimination against its “mi-
nority populations” because those communities are more likely to
face vaccine hesitancy. See Maj. Op. at 38; see also id. at 7, 45; Fla.’s
Initial Br. at 29, 45 (“Through the statute, Florida is protecting its
vulnerable minority populations . . . .”). But even though some
“minority populations” have faced discrimination from certain
parts of the medical community for decades, thus understandably
prompting vaccine hesitancy of some in those populations, it’s hard
to take this description of Florida’s interest at face value given the
evidence (or more accurately, lack of it) supporting that assertion.
That evidence, on which Florida and the Majority Opinion
rely exclusively, is a single comment Representative Tom Leek
made on the legislature’s floor on April 28, 2021. Aside from that
remark, the legislative history lacks any evidence that the state in-
tended Section 381.00316(1) as antidiscrimination legislation to
protect Florida’s “minority populations.” No other representative
or senator made comments to that effect. Nor do any one of the
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36 ROSENBAUM, J., Dissenting 21-12729
six analyses of SB 2006 (the bill that became Section 381.00316)
from the Florida Senate’s Committees on Rules, Appropriations,
and Military and Veterans Affairs, Space, and Domestic Security
say the first thing about protecting Florida’s “minority popula-
tions,” even though many of those analyses discuss the bill’s pur-
ported intent.
And Representative Leek disavowed any such legislative in-
tent the day before he made the statement on which Florida and
the Majority Opinion rely as proof that Florida enacted Section
381.00316(1) to protect its minority populations. During the
House session on April 27, 2021, the following exchange occurred
when Representative Michael Grieco asked Representative Leek
about the provision that eventually became Section 381.00316(1):
Grieco: Chair Leek, are you familiar with what is a pro-
tected class for purposes of private businesses
being unable to discriminate against them?
Leek: . . . That’s outside the scope of this bill, but the
answer is yes, I’m familiar.
Grieco: With that familiarity, specifically as it applies to
people that can’t be discriminated [against]
based on age, disability, gender, race, religion,
are you familiar with anywhere else in state
statute where we have created a new protected
class that has not been addressed through con-
stitutional law?
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21-12729 ROSENBAUM, J., Dissenting 37
Leek: We’re pretty far afield from what’s in this bill.
But there are protected classes created by fed-
eral law, state law, etc. So I hope that ad-
dresses your question. Just understand: that is
not addressed in this bill.
House Session, FLA. HOUSE REPRESENTATIVES, at 3:00:16–
OF
3:01:17 (Apr. 27, 2021) (emphasis added),
https://www.flsenate.gov/media/VideoPlayer?Even-
tID=1_ggkot7ka-202104271030&Redirect=true. In other words,
Representative Leek appeared to deny that the bill’s purpose is to
protect Florida’s “minority populations” from discrimination. In
fact, Representative Leek said, “That’s outside the scope of this
bill,” “We’re pretty far afield from what’s in this bill,” and “That is
not addressed in this bill.” Three times Representative Leek de-
clined to link what became Section 381.00316(1) with protecting
“minority populations.” But see Maj. Op. at 39–40 (selectively
quoting Representative Leek to avoid grappling with this fact).25
25 No one disputes that Florida “may recognize new protected classes beyond
federal law.” Maj. Op. at 46. But Representative Leek, whom the Majority
Opinion relies on exclusively to discern Florida’s legislative intent, explicitly
denied doing so. On the contrary, he explained that recognizing a new pro-
tected class beyond federal law was “not addressed in this bill,” and the Major-
ity Opinion twice concedes as much. Id. at 40 (“[T]he creation of a new pro-
tected class is not addressed in the bill[.]”); id. at 44 (“Section 381.00316(1) does
not involve a constitutionally protected class[.]”). By ignoring what Repre-
sentative Leek actually said and attributing that purpose to Florida’s law, any-
way, the Majority Opinion “substitutes its own intuitions” for those of the
Florida legislature. Id. at 46. Even so, even assuming (contrary to
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38 ROSENBAUM, J., Dissenting 21-12729
To reiterate, then, the contention that Florida enacted Sec-
tion 381.00316(1) as civil-rights legislation to protect “minority
populations” relies exclusively on Representative Leek’s statement,
which he made the day after disavowing any link between Florida’s
law and discrimination based on age, disability, gender, race, or re-
ligion. To be sure, I do not attribute “legislative mendacity” to
Representative Leek for his contradictory statement the next day.
Maj. Op. at 40. On the contrary, I assume that Representative Leek
reflected on Representative Grieco’s question the prior day and
then concluded and asserted in good faith the next day that the bill
protects “minority populations.” There’s certainly nothing wrong
with that.
But Representative Leek’s individual revelation doesn’t
make protecting “minority populations” the intent of the Florida
legislature in enacting Section 381.00316(1). Nothing else from the
legislative record—neither from the multiple floor debates, Com-
mittee reports, nor any other part of the legislative history—echoes
Representative Leek’s statement on April 28 that the intent of the
statute was to protect “minority populations.” And “[w]hat
Representative Leek’s repeated denials) that Florida had recognized a new
protected class beyond those recognized by federal law, the law creating that
class would still have to comply with the Constitution and federal law. See,
e.g., U.S. Const. art. VI. So even if Florida passed a law recognizing a new
protected class for unvaccinated persons, that law would be unconstitutional
if it imposed burdens on commerce that clearly exceeded its benefits. Pike,
397 U.S. at 142. The Majority Opinion “ignores” these “basic point[s].” Maj.
Op. at 46.
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21-12729 ROSENBAUM, J., Dissenting 39
motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it.” Dobbs v.
Jackson Women’s Health Org., 142 S. Ct. 2228, 2255 (2022) (cita-
tion and quotation marks omitted). After all, one legislator’s re-
considered view alone is not the legislature’s view.
Rather than engage with this truth, the Majority Opinion
faults me for “ignoring the fact that [Representative Leek] was the
‘chief sponsor of the bill in the House of Representatives,” Maj. Op.
at 40 (quoting Clover Leaf Creamery, 449 U.S. at 467). Yet even
the case on which the Majority Opinion relies for that claim shows
that a single legislator—even a bill’s chief sponsor—does not speak
for the legislature. See Clover Leaf Creamery, 449 U.S. at 467 (cit-
ing statements from three senators on top of a statement from the
bill’s chief sponsor in the House to divine legislative purpose). In-
deed, as the Supreme Court has explained, relying “on a single
statement made on the floor of the House of Representatives” to
“divine” legislative purpose, even in the Commerce Clause con-
text, “is an exercise fraught with hazards,” New England Power
Co. v. New Hampshire, 455 U.S. 331, 341–42 (1982). And that is
especially so when, as here, the bill’s sponsor so clearly comes to
his revelation about the bill’s purpose for the first time after the bill
has left the committee.
