Page:Delaware v. Pennsylvania (2023).pdf/19

Rh with respect to face values and customer use. But Delaware never explains why those purported differences are relevant to our assessment of similarity for FDA purposes. Since money orders and the Disputed Instruments are comparators that are not identical, they are likely to be different in some respect. The real question is which differences and similarities matter. And none of the differences Delaware identifies relates to the statutory text or ordinary meaning of a money order, nor do they otherwise undermine the analysis of similarity we outlined above.

Undaunted, Delaware attempts to make the differences it identifies seem more material by proffering an alternative vision of the FDA. In this regard, Delaware asserts that the FDA was really an effort to dissuade States from adopting costly recordkeeping requirements, the costs of which might then be passed along to low-income consumers. Its argument is that, because the Disputed Instruments are, when compared to money orders, generally larger-value instruments that are typically purchased by consumers who can more easily absorb any additional recordkeeping-related costs, those products simply do not implicate the FDA’s core (cost-related) concerns and are thus not “similar” to money orders.

But the text of the FDA bears no relationship to Delaware’s cost argument. Indeed, the statute says absolutely nothing about the rising costs of money orders for low-income individuals. See §2501. “[T]he cost of maintaining and retrieving addresses of purchasers of money orders and traveler’s checks” is only mentioned to explain why a mandatory recordkeeping option (which we had suggested in Pennsylvania, 407 U. S., at 215) was not selected as the statutory solution to the inequitable escheatment problem that the FDA plainly addresses. §2501(5).

Nor does it matter that there would be no inequitable escheatment with respect to the Disputed Instruments if MoneyGram did not factor into the equation, as Delaware