by Kenneth R. Brown*

 

The COVID-19 pan­dem­ic has had a pro­found impact on the lives of indi­vid­u­als around in the world. As of Feb­ru­ary 2022, COVID-19 has infect­ed at least 75 mil­lion peo­ple in the Unit­ed States alone, killing more than 915,000 of them.1 The fed­er­al and state gov­ern­ments have tak­en exten­sive mea­sures to mit­i­gate the spread of the virus and pre­vent the fail­ure of patch­work sys­tems of hos­pi­tals due to excess patients. These mea­sures include con­tact trac­ing, trav­el restric­tions, stay at home orders, mask man­dates, vac­cine man­dates, and forced clo­sure of non-essen­tial businesses.

Con­tact trac­ing is one of the more effec­tive strate­gies to iden­ti­fy clus­ters of COVID-19 trans­mis­sion and lim­it fur­ther spread.2 The use of mobile phone appli­ca­tions allows for the easy col­lec­tion of data relat­ed to demo­graph­ics, COVID sta­tus, and geolo­ca­tion that fur­thers con­tact trac­ing efforts. Due to the lim­it­ed nature of fed­er­al police pow­ers under the U.S. Con­sti­tu­tion, con­tact trac­ing solu­tions are man­aged at the state lev­el. Absent fed­er­al over­sight and coop­er­a­tion among sov­er­eign equals, these efforts vary in method­ol­o­gy, effi­ca­cy, and scope of data shar­ing. Because U.S. cit­i­zens fre­quent­ly trav­el between states, states may need to mon­i­tor the move­ments of their res­i­dents while they are out­side of the state in order to effec­tive­ly imple­ment con­tact trac­ing solu­tions and lim­it the spread of COVID-19 with­in their state. To pro­tect the pri­va­cy of what could be con­sid­ered sen­si­tive data, states may also need to restrict the infor­ma­tion that non-res­i­dent con­tact trac­ing enti­ties may share regard­ing data col­lect­ed with­in the state’s bor­ders or from its res­i­dents while they are out­side of the state.

State leg­is­la­tion that reach­es extrater­ri­to­ri­al­ly into its fel­low sov­er­eign states would be sub­ject to restric­tions under the Dor­mant Com­merce Clause of the Con­sti­tu­tion. In order to be con­sti­tu­tion­al­ly valid, such leg­is­la­tion would need to pass a bal­anc­ing test con­sid­er­ing the fol­low fac­tors: (1) whether it dis­crim­i­nates against inter­state com­merce, (2) direct­ly reg­u­lates com­merce out­side of its ter­ri­to­ry, or (3) bur­dens inter­state com­merce in a man­ner that clear­ly exceeds the ben­e­fits to the state’s legit­i­mate inter­est. This Con­tri­bu­tion argues that state leg­is­la­tion autho­riz­ing the col­lec­tion and use of data sourced from con­tact trac­ing appli­ca­tions would be a valid exer­cise of state police pow­ers under the Dor­mant Com­merce Clause.

*****

The Com­merce Clause of the Con­sti­tu­tion grants Con­gress the pow­er to “reg­u­late Com­merce with for­eign Nations, and among the sev­er­al states, and with the Indi­an Tribes.”3 The Constitution’s Suprema­cy Clause makes this grant of pow­er supreme and binds each state to enforce it, notwith­stand­ing any state law to the con­trary.4 As such, the Supreme Court has not­ed that “the Com­merce Clause is a pow­er-allo­cat­ing pro­vi­sion” that gives Con­gress “pre-emp­tive author­i­ty over the reg­u­la­tion of inter­state com­merce.”5

