[00:00:00] Speaker 01: Case number 22-7014, Metropolitan, Washington Chapter, Associated Builders and Contractors, Inc. [00:00:07] Speaker 01: at Balance, Miller and Long Concrete Construction, Inc. [00:00:11] Speaker 01: and Emmett Morris, Jr. [00:00:12] Speaker 01: versus District of Columbia, a municipal corporation, a Muriel Bowser in her official capacity as mayor of the District of Columbia. [00:00:20] Speaker 01: Mr. Kiernan for the balance, Mr. Phillips for the Apple East. [00:00:29] Speaker 04: Hey, please support. [00:00:31] Speaker 04: Um, Judge Edwards used to tell his Georgetown lost his half facetiously. [00:00:36] Speaker 04: The only thing appellate courts care about is the case properly before us. [00:00:40] Speaker 04: What's the standard of review? [00:00:42] Speaker 04: I'm going to address both of those points. [00:00:43] Speaker 04: I know that's what's on the court's mind, but I don't want to lose sight of the bigger picture, which is that the decision appeals from is confirms or affirms the proposition [00:00:56] Speaker 04: that in creating a municipal government in the District of Columbia, Congress intended that that government have the unreviewable authority to enact economic protectionist legislation that no other state or city in the United States would have the constitutional authority. [00:01:14] Speaker 06: What do you mean unreviewable? [00:01:16] Speaker 06: It's reviewable by Congress and it's reviewable by courts. [00:01:20] Speaker 06: I mean, it's automatically reviewable by Congress. [00:01:22] Speaker 06: You don't dispute that. [00:01:24] Speaker 04: Well, Congress always has the authority to legislate for the district. [00:01:28] Speaker 06: Sure. [00:01:29] Speaker 06: So it's reviewable by Congress. [00:01:31] Speaker 04: Well, Congress has not acted on this issue. [00:01:35] Speaker 06: Okay, but that doesn't mean it's unreviewable. [00:01:36] Speaker 06: It just means Congress chose not to intervene. [00:01:40] Speaker 04: Congress chose not to act. [00:01:41] Speaker 04: I agree. [00:01:42] Speaker 06: Okay. [00:01:42] Speaker 06: And the courts can review and here we are reviewing the question is simply [00:01:47] Speaker 06: just because you can get reviewed doesn't mean someone wins on the merits of anything they bring. [00:01:51] Speaker 04: Understood. [00:01:53] Speaker 04: My point is that this type of economic protectionist legislation has routinely been struck down all over the country under constitutional provision. [00:02:03] Speaker 04: The lower court said that neither the Privileges Immunities Clause nor the Due Process Clause affords an avenue to review it, even though Privileges Immunities would apply everywhere else in the [00:02:15] Speaker 04: And to process, the court said, that's never been done before. [00:02:18] Speaker 04: It reminds me of the case you just heard. [00:02:20] Speaker 04: That's never been done before, and therefore, we're not going to. [00:02:23] Speaker 04: And it all comes back to, obviously, this court's decision and the Duhay decision and the Duhay case back in the 30s, which the court said that when Congress legislates for the District of Columbia, it is not subject to the privileges and immunities clause, a proposition with which we do not disagree. [00:02:42] Speaker 04: The question is, [00:02:43] Speaker 04: as I understand the argument made by the district, is whether somehow that immunity from the application, that exclusion from the privileges and the immunity scope has somehow traveled through to the city council, the district, and that that was done intentionally by Congress through the Home Rule Act in order to, in some sense, make up for the fact [00:03:10] Speaker 04: that Congress otherwise limited the council's authority, for example, to enact a commuter tax, to affect the jurisdiction of local courts, et cetera. [00:03:19] Speaker 07: What's your argument with respect to standing, though? [00:03:21] Speaker 07: I mean, you've got Metro Washington as a corporation here that generally does not apply to the pre-legal community as well. [00:03:28] Speaker 04: So we are here, Metropolitan Washington is the remaining party in this case. [00:03:33] Speaker 04: We are here through associational standing. [00:03:35] Speaker 04: We met that in the hunt test below, essentially not really disputed, because this issue has remained to the work of our organization. [00:03:46] Speaker 04: It is an issue of which we have been involved in lobbying and in the concern of our members and their employees for many years. [00:03:54] Speaker 04: We've litigated this issue elsewhere in the chapters. [00:03:58] Speaker 07: But is that standing distinct for privileges and immunities versus commerce laws? [00:04:04] Speaker 04: The issue, I think, Your Honor, on the privileges and immunities analysis is privileges and immunities reflects individual of an individual right of a person. [00:04:13] Speaker 04: But it's also a structural limitation on the power of government. [00:04:16] Speaker 04: Our members