So while a dormant Commerce Clause analysis necessarily
relies in part on legislative history, this particular use of legislative
history is the very evil that Justice Scalia warned against when he
explained that “Judge Harold Leventhal used to describe the use of
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40 ROSENBAUM, J., Dissenting 21-12729
legislative history as the equivalent of entering a crowded cocktail
party and looking over the heads of the guests for one’s friends,”
Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concur-
ring)—or more accurately in this case, for “one’s [sole and fair-
weather] friend[].” Justice Scalia would be disappointed.
The Majority Opinion responds to that criticism with a non
sequitur: It’s permissible, we are told, to rely on a single legislator’s
statement—which contradicted that legislator’s statement from
the day before—as evidence of the legislature’s purpose (even
though the legislature is composed of 160 legislators) because the
Majority Opinion uses that evidence not “to determine what the
statute means but to ensure that it serves a constitutional purpose.”
Maj. Op. at 39. That makes no sense.26 The whole point here is to
identify the intent of the legislature—no matter how the Majority
Opinion describes our exercise.27 And Justice Scalia’s concern was
26 It’s also misleadingly imprecise. To be sure, in performing the Pike dormant
Commerce Clause balancing test, we look to see whether the law has a con-
stitutional purpose in that if the law passes the balancing test, it comports with
constitutional requirements under the dormant Commerce Clause. But our
inquiry under the local-benefits side of the Pike balancing test is not whether
the state’s purpose was constitutional in a generic sense. Even assuming it
was, the state’s purpose can still fail the Pike balancing test. That is so because,
as I’ve explained, once we identify the state’s actual interest as applied to the
complaining plaintiff, we must weigh the benefits that flow from the nature
of that interest against the burdens the law imposes on commerce.
27 TheMajority Opinion insists that New England Power proves that there’s
something meaningfully different about relying on a single legislator’s re-
marks to ascertain the legislative purpose when evaluating the local benefits
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21-12729 ROSENBAUM, J., Dissenting 41
that a single legislator’s statement (even when he doesn’t say the
opposite the preceding day) does not reveal the entire legislature’s
intent. And it’s hard to imagine a more graphic illustration of the
problem Justice Scalia pointed out than the Majority Opinion’s ef-
forts to identify the Florida legislature’s intent based solely on one
of two contradictory statements a single representative made on
the floor.
At bottom, there is no evidence that the legislature’s intent
in enacting Section 381.00316(1) was to prevent discrimination
against Florida’s minority populations.
ii. Nor does Florida’s law remedy any other type of invidious
discrimination.
Nor does the second pejorative use of the term “discrimina-
tion” capture the interest that Florida asserts. To reiterate, that
definition describes the “failure to treat all persons equally when
no reasonable distinction can be found between those favored and
those not favored.” Discrimination, Black’s Law Dictionary, supra
(definition 3) (emphasis added); see also CSX Transp., Inc. v.
to the state under the Pike balancing test versus when determining what a
statute means. See Maj. Op. at 39. It misses the point. Of course, we often
do not rely at all on legislative history in ascertaining statutory intent, while
the Pike balancing test requires us to consider legislative history in identifying
the local benefits to the state. But that difference does not change the fact
that—no matter the context in which it is wielded—a single legislator’s uncor-
roborated (and self-contradictory) statement simply cannot speak for the in-
tent of the legislature as a whole. Not surprisingly, the Majority Opinion cites
absolutely nothing for its novel premise to the contrary.
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42 ROSENBAUM, J., Dissenting 21-12729
Alabama Dep’t of Revenue, 562 U.S. 277, 287 (2011) (describing this
definition as the “ordinary meaning” of discrimination). Applying
this definition of “discrimination,” the Supreme Court hypothe-
sized that taxing “one group of taxpayers a 2% rate and another
group a 4% rate, if the groups are the same in all respects, is to
discriminate against the latter.” Id. (emphasis added). And of
course, remedying this type of invidious discrimination is a sub-
stantial state interest.
But that’s not a problem here. In fact, the record lacks any
evidence of businesses’ use of vaccination status as a proxy for a
person’s disability, religion, or race. Rather, the evidence estab-
lished that Norwegian sought proof of passengers’ vaccination sta-
tuses only because that is the “most effective way to protect pas-
sengers, crews, and locals from the spread of COVID-19.” Del Rio
Aff. ¶ 27. Put simply, differential treatment because of vaccination
status rests on a “reasonable distinction” between vaccinated and
unvaccinated people. Discrimination, Black’s Law Dictionary, su-
pra (definition 3). The distinction is reasonable because unvac-
cinated people are substantially more likely to transmit COVID-19
than vaccinated people, especially in the context of a cruise ship.
See Norwegian, 553 F. Supp. 3d at 1150.
Ignoring the reason behind Norwegian’s distinction be-
tween vaccinated and unvaccinated passengers, the Majority Opin-
ion appears to incorrectly suggest that Florida enacted Section
381.00316(1) to protect against invidious discrimination against un-
vaccinated people. Maj. Op. at 46; see also id. at 31. But this
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21-12729 ROSENBAUM, J., Dissenting 43
betrays a misunderstanding of invidious discrimination—that is,
discrimination when no reasonable distinction can be found be-
tween those favored and those not favored. See Loving v. Virginia,
388 U.S. 1, 10 (1967) (equating “invidious discrimination” with “ar-
bitrary . . . discrimination”). Nor does the Majority Opinion mar-
shal any evidence in the record to prove otherwise. The record is
bereft, for example, of any evidence that Norwegian desires to act
with “class-based, invidiously discriminatory animus” towards un-
vaccinated passengers. Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263, 272–73 (1993) (citation omitted). That’s so because
Norwegian’s distinction between vaccinated and unvaccinated pas-
sengers is “reasonable rather than arbitrary and invidious.”
McLaughlin v. Florida, 379 U.S. 184, 191 (1964). Norwegian’s dis-
tinction rests on the science of infectious-disease transmission.