The Framers wrote the Com­merce Clause to “avoid the ten­den­cies toward eco­nom­ic Balka­niza­tion that had plagued rela­tions among the Colonies and lat­er among the states under the Arti­cles of Con­fed­er­a­tion.”6 In accord with this under­stand­ing, the Supreme Court has long held that the Com­merce Clause has an implied pro­hib­i­tive effect on state leg­is­la­tion that undu­ly bur­dens inter­state com­merce, termed by the Court the “dor­mant Com­merce Clause”.7 This pro­hib­i­tive effect restricts state action “even when Con­gress has failed to leg­is­late on the sub­ject.”8 How­ev­er, absent con­tra­dict­ing fed­er­al leg­is­la­tion, the states retain some author­i­ty to reg­u­late mat­ters that affect inter­state com­merce, as long as it is of “legit­i­mate local con­cern.”9

A state’s author­i­ty to enact leg­is­la­tion that impacts inter­state com­merce does not extend to the enact­ment of leg­is­la­tion with a dis­crim­i­na­to­ry pur­pose; such leg­is­la­tion is “vir­tu­al­ly per se” invalid.10 The Supreme Court has applied this rule to inval­i­date leg­is­la­tion that direct­ly dis­crim­i­nates against inter­state com­merce or that effec­tive­ly favor in-state activ­i­ty over out-of-state activ­i­ty.11 His­tor­i­cal­ly, leg­is­la­tion that has no rea­son, oth­er than its inter­state sta­tus, to treat inter­state com­merce dif­fer­ent­ly than intrastate com­merce is sub­ject­ed to a form of strict scruti­ny: the state must jus­ti­fy the local ben­e­fits from the statute and demon­strate that there were no nondis­crim­i­na­to­ry alter­na­tives that could ade­quate­ly pre­serve those ben­e­fits.12 If the leg­is­la­tion is not so nar­row­ly tai­lored, it must be struck down.13

While state leg­is­la­tion may impact inter­state com­merce, the Com­merce Clause does not allow a state to direct­ly reg­u­late com­merce that occurs out­side of its ter­ri­to­ry.14 This is true even if the effect of the leg­is­la­tion was ini­tial­ly trig­gered by in-state activ­i­ty.15 Even if com­merce has effects with­in the state, “[t]he Com­merce Clause … pre­cludes the appli­ca­tion of a state statute to com­merce that takes place whol­ly out­side of the state’s bor­ders.”16 This restric­tion applies when leg­is­la­tion has the “prac­ti­cal effect” of extrater­ri­to­r­i­al reach.17 Gen­er­al­ly, the Supreme Court has used the Com­merce Clause to inval­i­date leg­is­la­tion with extrater­ri­to­r­i­al effect in cas­es where states have attempt­ed to set price con­trols18 or restrict the actions of com­pa­nies that have a poten­tial­ly ten­u­ous con­nec­tion to the state.19

Nondis­crim­i­na­to­ry state leg­is­la­tion that inci­den­tal­ly effects inter­state com­merce and has not been pre­empt­ed by Con­gress is valid if it is fair­ly applied to activ­i­ty with a “sub­stan­tial nexus” to the state and relat­ed to the ser­vices pro­vid­ed by the state.20 The leg­is­la­tion will be upheld if the bur­den placed on inter­state com­merce is not “clear­ly exces­sive in rela­tion to the puta­tive local ben­e­fits.”21

The weight afford­ed to a state’s inter­est may depend upon its char­ac­ter. For instance, the Supreme Court has stat­ed that the bal­anc­ing of the bur­den on inter­state com­merce against a state’s safe­ty inter­est “nat­u­ral­ly” dif­fers from that of an eco­nom­ic inter­est.22 The Supreme Court has his­tor­i­cal­ly pro­vid­ed more def­er­ence under the Com­merce Clause to state reg­u­la­tions that con­cern health and safe­ty.23 In Rail­way Express Agency, Inc., the Supreme Court upheld a New York City ordi­nance that banned the use of vehi­cles for the pri­ma­ry pur­pose of adver­tis­ing in order to pre­vent fel­low dri­vers and near­by pedes­tri­ans from becom­ing dis­tract­ed, despite the bur­den this would place on inter­state truck­ing com­merce.24 Lat­er, in Unit­ed Haulers Asso­ci­a­tion, the Supreme Court upheld coun­ty ordi­nances that required all sol­id waste gen­er­at­ed by their cit­i­zens be deliv­ered to a state-cre­at­ed pub­lic ben­e­fit cor­po­ra­tion.25 The Court rea­soned that states were “vest­ed with the respon­si­bil­i­ty of pro­tect­ing the health, safe­ty, and wel­fare of its cit­i­zens,” and that the local gov­ern­ment was allowed to favor the use of an in-state pub­lic enti­ty in order to pur­sue its envi­ron­men­tal goals.26 The evi­dence of the ben­e­fit to the state must be con­clu­sive.27 Leg­is­la­tion that only mar­gin­al­ly fur­thers such pur­pos­es may be invalid if it sub­stan­tial­ly affects inter­state com­merce.28