and their employees are the vehicles through which the council is [00:04:23] Speaker 04: in which the law is acting to discriminate against non-residents. [00:04:28] Speaker 04: In other words, we're the ones that have to comply with the law and who suffer the penalties if not complied. [00:04:35] Speaker 04: And we have to do that to our employees. [00:04:38] Speaker 04: So I think the privileges of immunities analysis, while the employees may have their own separate claim, which the district court below found these individuals did not [00:04:51] Speaker 04: approved out. [00:04:52] Speaker 04: But while individuals may have that claim, I don't think that diminishes the right of the organization, of the association, I should say, to speak to the issue of those immunities because they are the ones who are actually directly impacted and have to modify their conduct and suffer penalty. [00:05:09] Speaker 07: But METRO is a corporation. [00:05:13] Speaker 04: Well, it's a chapter of a larger organization. [00:05:16] Speaker 04: It's an association of a number of [00:05:18] Speaker 04: companies, gold proprietorships, and others who are members of this trade union. [00:05:25] Speaker 06: But all your members are businesses that are not protected by the privilege and immunities clause. [00:05:32] Speaker 06: But our employees are, and more importantly... Are you a trade association of those employees? [00:05:37] Speaker 04: I'm sorry? [00:05:37] Speaker 06: Are you a trade association that reports to represent those employees? [00:05:41] Speaker 04: They don't separately represent the employees. [00:05:43] Speaker 04: We are working with the companies. [00:05:45] Speaker 06: The companies. [00:05:46] Speaker 04: The employees and it's the companies [00:05:48] Speaker 06: To have standing, the hunt standing, that you're the associational standing, on the grounds of the employees, your members would have to be the employees. [00:05:59] Speaker 06: And you would have to show that the interests you advance are those of employees. [00:06:05] Speaker 06: And that can be very distinct from the businesses that employ them. [00:06:13] Speaker 04: But I think in this case, Your Honor, associational, because it is [00:06:18] Speaker 04: because the statute acts against the employers who are required to then take the steps that we say are unconstitutional as to our employees, we're the vehicle for which this is implemented. [00:06:32] Speaker 04: Our members don't want to do that. [00:06:33] Speaker 04: They're the ones. [00:06:35] Speaker 06: No, I understand, but they're not protected by the, they can bring the dormant commerce clause challenge, but those members may feel very much injured. [00:06:42] Speaker 06: I don't think anyone has quibbled with those assertions in this case, but they simply aren't protected by the Privileges and Immunities Clause, and I haven't heard you dispute that substantive point about the scope of the Privileges and Immunities Clause. [00:06:58] Speaker 04: What I'm disputing, Your Honor, is that it's limited in its application to the individual right of an employee as opposed to it is also a structural limitation [00:07:11] Speaker 04: on the power of government to enact. [00:07:13] Speaker 06: Well, of course it is. [00:07:14] Speaker 06: I mean, the Constitution is filled with structural limitations, but that doesn't mean everyone can enforce them. [00:07:22] Speaker 06: Not everyone is persons for purposes of other constitutional provisions either. [00:07:28] Speaker 06: Sometimes they are, sometimes they aren't. [00:07:29] Speaker 06: It depends on the provision. [00:07:30] Speaker 06: But for this one, I thought it was recognized in the law that businesses are not protected by it. [00:07:40] Speaker 04: Businesses, as I understand the law, the business, a corporation, does not under firm precedent have its own privileges and immunities claimed as against the government. [00:07:54] Speaker 04: A business does not have the rights to travel, for example. [00:07:57] Speaker 04: It doesn't have that. [00:07:59] Speaker 04: But this is a different situation in which the residential preference is being implemented [00:08:08] Speaker 04: by directly acting on those employees in a way that is unconstitutional under the Privileged Immunities Clause was applied to the due process. [00:08:21] Speaker 04: The second point is our employers, our members, are not that distinct from their employees. [00:08:29] Speaker 04: They have to deal with the employee on [00:08:33] Speaker 04: and assignments and bidding. [00:08:35] Speaker 06: Of course that's how the employer-employee relationship works. [00:08:38] Speaker 06: But to be, you never claimed in the district court and I've seen no affidavits from employees saying that we have this injury just like we commonly require for associations elsewhere to establish standing. [00:08:52] Speaker 06: I see nothing here in this record that says that you purport to be an association of employees as opposed to of employers. [00:09:04] Speaker 