Consider again why Norwegian would draw such a distinc-
tion: when hundreds of passengers, including unvaccinated pas-
sengers, congregate onboard a cruise to eat, socialize, and vacation
in close quarters for several days, that translates to more COVID-
19 cases than would be the case without vaccinated passengers. See
Norwegian, 553 F. Supp. 3d at 1150–51, 1179. And that, in turn,
means cruise operators must spend more to treat those who de-
velop COVID-19 onboard. They also must cope with COVID-19
outbreaks that inundate their limited health services onboard, leav-
ing little bandwidth to deal with other health emergencies. More
cases of COVID-19 also mean that fewer passengers can enjoy their
vacations, making them less likely to be return customers. And
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44 ROSENBAUM, J., Dissenting 21-12729
some passengers who become ill may die or develop long COVID
after disembarking, causing them to suffer from debilitating, long-
term effects for years to come. Not only that, but cruise passengers
who spread COVID-19 in foreign ports create additional problems
for cruise lines (not to mention for those who frequent those for-
eign ports).
The Majority Opinion responds that I “ha[ve] it backwards”
and that “[t]he State—not an Article III court—has the constitu-
tional authority to determine what is and is not a ‘reasonable dis-
tinction’ between its citizens and what qualifies as discrimination
worth remedying.” Maj. Op. at 46. It continues, “declin[ing] [my
alleged] invitation to put . . . policy decisions in the hands of une-
lected federal judges.” Id. That sure sounds like a good invitation
to decline. But it’s not one I make. Once again, the Majority Opin-
ion contorts my analysis, fails to apply the proper test under the
dormant Commerce Clause, and then faults me for applying that
test, which Supreme Court jurisprudence requires.
Of course, the state can determine “what qualifies as dis-
crimination worth remedying.” Id. But as Pike and its progeny
show, that doesn’t absolve us of evaluating the nature of that inter-
est. So for example, in Pike, the Court disregarded Arizona’s as-
serted interest because “application of the act” to the farming-com-
pany plaintiff there had “a far different impact, and quite a different
purpose.” 397 U.S. at 144. See also Clover Leaf Creamery, 449 U.S.
at 463 n.7 (explaining the need to disregard a state’s asserted inter-
est when it “could not have been a goal of the legislation.” (quoting
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21-12729 ROSENBAUM, J., Dissenting 45
Weinberger, 420 U.S. at 648 n.16)). Indeed, as I’ve explained, the
Pike Court’s evaluation of the nature of the state’s interest revealed
that the state’s asserted interest—“protect[ing] and enhanc[ing] the
reputation of growers within the State” by preventing fruit packers
from packaging fruit in a way that misrepresented the fruit’s qual-
ity—was significantly more substantial than the nature of the
state’s actual interest in applying its law to the farming-company
plaintiff. See 397 U.S. at 143–46. And perhaps unlike its asserted
interest, its actual interest was not enough to justify the burdens on
commerce. Id. at 146.
As Pike itself shows, evaluating the nature of the state’s ac-
tual interest is critical to proper application of the Pike balancing
test because it allows us to ensure proper weight on the local-ben-
efits side of the balance. And it’s simply reality that Norwegian’s
use of vaccination status to make scientifically supported, health-
based decisions is just not the same thing at all as invidious ethnic
or racial discrimination. So the use of Section 381.00316(1) to pre-
vent Norwegian from requiring proof of vaccination to board a
multi-day cruise to foreign ports is not entitled to the same weight
on the local-benefits side of the analysis as a state law that prohibits
invidious discrimination.
The bottom line is that Norwegian does not seek to invidi-
ously discriminate against unvaccinated people; it seeks to distin-
guish between vaccinated and unvaccinated people to ensure the
health and safety of its passengers. And that non-pejorative “dis-
crimination” is noninvidious. It is therefore a far cry from the
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46 ROSENBAUM, J., Dissenting 21-12729
discrimination that occurs when a doctor refuses or delays “treat-
ment [merely] because a patient (or a parent of a patient) owns fire-
arms.” Wollschlaeger v. Florida, 848 F.3d 1293, 1314, 1317 (11th
Cir. 2017) (en banc)—a false equivalence the Majority Opinion sug-
gests. See Maj. Op. at 31–32. Nor does distinguishing between
vaccinated and unvaccinated people for health and safety purposes
even vaguely resemble the “evils” of the “invidious discrimination”
that “frequently occurs along ethnic lines.” Barez, 458 U.S. at 609.
And we must reject the Majority Opinion’s unfortunate efforts to
equate them. See Maj. Op. at 32 (treating a state’s interest in rem-
edying both these forms of discrimination as equal); id. at 43 (de-
fending this false equivalence).
iii. Even assuming that Florida’s law remedies non-pejorative
discrimination, that interest is trivial at best.
That brings us back to the first, non-pejorative definition of
discrimination: at best, Section 381.00316(1) remedies the “intel-
lectual faculty of noting differences and similarities,” Discrimina-
tion, Black’s Law Dictionary, supra (definition 1), by preventing
businesses from denying services to unvaccinated people, see Maj.
Op. at 38 (reciting Representative Mike Beltran’s statement that
“we have people discriminating against you if you’re not vac-
cinated,” (quoting House Session, FLA. HOUSE OF
REPRESENTATIVES, at 2:24:20–2:25:00 (Apr. 28, 2021),
https://www.flsenate.gov/media/VideoPlayer?Even-
tID=1_rch640e3-202104281030&Redirect=true).
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21-12729 ROSENBAUM, J., Dissenting 47
And because we must evaluate the nature of the interest the
state claims, it’s important to identify that interest precisely. See
Pike, 397 U.S. at 145–146 (evaluating the state’s interest as the law
applied to the company that sued in that case). Although Section
381.00316(1) seems on its face like it protects both vaccinated and
unvaccinated people from discrimination for failure to produce
documentation of vaccination, that’s not so. In practice, the statute
protects only unvaccinated people against discrimination. Only
unvaccinated people cannot produce documentation that they are
vaccinated. And in any case, the statute punishes businesses only
for requiring customers to provide “documentation certifying
COVID-19 vaccination or postinfection recovery”—not for requir-
ing proof that customers are unvaccinated. Fla. Stat. §
381.00316(1).