*****

Con­tact Trac­ing appli­ca­tions col­lect sen­si­tive con­sumer infor­ma­tion such as their loca­tion his­to­ry and COVID-19 sta­tus in order to effec­tive­ly com­bat the spread of the virus. State leg­is­la­tion reg­u­lat­ing how appli­ca­tions may col­lect, store, and sell this infor­ma­tion would serve both pri­va­cy and health inter­ests, which have both been rec­og­nized by the Court as legit­i­mate sub­stan­tial inter­ests that states may pro­tect by enact­ing leg­is­la­tion under their police pow­ers.29 While pro­vi­sions gov­ern­ing the use of con­tact trac­ing appli­ca­tion data would not direct­ly address health and safe­ty, it does so indi­rect­ly in two ways. The first, and most impor­tant, is that leg­is­la­tion may require the appli­ca­tion to send the data to the state so that it can reach out to indi­vid­u­als who have had poten­tial con­tacts with some­one who has test­ed pos­i­tive COVID-19 or pub­lish infor­ma­tion that would allow indi­vid­u­als to make that deter­mi­na­tion for them­selves. The sec­ond is that restric­tions on the usage of per­son­al data col­lect­ed from the appli­ca­tion may increase user con­fi­dence that their infor­ma­tion will be pro­tect­ed and reduce hes­i­tan­cy to use the appli­ca­tion, encour­ag­ing wider use of con­tact trac­ing appli­ca­tions by the gen­er­al public.

Since the fed­er­al gov­ern­ment has not enact­ed leg­is­la­tion that would con­flict with, or pre­empt, state leg­is­la­tion pur­port­ing to reg­u­late the col­lec­tion, pro­cess­ing, and trans­fer of geolo­ca­tion data by con­tact trac­ing appli­ca­tions, such state leg­is­la­tion could be valid under the Dor­mant Com­merce Clause. Even if the leg­is­la­tion were to have an effect on inter­state com­merce, such as impos­ing bur­den­some extra costs onto non­res­i­dent appli­ca­tion own­ers or restrict­ing lucra­tive sources of income, it would remain con­sti­tu­tion­al­ly valid as long as it did not dis­crim­i­nate against or direct­ly reg­u­late inter­state com­merce and the state’s ben­e­fits from the leg­is­la­tion would not be clear­ly exceed­ed by the bur­den on inter­state commerce.

To avoid dis­crim­i­na­tion, the legislation’s pro­vi­sions should not explic­it­ly address inter­state com­merce by tak­ing into account the res­i­den­cy sta­tus of the con­tact trac­ing application’s cor­po­rate owner(s). The Supreme Court has held that leg­is­la­tion with pro­vi­sions explic­it­ly charg­ing increased fees or adding addi­tion­al bur­dens to out-of-state busi­ness­es dis­crim­i­nate against inter­state com­merce in vio­la­tion of the Com­merce Clause.30 The leg­is­la­tion should also not have pro­vi­sions that would favor in-state own­ers, such as a man­date to part­ner with local busi­ness­es or to use local prod­ucts or employ­ees that reside with­in the state. How­ev­er, even if some pro­vi­sions poten­tial­ly place addi­tion­al bur­dens on out-of-state busi­ness­es, they might sur­vive the strict scruti­ny analy­sis if there were no rea­son­able alter­na­tive meth­ods to sat­is­fy the state’s sub­stan­tial inter­ests in pro­tect­ing the health and pri­va­cy of its cit­i­zens. An exam­ple would be require­ments to inter­act with the state itself, or where the state is act­ing as a mar­ket par­tic­i­pant, in order to ensure that it receives suf­fi­cient data to effec­tive­ly trace poten­tial con­tacts with indi­vid­u­als that have test­ed pos­i­tive for COVID-19.  This would be a valid indi­rect dis­crim­i­na­tion as long as any alter­na­tive would be more cost­ly or prac­ti­cal­ly impos­si­ble.31