06: Well, you are, you're not an association of employees. [00:09:07] Speaker 06: You're an association of employers who necessarily have employees. [00:09:10] Speaker 06: Is that your point? [00:09:12] Speaker 04: My point was we have sold partnerships in our organization. [00:09:16] Speaker 04: We have, uh, the employees are what should be considered for these purposes as part of our soul whom we represent. [00:09:26] Speaker 04: I think that's appropriate. [00:09:28] Speaker 04: And I think the record was clear that that's what, that's what the standing was below and, and, [00:09:34] Speaker 04: who was on par with the only change now, I think. [00:09:37] Speaker 06: Well, there were employees present in the litigation. [00:09:39] Speaker 04: Well, what was whether the fact that the other parties didn't have the stamina, if you will, continue with the case somehow now deprives us of that, of that standing that we had. [00:09:54] Speaker 04: And I think, and I think under the court's decisions, when, when that Kennedy [00:10:02] Speaker 04: It's not required that the member also be in the lawsuit or on appeal, which is what we have here. [00:10:12] Speaker 04: The district has also raised the issue of prudential standing, which I think dovetails a little bit with the issue the court's raising, which is, are we asserting the rights of parties that are not before the court? [00:10:23] Speaker 04: The answer to that is no, we're not. [00:10:24] Speaker 04: This is the same claim we have asserted from the outset. [00:10:32] Speaker 06: I clarify one other thing. [00:10:34] Speaker 06: I'm trying to understand, because we have that due hay decision from our court. [00:10:41] Speaker 06: And as I understand it, your argument is that the home rule act changed things, made the district subject to the privileges and immunities clause. [00:10:52] Speaker 06: Is that right? [00:10:53] Speaker 06: as a matter of federal legislation. [00:10:55] Speaker 04: As a matter of federal legislation, the municipal government set up by Congress should be limited in its powers by the privilege of these laws or by incorporating the rights or incorporating it into the process, whichever way. [00:11:11] Speaker 06: So they should be, I thought you said that, I thought your argument with that, that they should be, it wasn't normative, but that in fact, the consequences of the Home Rule Act was to subject the district to the privileges and immunities clause. [00:11:24] Speaker 04: I think that's correct. [00:11:25] Speaker 04: I think that's correct. [00:11:26] Speaker 04: When, when the, when the district is acting on its own behalf, Congress is not touching [00:11:35] Speaker 07: But didn't Congress explicitly include the privileges and immunity clause in the organic access, for example, Puerto Rico, Guam, et cetera, but not the Home Rule Act? [00:11:45] Speaker 04: It did. [00:11:46] Speaker 04: It did. [00:11:47] Speaker 04: But I don't think, Your Honor, that that means that they meant to create in the city council a power greater than any other legislature has. [00:11:55] Speaker 04: And part of the reason I say that is because of the legislative history of the Home Rule Act, in which much attention was paid to how are we going to limit [00:12:05] Speaker 04: the scope and power of this new government. [00:12:07] Speaker 04: And to a commuter tax and affect the jurisdiction, of course, was a great attention paid. [00:12:12] Speaker 04: And it seems to me that the idea that silently Congress intended to invest the District of Columbia Council with more authority constitutionally than any state legislature in the country just doesn't make sense. [00:12:28] Speaker 04: I agree. [00:12:28] Speaker 04: The act does not call it out specifically. [00:12:31] Speaker 04: And as the district pointed out in its brief and as we argued below with the judge, [00:12:34] Speaker 04: there is no specific reference to privileges immunity either way in the home rule. [00:12:39] Speaker 04: But I think that the district's position is that's because privileges immunity doesn't limit the power that municipal government and the citizens of the District of Columbia are not entitled to the protections of the privileges immunity laws. [00:12:54] Speaker 04: Presumably when they go elsewhere. [00:12:55] Speaker 04: I think that's an untenable position in this day and age. [00:13:00] Speaker 05: Your position is that Congress said in the Home Rule Act that unless we specifically enact a limitation, the City Council has plenary authority. [00:13:18] Speaker 05: Unless Congress, during the oversight period, disapproves of one of its enactments, [00:13:29] Speaker 05: or otherwise enacts legislation as a federal legislature, changing something that would affect the abilities of the local government under the Privileges and Immunities Act? [00:13:52] Speaker 03: Yes, Judge Rogers. [00:13:53] Speaker 03: That's our position. [00:13:55] Speaker 04: Yes. [00:13:56] Speaker 04: Congress at any time could legislate whether there's an act