In fact, the Florida Legislature even voted against an amend-
ment that would have protected vaccinated people from discrimi-
nation. During the debate on the bill that became Section
381.00316(1), Senator Jason Pizzo voiced concerns about this kind
of discrimination. He pointed to a Miami school, for example, that
warned students and teachers not to get vaccinated because “they
could be contracting something . . . called shedding, which is dis-
rupting and interrupting women’s menstrual cycles, their repro-
ductive systems.” Senate Session, FLA. SENATE, at 6:04:22–6:06:30
(Apr. 29, 2021). “That’s a teacher telling a student to stay away
from their parents if they’ve been vaccinated[,]” he said. Id. “Did
you honestly think that there was gonna be a—I didn’t—a business
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48 ROSENBAUM, J., Dissenting 21-12729
that would say, ‘You cannot work here anymore, Teachers’; telling
your teachers that if you choose to get vaccinated, you are not al-
lowed to work here anymore?” Id.Nor was Senator Pizzo alone in voicing these concerns.
Representative Grieco also remarked that the same Miami school,
which received public funds, had adopted a policy preventing its
teachers from being vaccinated and prohibiting vaccinated people
from interacting with students. House Session, FLA. HOUSE OF
REPRESENTATIVES, at 3:02:50–3:03:19 (Apr. 27, 2021). Yet the state
chose not to realize an interest in preventing this type of discrimi-
nation. And when Senator Pizzo proposed an amendment to ad-
dress this issue,28 the Senate voted it down.
In any case, I assume that Florida’s interest in protecting
only unvaccinated people from “the intellectual faculty of noting
differences and similarities” is a legitimate state interest. Discrimi-
nation, Black’s Law Dictionary, supra (definition 1). But of course,
the nature of that evil contrasts sharply with the “evils” of the “in-
vidious discrimination” that “frequently occurs along ethnic lines.”
Barez, 458 U.S. at 609. Yet the Majority Opinion treats a state’s
interest in remedying both evils as one and the same. See Maj. Op.
at 30–31. That’s obviously a false equivalence. And discarding it
28 Theproposed amendment provided, “A business, a governmental entity, or
an educational institution may not reject, restrict, obstruct, interfere, prevent,
or deny a person access to, entry upon, or services from a business, a govern-
mental entity, or an educational institution because the person is vaccinated
against COVID-19.”
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21-12729 ROSENBAUM, J., Dissenting 49
reveals that Florida’s interest is not “a substantial interest [that is]
weightier than a ‘legitimate local’ one.” Id. at 31.
That’s especially so when we consider that Norwegian chal-
lenges Section 381.00316(1) only as it applies to cruise ships. Ap-
parently aware of this problem for its analysis, the Majority Opin-
ion relies on “grocery stores, restaurants, fitness gyms, clothing
stores, barber shops and hair salons, and even pharmacies,” Maj.
Op. at 32, to argue Florida’s interest here is substantial. But those
establishments are irrelevant to this case because Norwegian chal-
lenges the law only as applied to cruise ships. Unlike cruise ships,
those businesses do not transit international waters with their pa-
trons in close quarters for days or weeks at a time. And they do not
drop off their patrons in foreign countries or regularly have their
patrons leave for other states or countries upon completing their
business.
In short, they do not present the same infectious-disease-
transmission problems that cruises do. Yet even Florida has recog-
nized that infectious-disease-transmission issues as they relate to
COVID-19 are not the same in all business contexts. See Section
381.00316(5) (excepting “health care provider[s]” from complying
with Section 381.00316(1)). For the reasons the district court found
and I’ve explained, the cruise context is one industry where infec-
tious-disease-transmission problems are especially significant and
different than the infectious-disease-transmission problems in con-
texts like the Majority Opinion relies on.
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50 ROSENBAUM, J., Dissenting 21-12729
The Majority Opinion’s refusal to address the challenge that
is actually before the Court betrays its lack of confidence that Sec-
tion 381.00316(1) survives dormant Commerce Clause analysis as
applied to the cruise industry.
iv. Because Florida’s law furthers its interest in preventing dis-
crimination only marginally, that interest is illusory.
As I have mentioned, the extent to which an interest can jus-
tify burdening interstate and foreign commerce “will of course de-
pend on the nature of the local interest involved,” Pike, 397 U.S. at
142. And in considering the nature of that interest, we must also
remember that this is an as-applied challenge that seeks to enjoin
Section 381.00316(1) only as it applies to the cruise industry.
To that end, there’s no question that Florida’s law furthers
its interest in preventing discrimination (if at all) only marginally.
And that’s the death knell for Florida’s law, for a state’s interest is
“illusory” when the law, though “designed for” a “salutary pur-
pose,” “further[s] that purpose” only “marginally,” Kassel, 450 U.S.
at 671 (1981) (plurality opinion); see also id. at 691 (Rehnquist, J.,
dissenting). That’s the case here for two interrelated reasons.
To begin with, this law applies to millions of cruise passen-
gers, and only a small subset of those passengers are Floridians.
While the cruise industry serves some Floridians, it also attracts
many passengers from the other forty-nine states and around the
world. As I’ve noted, Florida boasts the three biggest cruise ports
in the world, and PortMiami is among “the cruise industry’s largest
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21-12729 ROSENBAUM, J., Dissenting 51
and most essential international ports.”29 Cruise passengers travel
to Florida from across the globe. Many of those passengers remain
in Florida for only the time necessary to get to and board the cruise
ship, before leaving Florida, often sailing to international destina-
tions, and then, right after their cruises, returning to their homes
outside the state. So any local benefits from Section 381.00316(1)’s
application to the cruise-ship industry are minimal and short-lived.
Second, those benefits, minimal as they are to begin with,
vanish soon after the cruise leaves port. Suppose a cruise ship de-
parting from Florida does not require proof of vaccination to board
the cruise. Instead, after leaving port, the cruise ship requires proof
of vaccination to enter and use the common facilities. And those
who refuse to present vaccine documents must use separately des-
ignated and inferior facilities. See Norwegian, 553 F. Supp. 3d at
1155 (explaining that some cruise lines have already implemented
similar practices).30
29 See supra at note 22.
30 Even if a cruise line took this approach, it could not avoid close contact be-
tween vaccinated and unvaccinated people at the beginning and end of the
cruise—while the cruise line was subject to Florida’s law. And the crew, who
would have to serve both unvaccinated and vaccinated people onboard the
same ship, would also be exposed to both unvaccinated and vaccinated people.