To effec­tive­ly reg­u­late con­tact trac­ing appli­ca­tions, any state leg­is­la­tion must, at least on occa­sion, affect con­duct occur­ring out­side of the state’s bor­ders or per­formed by non-res­i­dents with­in the state, as the state can­not legal­ly stop the flow of indi­vid­u­als or com­merce com­ing into and out of the state and COVID-19 does not rec­og­nize bor­ders. The leg­is­la­tion must be care­ful­ly craft­ed so that it does not affect con­duct that is occur­ring com­plete­ly out­side of its bor­ders, such as inter­ac­tions between its res­i­dents and con­tact trac­ing appli­ca­tions owned by non-res­i­dent com­pa­nies while the res­i­dent is out­side of the state. Even if the con­tact trac­ing appli­ca­tion is adver­tised with­in the state and has an effect with­in the state, leg­is­la­tion affect­ing such trans­ac­tions would vio­late the Com­merce Clause.32

The lan­guage should also not con­flict with the laws of oth­er states where it reach­es in a man­ner which essen­tial­ly requires out-of-state con­tact trac­ing appli­ca­tion own­ers to choose between the laws of those states or con­duct busi­ness at the reg­u­lat­ing state’s direc­tion.33 To avoid run­ning afoul of these stric­tures, leg­is­la­tion could be craft­ed in a man­ner that doesn’t con­flict with the laws of its fel­low states. This would avoid cre­at­ing “just the kind of com­pet­ing and inter­lock­ing local eco­nom­ic reg­u­la­tion that the Com­merce Clause was meant to pre­clude.”34 A leg­is­la­ture could avoid this prob­lem by study­ing the laws of oth­er states pri­or to craft­ing the leg­is­la­tion or, ide­al­ly, work­ing with oth­er states to cre­ate uni­form pro­vi­sions that would make it eas­i­er for con­tact trac­ing appli­ca­tions to work across state lines. Any pro­vi­sions that direct­ly address the man­age­ment of res­i­dent data col­lect­ed by out-of-state actors could be nar­row­ly tai­lored to apply only to that data col­lect­ed with­in the state.

Lim­it­ing the spread of COVID-19 and restrict­ing the sale or mis­man­age­ment of their res­i­dents’ per­son­al data impli­cates the state’s inter­est in pro­tect­ing the health and pri­va­cy of its cit­i­zens. If the leg­is­la­tion is craft­ed to be non-dis­crim­i­na­to­ry, except where nec­es­sary, and if it has a cir­cum­scribed extrater­ri­to­r­i­al effect, then the bur­den that it places on inter­state com­merce should be minor and would have only inci­den­tal com­pli­ance costs. Even if there were sub­stan­tial costs imposed on inter­state com­merce by the leg­is­la­tion, it would still need to clear­ly exceed the ben­e­fits to be a vio­la­tion of the Dor­mant Com­merce Clause. Giv­en the high lev­el of def­er­ence giv­en to state laws intend­ed to pro­tect health and safe­ty, it is an extra­or­di­nar­i­ly high bar to clear. As the Supreme Court stat­ed in Com­pag­nie Fran­caise de Nav­i­ga­tion a Vapeur v. Board of Health of State of Louisiana, “the pow­er of the states to enact and enforce quar­an­tine laws for the safe­ty and the pro­tec­tion of the health of their inhab­i­tants … is beyond ques­tion” even if it “affects inter­state or for­eign com­merce.”35

