418
Souter, J., dissenting
The majority recognizes, but discounts, this difference between laws favoring all local actors and this law favoring a single municipal one. According to the majority, "this difference just makes the protectionist effect of the ordinance more acute" because outside investors cannot even build competing facilities within Clarkstown. Ante, at 392. But of course Clarkstown investors face the same prohibition, which is to say that Local Law 9's exclusion of outside capital is part of a broader exclusion of private capital, not a discrimination against out-of-state investors as such.7 Cf. Lewis v. BT Investment Managers, Inc., 447 U. S. 27 (1980) (striking down statute prohibiting businesses owned by outof-state banks, bank holding companies, or trust companies from providing investment advisory services). Thus, while these differences may underscore the ordinance's anticompetitive effect, they substantially mitigate any protectionist effect, for subjecting out-of-town investors and facilities to the same constraints as local ones is not economic protectionism. See New Energy Co. of Ind. v. Limbach, 486 U. S., at 273-274.8
from an economic theory of free trade. The function of the clause is to ensure national solidarity, not economic efficiency").
7 The record does not indicate whether local or out-of-state investors own the private firm that built Clarkstown's transfer station for the municipality.
8 In a potentially related argument, the majority says our case law supports the proposition that an "ordinance is no less discriminatory because in-state or in-town processors are also covered by [its] prohibition." Ante, at 391. If this statement is understood as doing away with the distinction between laws that discriminate based on geography and those that do not, authority for it is lacking. The majority supports its statement by citing from a footnote in Dean Milk, that "[i]t is immaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate commerce," 340 U. S., at 354, n. 4, but that observation merely recognized that our dormant Commerce Clause jurisprudence extends to municipalities as well as to States and invalidates geographical restrictions phrased in miles as well as in terms of political boundaries. This reading is confirmed by the fact that the
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