pending by the council or not pending or during the review period, it can do whatever it wants. [00:14:04] Speaker 04: And that's not the issue in this case. [00:14:07] Speaker 04: I think what is the issue in the case is should the fact that Congress has chosen not to legislate be deemed an endorsement or some sort of congressional action? [00:14:16] Speaker 04: There's no precedent that I could find. [00:14:18] Speaker 04: I'm sure if the district had found it, it would have cited it to the court in which a court has said that because Congress didn't act [00:14:26] Speaker 04: didn't make its own act, but somehow it therefore endorses or adopts it as if it were congressional action. [00:14:33] Speaker 05: There are two aspects to it. [00:14:36] Speaker 05: One, it didn't act during the congressional review period, which is unique to the District of Columbia under the Home Rule Act. [00:14:50] Speaker 05: And it also didn't take other action [00:14:56] Speaker 05: that would address whether the District of Columbia was subject to the Privileges and Immunities Clause. [00:15:09] Speaker 03: Yes, Your Honor, it's both products of that, yes. [00:15:12] Speaker 03: I agree. [00:15:12] Speaker 05: So in that silence, the Court has no option other than to conclude that the Council had this authority [00:15:29] Speaker 05: and now is subject, essentially, as would a corporation in the state. [00:15:45] Speaker 04: I think that's correct, Your Honor. [00:15:47] Speaker 04: The position that we would take is that once this new government is stood up as an independent legislative body, [00:15:56] Speaker 04: subject always to Congress's plenary power to legislate for the district, that it should be subject to the same limitations as every other government in the country regarding its ability to enact this kind of residential preference law, and that Congress's decision not to act in this area should not be [00:16:21] Speaker 04: and I can't find a precedent for therefore being Congress itself is now acting. [00:16:27] Speaker 04: And since Congress isn't subject to privileges and immunities, therefore this action by the city council shouldn't be subject to the same. [00:16:35] Speaker 06: I notice my time is up. [00:16:38] Speaker 06: Judge Rogers, did you have more follow-up questions? [00:16:42] Speaker 05: I think I've taken up enough time. [00:16:45] Speaker 06: Do you know if privileges and immunity clause applies to Indian tribes? [00:16:51] Speaker 04: So I don't know the answer. [00:16:56] Speaker 06: And then I want to just understand your theory. [00:16:58] Speaker 06: So the Home Rule Act, the structure you've been discussing with Judge Rogers, in your view, Congress can't pass a law that rewrites the Constitution, right? [00:17:10] Speaker 06: That's common ground. [00:17:11] Speaker 06: And so the effect of if the Home Rule Act is read the way you propose is then [00:17:19] Speaker 06: then really what it says is as a federal statutory matter, you apply that same protection and legal tests to actions of the District of Columbia as a matter of federal statutory law. [00:17:34] Speaker 06: This federal statute requires the district to color within the lines of the privileges and immunities. [00:17:41] Speaker 04: I agree with that. [00:17:43] Speaker 04: And to just clarify, maybe to push it a little bit, it does not mean that acts of the District of Columbia government [00:17:49] Speaker 04: become congressional statutes just because Congress set up a municipal government and retained, obviously, its constitutional right to act in a clean and refashioned. [00:18:02] Speaker 06: I think I'm trying to make a different point. [00:18:04] Speaker 06: And that is when Congress passes a statute like it did in the child's reference in the Organic Acts for Alaska and Virgin Islands and Guam, [00:18:19] Speaker 06: it can't rewrite the constitution just by passing a law. [00:18:22] Speaker 06: So what it does is in it by a statute, say you jurisdiction will be subject to the same obligations as a state is under the constitution's privileges and immunities clause and courts. [00:18:37] Speaker 06: You'll apply the same legal analysis and same legal tests. [00:18:41] Speaker 06: Um, but it is, and if, and if the district fails to color within those lines, [00:18:47] Speaker 06: is exceeded its authority under the Home Rule Act, much like a federal agency can exceed the authority delegated by Congress. [00:18:54] Speaker 06: The theories Congress would have said, district, you can do A, B, C, and D, but you can't, under your theory, violate the privileges and immunities clause in the process, and you can't violate article one, section 10, and any other arguments that folks wanna make about the scope. [00:19:11] Speaker 06: So if they, if here, if this statute, [00:19:17] Speaker 06: violate. [00:19:18] Speaker 06: If the Home Rule Act brought that protection in and they violated it, that would be a statutory violation that they exceeded their authority under the Home Rule Act. [00:19:30] Speaker 