*****

State leg­is­la­tion that pro­vides for and gov­erns con­tact trac­ing appli­ca­tions and their asso­ci­at­ed use of pri­vate, sen­si­tive user data is a valid use of a state’s police pow­er and sup­ports its sub­stan­tial inter­est in pro­tect­ing the health and pri­va­cy of its res­i­dents. Such leg­is­la­tion, if prop­er­ly con­struct­ed, should be con­sid­ered valid under the Dor­mant Com­merce Clause because it would not dis­crim­i­nate against or direct­ly reg­u­late inter­state com­merce.  Fur­ther, the state’s ben­e­fits from the leg­is­la­tion would equal or exceed the bur­den on inter­state com­merce. To find oth­er­wise would risk ham­per­ing impor­tant efforts to lim­it the spread of COVID-19 and man­age a pan­dem­ic that has already exact­ed a sig­nif­i­cant toll on the lives of peo­ple through­out the Unit­ed States and the world.


* Ken­neth Brown is a J.D. Can­di­date (2022) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on the prob­lem pro­duced for the 2021 Nation­al Telecom­mu­ni­ca­tions and Tech­nol­o­gy Moot Court Com­pe­ti­tion host­ed by The Catholic Uni­ver­si­ty of Amer­i­ca Colum­bus School of Law, togeth­er with the Fed­er­al Com­mu­ni­ca­tions Bar Asso­ci­a­tion. The ques­tion pre­sent­ed was whether the dor­mant Com­merce Clause allows a state to place dis­clo­sure require­ments on and restrict the sale of con­sumer infor­ma­tion col­lect­ed by con­tact trac­ing appli­ca­tions oper­at­ed by a com­pa­ny that resides in a dif­fer­ent state. The views expressed in this arti­cle do not nec­es­sar­i­ly rep­re­sent the views of the author.


1. Ctrs. for Dis­ease Con­trol and Pre­ven­tion, https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last vis­it­ed Feb. 15, 2022).

2. Case Inves­ti­ga­tion and Con­tact Trac­ing: Part of a Mul­ti­pronged Approach to Fight the COVID-19 Pan­dem­ic, Ctrs. for Dis­ease Con­trol and Pre­ven­tion, https://www.cdc.gov/coronavirus/2019-ncov/php/principles-contact-tracing.html (last updat­ed Decem­ber 3, 2020).

3. U.S. Con­st. art. I, § 8, cl. 3.

4. U.S. Con­st. art. VI, cl. 2.

5. Den­nis v. Hig­gins, 498 U.S. 439, 447 (1991).

6. Okla. Tax Com­m’n v. Jef­fer­son Lines, 514 U.S. 175, 180 (1995) (quot­ing War­dair Cana­da Inc. v. Flori­da Dept. of Rev­enue, 477 U.S. 1, 7 (1986)).

7. See, e.g., Dep’t of Rev­enue v. Ass’n of Wash. Steve­dor­ing Cos., 435 U.S. 734, 749 (1978) (stat­ing that it is the com­bi­na­tion of the Suprema­cy Clause and the Supreme Court’s pri­or deci­sions which cre­ates the pro­hib­i­tive effect); Den­nis, 498 U.S. at 446 (“[T]he Court long has rec­og­nized that it also lim­its the pow­er of the states to erect bar­ri­ers against inter­state trade.” (quot­ing Lewis v. BT Invest­ment Man­agers, Inc., 447 U.S. 27, 35 (1980))).