That problem only compounds after crew members interact with unvac-
cinated passengers because “the crew typically live and eat in small congregate
places.” Norwegian, 553 F. Supp. 3d at 1151. So such an approach would not
protect against transmission of COVID-19 from unvaccinated people to vac-
cinated people in the same way that verifying vaccination status would. For
the same reasons, it would not protect people in foreign cities from COVID-
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52 ROSENBAUM, J., Dissenting 21-12729
Even the Majority Opinion concedes that Florida’s laws
could do nothing about this. See Maj. Op. at 50 (accepting that
cruise lines that “impose their [vaccine requirement] preferences
abroad ‘may continue to move freely across the Florida border’”).
And the Majority Opinion is right to make that concession because
a state’s law is “invalid” under the Commerce Clause when “the
practical effect of the regulation is to control conduct beyond the
boundaries of the State.” Healy v. Beer Inst., Inc., 491 U.S. 324, 336
(1989).
As applied to the cruise industry, then, Section 381.00316(1)
protects unvaccinated Floridians from the “intellectual faculty of
noting differences and similarities” only at the time of boarding and
disembarking. Discrimination, Black’s Law Dictionary, supra (def-
inition 1). After that, cruise lines are free to differentiate between
vaccinated and unvaccinated persons at their leisure. So the con-
clusion that Florida’s law furthers its purpose only “marginally” is
inescapable. Kassel, 450 U.S. at 670–71 (plurality opinion); see also
id. at 691 (Rehnquist, J., dissenting). And Florida’s interest in pre-
venting discrimination is thus “illusory,” id. at 671 (plurality opin-
ion).
19 transmitted by those who leave cruise ships to visit those cities. And of
course, it would not prevent COVID-19 cases from overrunning the medical
services onboard and obstructing medical care for other illnesses and condi-
tions. So such a practice would not avoid the great burdens on interstate and
foreign commerce that Section 381.00316(1) imposes.
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21-12729 ROSENBAUM, J., Dissenting 53
To all that, the Majority Opinion’s only retort is to accuse
me of “artificially limit[ing] the State’s interest” by focusing only
on Section 381.00316(1)’s application to “luxury ocean liners.” Maj.
Op. at 32. But focusing on Section 381.00316(1)’s application to
“luxury ocean liners” is precisely what Pike requires. See Pike, 397
U.S. at 144 (disregarding Arizona’s asserted interest because “appli-
cation of the act” to the farming-company plaintiff had “a far differ-
ent impact, and quite a different purpose.”); see also Norwegian,
553 F. Supp. 3d at 1180 (enjoining Florida “from enforcing Section
381.00316 against [Norwegian]” only). And adhering to Pike re-
veals that Florida’s interest in preventing discrimination is, to
quote the Majority, “artificial[]” because it is illusory. Maj. Op. at
32.
C. Section 381.00316(1) does not meaningfully promote privacy.
Florida’s final asserted justification for the statute is one in
“promoting privacy” for those who wish not to disclose their
COVID-19 vaccine documents. There is no doubt that protecting
privacy is a legitimate state interest.
But Florida has indicated that that privacy interest is signifi-
cantly less substantial in the context of requiring proof of vaccina-
tion against deadly diseases. As Senator Tina Polsky pointed out
during the bill’s floor debates, Section 381.00316 prohibits busi-
nesses and schools from requiring proof of vaccination for COVID-
19—even though businesses and schools can require, for instance,
proof of vaccination for measles, mumps, and rubella. See Senate
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54 ROSENBAUM, J., Dissenting 21-12729
Session, FLA. SENATE., at 6:18:00–6:18:18; 6:19:53–6:20:19; 6:20:43–
6:20:49 (Apr. 29, 2021).31
Time and again the Supreme Court has made clear that,
when a state contradicts its asserted interest in other contexts, that
fact “tends to undermine” the state’s “justification for the burdens”
its law “imposes on interstate commerce.” MITE Corp., 457 U.S.
at 644. In Raymond Motor Transportation, for example, the Court
invalidated a Wisconsin statute that generally prohibited trucks ex-
ceeding fifty-five feet in length from operating on the state’s high-
ways. 434 U.S. at 432. In so doing, the Court concluded that Wis-
consin’s “assertion that the challenged regulations contribute to
highway safety” was “undercut by the maze of exemptions from
the general truck-length limit that the State itself allow[ed].” Id. at
443, 445.
The same issue arose in Edgar v. MITE Corp. There, Illinois
enacted a law requiring that certain tender offers be registered with
31As with those vaccinations, COVID-19 vaccines have obtained full authori-
zation from the FDA. See U.S. Food and Drug Administration, FDA Approves
First COVID-19 Vaccine (Aug. 23, 2021), https://www.fda.gov/news-
events/press-announcements/fda-approves-first-covid-19-vaccine (announc-
ing FDA full approval for Pfizer-BioNTech COVID-19 vaccine for those 16 and
older); U.S. Food and Drug Administration, Coronavirus (COVID-19) Update:
FDA Takes Key Action by Approving Second COVID-19 Vaccine (Jan. 31,
2022), https://www.fda.gov/news-events/press-announcements/corona-
virus-covid-19-update-fda-takes-key-action-approving-second-covid-19-vac-
cine (announcing FDA full approval for Moderna COVID-19 vaccine for those
18 and older). So vaccines for COVID-19 stand on the same footing as FDA-
approved vaccines for other diseases.
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21-12729 ROSENBAUM, J., Dissenting 55
the Secretary of State. 457 U.S. at 626–27. Illinois’s asserted pur-
pose for this law was to provide greater protections for resident
security holders than federal securities laws afforded. Id. at 644.
But the law also “completely exempt[ed] from coverage a corpora-
tion’s acquisition of its own shares.” Id. As a result, a company
could make a tender offer for its own stock without complying
with the law, leaving that company’s shareholders to depend on
only federal securities laws. Id. Yet Illinois clearly viewed those
provisions as inadequate to protect investors in other contexts. Id.“This distinction [wa]s at variance with Illinois’ asserted legislative
purpose,” the Court said, “and it tend[ed] to undermine [the
State’s] justification for the burdens the statute impose[d] on inter-
state commerce.” Id.This case is no different. In all three circumstances, the state
contradicted its asserted interest in other contexts, thus undermin-
ing the weight of the state’s interest. And that makes sense: when
the legislature treats the same alleged problem differently—here,
Florida’s inconsistent treatment of the alleged lack of privacy that
attends a requirement to show documentation of vaccination for
an infectious, highly contagious, potentially deadly and debilitating
disease at business and public institutions where people must inter-
act and share contact with one another—it suggests that the state’s
claimed interest in remedying that problem is not as important as
if the state addressed that interest uniformly.