8. Jef­fer­son Lines, 514 U.S. at 179.

9. See Lewis, 447 U.S. at 36 (cit­ing Hugh­es v. Okla­homa, 441 U.S. 322, 326 (1979).

10. See Granholm v. Heald, 544 U.S. 460, 476 (2005) (quot­ing Philadel­phia v. New Jer­sey, 437 U.S. 617, 624 (1978)).

11. See Lega­to Vapors, LLC v. Cook, 847 F.3d 825, 830 (7th Cir. 2017) (quot­ing Brown-For­man Dis­tillers Corp. v. New York State Liquor Author­i­ty, 476 U.S. 573, 578–79 (1986)) (cit­ing Edgar v. MITE Corp., 457 U.S. 624, 642, 102 S. Ct. 2629, 73 L. Ed. 2d 269 (1982) (plu­ral­i­ty opinion)).

12. See Hunt v. Wash. State Apple Advert. Com­m’n, 432 U.S. 333, 353 (1977) (cit­ing Dean Milk Co. v. Madi­son, 340 U.S., at 354) (strik­ing down dis­crim­i­na­to­ry leg­is­la­tion where alter­na­tive meth­ods to serve the state’s inter­est were read­i­ly available).

13. See Lewis, 447 U.S. at 36 (1980) (quot­ing Philadel­phia v. New Jer­sey, 437 U.S. 617, 626–27 (1978)).

14. Lega­to Vapors, 847 F.3d at 827 (7th Cir. 2017).

15. See Brown-For­man Dis­tillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 580 (1986).

16. Healy v. Beer Insti­tute, Inc., 491 U.S. 324, 336 (1989) (quot­ing Edgar v. MITE Corp., 457 U.S. 624, 642–43 (1982)); but see CTS Corp. v. Dynam­ics Corp. of Am., 481 U.S. 69, 89 (1987) (uphold­ing Indi­ana leg­is­la­tion that had extrater­ri­to­r­i­al effects but was not at risk at sub­ject­ing enti­ties to the laws of more than one state).

17. See Ass’n for Acces­si­ble Meds. v. Frosh, 887 F.3d 664, 668 (4th Cir. 2018) (cit­ing Star Sci., Inc. v. Beales, 278 F.3d 339, 355 (4th Cir. 2002) (strik­ing down Mary­land price goug­ing leg­is­la­tion that applied extrater­ri­to­ri­al­ly to all upstream man­u­fac­tur­ers and whole­salers of “essen­tial med­i­cines” that were made avail­able for sale in Mary­land), reh’g en banc denied, 742 F. App’x 720 (4th Cir. 2018), cert. denied, 139 S. Ct. 1168 (2019).

18. E.g., Brown-For­man Dis­tillers Corp, 476 U.S. at 586 (1986).

19. E.g., Edgar v. MITE Corp., 457 U.S. at 645–46 (1982) (plu­ral­i­ty opinion).

20. Com­pare Dep’t of Rev­enue v. Ass’n of Wash. Steve­dor­ing Cos., 435 U.S. 734, 750 (1978) (uphold­ing an unbi­ased tax on inter­state activ­i­ty that did not unfair­ly bur­den inter­state com­merce rel­a­tive to the state’s inter­est in exact­ing its fair share of the cost of gov­ern­ment), with Kas­sel v. Con­sol. Freight­ways Corp., 450 U.S. 662, 678 (1981) (hold­ing that tra­di­tion­al def­er­ence to state high­way safe­ty reg­u­la­tions was over­come by the legislation’s sub­stan­tial bur­den on inter­state com­merce and the absence of evi­dence of a “sig­nif­i­cant coun­ter­vail­ing safe­ty interest”).

21. Dep’t of Rev­enue v. Davis, 553 U.S. 328, 338–39 (2008) (quot­ing Pike v. Bruce Church, 397 U.S. 137, 338–39 (1970)).

22. Ass’n of Wash. Steve­dor­ing Cos., 435 U.S. at 748.

23. Kas­sel, 450 U.S. at 670 (“[R]egulations that touch upon safety—especially high­way safety—are those that ‘the Court has been most reluc­tant to inval­i­date.’” (quot­ing Ray­mond Motor Transp., Inc. v. Rice, 434 U.S. 429, 443 (1978))).

24. Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 111 (1949) (“Where traf­fic con­trol and the use of high­ways are involved … great lee­way is allowed local author­i­ties, even though the local reg­u­la­tion mate­ri­al­ly inter­feres with inter­state commerce.”).

25. Unit­ed Haulers Ass’n v. Onei­da-Herkimer Sol­id Waste Mgmt. Auth., 550 U.S. 330, 342 (2007).

26. Id. at 342–43.

27. See Bibb v. Nava­jo Freight Lines, 359 U.S. 520, 528–29 (1959) (inval­i­dat­ing an Illi­nois high­way safe­ty reg­u­la­tion which had dubi­ous safe­ty ben­e­fits, was “out of line with the require­ments of the oth­er states,” and placed too heavy a bur­den on inter­state commerce).

28. See Kas­sel, 450 U.S. at 670 (hold­ing that Illi­nois did not present suf­fi­cient evi­dence to estab­lish that its reg­u­la­tion fur­thered its pur­port­ed goal of increas­ing high­way safety).

29. See Mack­ey v. Mon­trym, 443 U.S. 1, 17 (1979) (not­ing that that states have a “para­mount” inter­est in pre­serv­ing the pub­lic health and safe­ty of its res­i­dents and that the Supreme Court has tra­di­tion­al­ly grant­ed states “great lee­way” in adopt­ing pro­ce­dures to pro­tect them.); Kas­sel, 450 U.S. at __ (1981) (Bren­nan, J., con­cur­ring) (“[I]f safe­ty jus­ti­fi­ca­tions are not illu­so­ry, the Court will not sec­ond-guess leg­isla­tive judg­ment about their impor­tance in com­par­i­son with relat­ed bur­dens on inter­state com­merce.” (quot­ing Ray­mond Motor Transp., Inc. v. Rice, 434 U.S. 429, 449–50 (1978) (Black­mun, J., con­cur­ring))); Fla. Bar v. Went for It, 515 U.S. 618, 625 (1995) (uphold­ing the Flori­da Bar’s free speech restric­tions on the solic­i­ta­tion of acci­dent vic­tims in order to pro­tect the victim’s privacy)

30. Chem­i­cal Waste Man­age­ment, Inc. v. Hunt, 504 U.S. 334 (1992).

31. See Unit­ed Haulers Ass’n v. Onei­da-Herkimer Sol­id Waste Mgmt. Auth., 550 U.S. 330, 347 (2007) (uphold­ing bur­den­some require­ments that forced all waste haulers to use a sin­gle state-run facil­i­ty, despite the fact that it charged sig­nif­i­cant­ly high­er fees than pri­vate facil­i­ties charged in the open mar­ket, because it would oth­er­wise be “much more cost­ly” for the state to enforce its recy­cling laws). It should be not­ed that state laws pro­tect­ing a state’s envi­ron­men­tal inter­ests have not been tra­di­tion­al­ly been giv­en the same def­er­ence as laws pro­tect­ing their health and safe­ty or pri­va­cy interests.

32. See Mid­west Title Loans, Inc. v. Mills, 593 F.3d 660 (7th Cir. 2010) (strik­ing down pro­vi­sions of the Indi­ana Uni­form Cred­it Code which reg­u­lat­ed cred­it trans­ac­tions made by Indi­ana res­i­dents “in anoth­er state,” despite the fact that Indi­ana had a “col­orable inter­est in pro­tect­ing its res­i­dents from the type of loan that [the title loan com­pa­ny] purveys”).

33. See Nat’l Elec. Mfrs. Ass’n v. Sor­rell, 272 F.3d 104, 115 (2d Cir. 2001) (cit­ing Healy v. Beer Inst., 491 U.S. 324, 332 (1989); and then cit­ing Brown-For­man Dis­tillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 582, 90 L. Ed. 2d 552, 106 S. Ct. 2080 (1986)).

34. Healy, 491 U.S. at 337.

35. 186 U.S. 380, 387 (1902).