So here, as in MITE Corp. and Raymond Motor Transporta-
tion, Florida has undermined its asserted interest in protecting
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56 ROSENBAUM, J., Dissenting 21-12729
Floridians’ privacy by contradicting that interest. Florida contra-
dicted its privacy interest because the state itself requires Floridians
to present proof of vaccination against diseases other than COVID-
19 to attend schools at the very same time that Section 381.00316(1)
prohibits cruise lines from requiring documentation of COVID-19
vaccination. “This distinction is at variance with [Florida’s] as-
serted legislative purpose, and tends to undermine [Florida’s] justi-
fication for the burdens the statute imposes on interstate [and for-
eign] commerce.” MITE Corp., 457 U.S. at 644.
The Majority Opinion simply ignores MITE Corp. and Ray-
mond Motor Transportation. It doesn’t even mention them at all.
Instead, the Majority Opinion says it is irrelevant that Florida re-
quires disclosure of vaccination documentation for other infec-
tious, potentially deadly, or debilitating diseases to attend school
and other venues, while it espouses an interest in protecting the
privacy of COVID-19 vaccination documentation. See Maj. Op. at
47. Yet while that distinction might be irrelevant when we subject
state laws to rational-basis review (under equal-protection or due-
process analysis, for example), that distinction is very relevant
when we review state laws challenged under the dormant Com-
merce Clause.
To support its contrary claim, the Majority Opinion relies
exclusively on the Clover Leaf Creamery Court’s equal-protection
analysis. See Maj. Op. at 41 (asserting “that a legislature need not
strike at all evils at the same time or in the same way” (quoting
Clover Leaf Creamery, 449 U.S. at 466)). The Majority Opinion
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21-12729 ROSENBAUM, J., Dissenting 57
justifies this move, it seems, because the Clover Leaf Creamery
Court relied on its analysis of Minnesota’s asserted interests, which
it had “already reviewed” during its equal-protection analysis, for
the purpose of its dormant Commerce Clause analysis. 449 U.S. at
473.
But the Majority Opinion’s reliance on Clover Leaf Cream-
ery’s equal-protection analysis is wrong for three reasons. First,
because the Minnesota law in Clover Leaf Creamery imposed only
a “minor” burden on commerce, id. at 472, the Court didn’t need
to engage in further analysis of the local-benefits side of Pike’s bal-
ance. Indeed, when a law imposes only a minor burden on com-
merce, “it follows that there cannot be a burden on interstate com-
merce that is ‘clearly excessive in relation to the putative local ben-
efits’ under Pike.” Nat’l Ass’n of Optometrists & Opticians, 682
F.3d at 1155. But when a law imposes more than a minor burden
on commerce—and especially when a law imposes a burden on
foreign commerce, see Wunnicke, 467 U.S. at 101—we must care-
fully consider the local benefits that the state law produces, before
weighing those benefits against the law’s burdens. See Town of
Southold, 477 F.3d at 52 (explaining the need to “remand[] for fur-
ther discovery or trial where a party has offered a credible expert
affidavit alleging a burden on interstate commerce and challenging
the proposed benefits of the law.”).
Second, as far as I can tell, there’s not a single other Supreme
Court or Eleventh Circuit case that both applies Pike and employs
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58 ROSENBAUM, J., Dissenting 21-12729
rational-basis scrutiny on the local-benefits side of the equation.32
Perhaps that explains the Majority Opinion’s choice to retcon
dormant Commerce Clause cases to support its mistaken applica-
tion of rational-basis review when analyzing Section 381.00316(1)’s
local benefits. But as I am about to explain, the Majority Opinion
fails to cite a single case that actually supports its incorrect conten-
tion that courts engage in rational-basis review when analyzing the
local-benefits side of the scale under Pike.
The Majority Opinion first revises Florida Transportation
Services to support the proposition that Florida’s “justifications are
not illusory if applying section 381.00316(1) ‘as written’ would ‘ra-
tionally contribute to [Florida’s] purported local benefits.’” Maj.
Op. at 37 (quoting Fla. Transp. Servs., 703 F.3d at 1260); see also id.
at 47. In essence, the Majority Opinion says that a state’s justifica-
tions are not illusory if the state had a rational basis for believing
that its law would “contribute to the State’s purported local bene-
fits.” Id. at 38 (alterations adopted). But Florida Transportation
32 When we analyze laws the United States Congress has enacted, we ask
whether Congress could have had a rational basis for concluding that a regu-
lated activity sufficiently affected interstate commerce to assess the constitu-
tionality of the statute under the Commerce Clause. United States v. Lopez,
514 U.S. 549, 556–57 (1995). And when the Supreme Court used to evaluate
state taxes that discriminated against those out of state (the first tier of the Pike
analysis), it used to consider whether the state’s justification had a rational ba-
sis. Fulton Corp. v. Faulkner, 516 U.S. 325, 345–46 (1996). But it no longer
does that. Id. Of course, this case involves neither of these situations, in any
case.
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21-12729 ROSENBAUM, J., Dissenting 59
Services never said that a state’s asserted justifications are not illu-
sory if the state had a rational basis for believing that its law would
contribute to the state’s purported benefits.
In fact, we never mentioned the term “rational basis” in that
entire opinion. Nor did we cite Clover Leaf Creamery. Instead,
we cited Raymond Motor Transportation, among other cases. And
we explained that Miami-Dade’s “permitting practices did not fur-
ther, but if anything rather disserved, the County’s purported pur-
poses and benefits.” Fla. Transp. Servs., 703 F.3d at 1261. So, we
reasoned, “while the local benefits identified by the County [we]re
legitimate, the Port Director’s permitting practices d[id] not ration-
ally contribute to these purported local benefits.” Id. at 1260. In
other words, we used “rationally” in the sense that the state’s chal-
lenged practices did not actually further its justifications for those
practices—not as code that we were engaging in rational-basis re-
view.
In the same way, the Majority Opinion distorts Kassel v.
Consolidated Freightways to justify applying rational-basis review
to the local-benefits side of the Pike scale. Maj. Op. at 37 (quoting
Kassel, 450 U.S. at 671). But Kassel did not, as the Majority Opinion
claims, “echo[]” Clover Leaf Creamery. Id. On the contrary, Kas-
sel dealt with an Iowa highway-safety law that “tend[ed] to increase
the number of accidents,” prompting the Court to find that Iowa’s
asserted “safety interest” was “illusory,” 450 U.S. at 671, 675 (plu-
rality opinion). That fact, coupled with Iowa’s “statutory exemp-
tions,” suggested that “the deference traditionally accorded a
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60 ROSENBAUM, J., Dissenting 21-12729
State’s safety judgment [was] not warranted.” Id. at 678 (citing
Raymond Motor Transp., 434 U.S. at 444 & n.18, 446–47). And
because Iowa’s law also imposed a substantial burden on interstate
commerce, the Court held that it “violate[d] the Commerce
Clause.” Id. at 678–79. In short, Kassel dealt with a law that im-
posed substantial burdens on commerce. For that reason, the
Court had no choice but to determine whether Iowa’s law pro-
duced any benefits. And because the law did not produce any ben-
efits, the Court held that Iowa’s asserted safety justification was il-
lusory.
Nor have we ever read, as the Majority Opinion suggests,
“Kassel to command substantial deference” when a state’s safety
benefits were illusory. Maj. Op. at 37. On the contrary, Florida
Transportation Services applied Kassel to hold that Miami-Dade’s
permitting practices failed the dormant Commerce Clause because
they were, in effect, illusory, as they “did not further, but if any-
thing rather disserved, the County’s purported purposes and bene-
fits.” Fla. Transp. Servs., 703 F.3d at 1261 (citing Kassel, 460 U.S. at
670).
And third, Raymond Motor Transportation preceded, and
MITE followed, Clover Leaf Creamery. And they both teach that
a state undercuts the weight of its asserted interest by contradicting
that interest in other contexts. Plus, as I’ve mentioned, as far as I
can tell, in the forty-one years since the Supreme Court issued Clo-
ver Leaf Creamery, no Supreme Court case has employed rational-
basis review to analyze a law’s local benefits under Pike. Nor does
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21-12729 ROSENBAUM, J., Dissenting 61
any Supreme Court case abrogate or limit Raymond Motor Trans-
portation’s and MITE’s analyses in this respect.
The clear import of these facts is that Clover Leaf Creamery
relied on its equal-protection analysis of the state’s interests for the
purpose of its dormant Commerce Clause analysis of those inter-
ests because the law imposed only a “minor” burden on commerce.
449 U.S. at 473. So the Court did not need to further explore the
local-benefits side of the analysis because it could make no differ-
ence to the outcome. After all, the minor burden couldn’t out-
weigh the local benefits, in any case.
Put simply, Clover Leaf Creamery did not somehow silently
add or substitute rational-basis review for the Pike balancing test
or for any part of that test under dormant Commerce Clause juris-
prudence. And the Majority Opinion’s efforts to rewrite the Pike
balancing test to the contrary are inconsistent with dormant Com-
merce Clause jurisprudence.
Because this case demands application of the Pike balancing
test rather than rational-basis review, the question is whether Flor-
ida’s law imposes a burden on commerce that clearly exceeds its
local benefits. And both MITE Corp. and Raymond Motor Trans-
portation demand the conclusion that, by requiring Floridians to
present proof of vaccination against other infectious, potentially
deadly or debilitating diseases to attend school, Florida has under-
mined any substantiality its asserted interest in protecting Floridi-
ans’ privacy in this context may have otherwise had. For that
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62 ROSENBAUM, J., Dissenting 21-12729
reason, Florida’s asserted privacy interest warrants less weight on
the local-benefits side of the Pike balancing scale.
V. The substantial burden Section 381.00316(1) imposes on do-
mestic and foreign commerce clearly exceeds any local ben-
efits the law bestows.
As Section IV of this dissent shows, Florida’s justifications
for Section 381.00316(1) are illusory. But even if we assume Sec-
tion 381.00316(1) could “rationally” further the interests Florida
claims, again, a “determination that a state law is a rational safety
measure does not end the Commerce Clause inquiry.” Kassell, 450
U.S. at 691 (Rehnquist, J., dissenting); see also id. at 670 (plurality
opinion); Raymond Motor Transp., 434 U.S. at 443. Rather, even
a safety measure may be “rational” and still fail under Pike if it
yields demonstrably trivial safety benefits while imposing a mean-
ingful burden on commerce. And Section 381.00316(1) goes a step
beyond that—it imposes substantial burdens on commerce.
As is clear by now, the law makes the spread of COVID-19
significantly more likely—especially in the cruise setting, where, as
the district court found, “a large volume of individuals in close
quarters” spend an extended period together, presenting “many
opportunities for person-to-person contact in crowded or indoor
settings, such as group and buffet dining, entertainment events,
and excursions.” Norwegian, 553 F. Supp. 3d at 1151. Del Rio also
explained that infected passengers (whose infection may not show
up on a COVID-19 test) can expose the local populations to
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21-12729 ROSENBAUM, J., Dissenting 63
COVID-19 when other countries allow cruise passengers to disem-
bark. Del Rio Aff. ¶ 19. “[M]any of these populations lack the ac-
cess to healthcare and other resources,” so they “may be badly
damaged and they may understandably blame [Norwegian] for it.”
Id.
But Section 381.00316(1) doesn’t just increase COVID-19
cases onboard and in foreign ports. It also increases COVID-19
cases around the United States and the world. “[O]nce a cruise con-
cludes, passengers may engage in air transportation or other types
of common transports to return home.” Norwegian, 553 F. Supp.
3d at 1151. As a result, infected passengers can cause “widespread
transmission and possibly ‘super spreader’ events” after they dis-
embark from the cruise and reach their homes. Id. So Florida’s
law doesn’t impact just Floridians—it has a nationwide and even
worldwide impact.
And the more people who are infected with COVID-19, the
greater the burden on commerce. That’s because people who are
confined to beds and hospitals or who are otherwise unable to
work because of the lingering effects of COVID-19 and long
COVID—not to mention those who die from the virus—cannot
participate in commerce as they would if they were not infected.
They cannot go to their jobs and schools, consume goods and ser-
vices, or participate in many other commercial activities. And at
the risk of stating the obvious, dead people can’t participate in com-
merce at all. Nor can people who are on ventilators or in the in-
tensive care unit. Plus, when there are COVID-19 surges
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64 ROSENBAUM, J., Dissenting 21-12729
(especially because of ever-more-transmissible and dangerous var-
iants), even healthy people are more reluctant to go to work, to
school, or on vacation.
We need only look to the well-known effects of COVID-19
on the supply chain to understand the size of the impact large num-
bers of COVID-19 cases have on both interstate and foreign com-
merce. See, e.g., Sean Harapko, How COVID-19 Impacted Supply
Chains and What Comes Next, EY (Feb. 18, 2021),
https://www.ey.com/en_us/supply-chain/how-covid-19-im-
pacted-supply-chains-and-what-comes-next (“The COVID-19 pan-
demic has posed significant challenges for supply chains globally.”).
COVID-19, in short, dramatically impacted interstate commerce
by killing and temporarily (and permanently, in many cases) disa-
bling millions of people, keeping them out of work, school, and
leisure activity and gravely affecting the economy.
By exacerbating the COVID-19 problem, Section
381.00316(1) appreciably increases these harms nationwide (and
worldwide) while bestowing negligible (if any) local benefits. So
the provision doesn’t survive review under the dormant Com-
merce Clause when we balance the law’s trifling benefits against
the enormous costs it inflicts on interstate and foreign commerce.
“[W]here, as here, the State’s safety interest has been found to be
illusory, and its regulations impair significantly the federal interest
in efficient and safe interstate [and foreign] transportation, the state
law cannot be harmonized with the Commerce Clause.” Kassel,
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21-12729 ROSENBAUM, J., Dissenting 65
450 U.S. at 671 (plurality opinion); see also id.. at 691 (Rehnquist,
J., dissenting).
For these reasons, the district court did not abuse its discre-
tion in finding that Norwegian established a substantial likelihood
of success on its dormant Commerce Clause claim.
VI. The remaining preliminary injunction factors also favor the
district court’s entry of its preliminary injunction.
Finally, I consider the remaining preliminary-injunction fac-
tors. As with the first and most important criterion, the district
court did not abuse its discretion in concluding that Norwegian es-
tablished that irreparable harm and the equities and public interest
favored injunction.
First, without a preliminary injunction, Norwegian will en-
dure irreparable harm, “the sine qua non of injunctive relief.”
Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (quoting Ne.
Fla. Chapter of the Ass’n of Gen. Contractors v. City of Jackson-
ville, 896 F.2d 1283, 1285 (11th Cir. 1990)). As the district court
noted, the undisputed record shows that, without being able to
credibly verify vaccination status, Norwegian will suffer injury to
its “reputation, trust, and goodwill.” Norwegian, 553 F. Supp. 3d
at 1178. Florida has presented no evidence to refute Norwegian’s
assertions in these regards.
On appeal, Florida suggests that Norwegian chose to stake
its reputation on requiring vaccine documentation. But that sug-
gestion conflicts with the uncontradicted proof that Norwegian’s
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66 ROSENBAUM, J., Dissenting 21-12729
vaccination protocols are integral to its longstanding brand, repu-
tation, and customer base. As Norwegian explained, it and its pas-
sengers prize safety, hygiene, and comfort. That’s why passengers
choose to cruise with Norwegian. And less than 100% vaccination
virtually ensures more COVID-19 cases and all the ill effects on
safety, hygiene, and comfort that come with that. Florida also dis-
regards that Norwegian sold at least some of its tickets for 100%-
vaccinated cruises before the legislature enacted Section
381.00316(1).
Beyond these harms, Norwegian would suffer monetary
losses that it couldn’t recover from the state because of its sover-
eign immunity, thus rendering the harm suffered irreparable. See
Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d
1268, 1289 (11th Cir. 2013) (“[A]bsent waiver by the State or valid
congressional override, the Eleventh Amendment bars a damages
action against a State in federal court.” (quoting Kentucky v. Gra-
ham, 473 U.S. 159, 169 (1985))). Florida has not rebutted Norwe-
gian’s assertion that, without an injunction, it is likely to suffer sig-
nificant financial losses.
Finally, putting the general public—including Norwegian’s
passengers and employees, the populations who greet them, and
those around them when they travel home—at risk of exposure to
COVID-19 poses the worst form of irreparable harm. Florida de-
nies neither that vaccines best protect against COVID-19, nor that
vaccine documentation best confirms vaccination status. Nor can
Florida seriously deny that COVID-19 and long COVID can be
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21-12729 ROSENBAUM, J., Dissenting 67
serious—and even fatal. See Ala. Ass’n of Realtors v. Dep’t of
Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021) (“[T]he public
has a strong interest in combating the spread of the COVID-19
Delta variant.”). In sum, there is no shortage of irreparable injury
here.
The equities and public interest favor an injunction, too. Be-
cause Norwegian has established likely success on its constitutional
challenge under the dormant Commerce Clause, the balance of
harm and the public interest weigh in its favor because “[t]he public
has no interest in the enforcement of what is very likely an uncon-
stitutional statute.” Odebrecht, 715 F.3d at 1290; see also KH Out-
door, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir.
2006). Plus, the more people incapacitated with COVID-19 and
long COVID, the worse the effect on interstate and foreign com-
merce. And that is certainly not in the public interest.
As to the equities, as I have mentioned, Norwegian has
shown that it is likely to suffer significant financial and reputational
harms without an injunction, and it has also shown that public
health will be jeopardized.
By contrast, Florida has identified no public benefit from the
continued enforcement of the statute against Norwegian, other
than those that I’ve previously explained are not sufficient even to
get the statute past dormant Commerce Clause review. To be
sure, Florida asserts that it suffers an “ongoing irreparable injury”
whenever it is “‘enjoined by a court from effectuating [a] statute[]
enacted by representatives of its people,’” invoking its “sovereign
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68 ROSENBAUM, J., Dissenting 21-12729
capacity” and “traditional police powers.” Fla.’s Initial Br. at 44–45
(first quoting Maryland v. King, 567 U.S. 1301, 1303 (2012) (Rob-
erts, C.J., in chambers); then citing Hand v. Scott, 888 F.3d 1206,
1214 (11th Cir. 2018)). But those interests can be used to defend
virtually any state statute, no matter how patently unconstitutional
or noxious. And Florida does not deny that “the public interest is
served when constitutional rights are protected.” Democratic
Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019).
In sum, the district court did not abuse its discretion in pre-
liminarily enjoining the operation of Section 381.00316(1) as ap-
plied to Norwegian.
VII. Conclusion
For all these reasons, I would affirm the district court’s order
granting a preliminary injunction of Section 381.00316(1) as applied
to Norwegian. Because, in my view, the Majority Opinion incor-
rectly reaches the opposite conclusion, I respectfully dissent.