06: Correct? [00:19:31] Speaker 06: Correct. [00:19:31] Speaker 06: Have you made any statutory arguments in your case? [00:19:36] Speaker 06: So you have, you've only argued that the privilege is an immunity clause as its own in its own right as part of the constitution. [00:19:43] Speaker 06: prohibits the district from doing this, not that the Home Rule Act prohibits them from doing this. [00:19:49] Speaker 04: That's correct. [00:19:49] Speaker 04: You have not made that argument. [00:19:51] Speaker 06: The Congress couldn't have changed the content of the Privileges and Immunities Clause with the Home Rule Act. [00:19:57] Speaker 06: The Privileges and Immunities Clause has not changed to my knowledge, has not been amended between Duhey and today. [00:20:03] Speaker 06: Okay. [00:20:05] Speaker 07: How does the Commerce Clause, do you have any distinction in the arguments how it applies with respect to whether the district is extending its own funds versus not doing so? [00:20:15] Speaker 04: On the Commerce Clause issue, Your Honor, as I think laid out in our papers, this is a situation in which the law applies to situations in which the district is not itself a contracting party. [00:20:26] Speaker 04: It is acting as a regulator. [00:20:28] Speaker 04: It is acquiring for purposes of its own regulations, [00:20:31] Speaker 04: private income tax revenue, et cetera, private employer duties. [00:20:36] Speaker 04: And it's very distinct from the Boston case and others where the government is actually using its money to go, you know, contracts for a building or something. [00:20:47] Speaker 07: So you would read the papers to indicate that an as applied challenge was put forward. [00:20:53] Speaker 07: That an as applied challenge was put forward. [00:20:58] Speaker 06: Yeah. [00:20:59] Speaker 06: What's your as applied challenge? [00:21:01] Speaker 06: What are the facts of your as applied challenge? [00:21:04] Speaker 04: Maybe I misunderstood the question, Your Honor. [00:21:06] Speaker 04: I'm sorry. [00:21:06] Speaker 04: We filed this as a facial challenge, basically at a pre-enforcement stage, just as the new law was coming into effect, because the new law increased substantially the requirements and the penalties. [00:21:18] Speaker 04: So when we started the case, it was essentially a pre-enforcement case, because we knew this was coming. [00:21:24] Speaker 04: And then as the case unfolded over 10 years, we supplemented the record with the instances in which [00:21:30] Speaker 04: The law was applied against companies and we argued. [00:21:36] Speaker 06: One more quick question. [00:21:41] Speaker 06: You mentioned sole proprietorships in your membership. [00:21:44] Speaker 06: You're not arguing that the privileges and immunity clause applies to sole, does apply to sole proprietorships as sole proprietorships, are you? [00:21:53] Speaker 04: No. [00:21:54] Speaker 04: What I don't know, Your Honor, checking the client is whether we do have members who [00:21:59] Speaker 04: use the AKA or not a technical corporate form, but an individual by the AKA. [00:22:06] Speaker 04: In other words, they are a business. [00:22:08] Speaker 04: That's just themselves. [00:22:09] Speaker 04: They use a business name, but they're not actually corporations. [00:22:12] Speaker 04: Just that John, John Jones plumbing. [00:22:16] Speaker 07: Okay. [00:22:16] Speaker 07: Um, just to be clear, you know, back to the issue on as applied, um, you mentioned facial challenge, but I believe on the J a record, um, maybe 53, it does say as applied. [00:22:27] Speaker 04: In the design, the original, that may be the original complaint. [00:22:30] Speaker 07: Okay. [00:22:35] Speaker 07: But you, are you suggesting that there's only a facial attack? [00:22:38] Speaker 04: I think that's really what we are. [00:22:39] Speaker 04: The only thing we've pursued. [00:22:41] Speaker 04: Okay. [00:22:46] Speaker 06: Yes. [00:22:46] Speaker 06: Which Rogers, do you have any more questions? [00:22:48] Speaker 06: No, thank you. [00:22:50] Speaker 06: All right. [00:22:50] Speaker 06: Thank you very much. [00:22:51] Speaker 06: We'll give you a couple of minutes for a battle. [00:23:04] Speaker 00: Good morning, and may it please the court, Graham Phillips, on behalf of the District of Columbia. [00:23:08] Speaker 00: As the Supreme Court deserves surely for the enactment of the Home Rule Act, unlike either the states or territories, the district is truly sui generis in our governmental structure. [00:23:19] Speaker 00: In many respects, that unique constitutional status operates to the detriment of the district and its citizens, most notably in denying them representation in Congress. [00:23:30] Speaker 00: But there are certain provisions of the Constitution that are limitation [00:23:34] Speaker 00: restrictions explicitly framed as limitations and restrictions upon states and thus do not apply to the district unless Congress extends them to the district by statute. [00:23:45] Speaker 00: The Privileges and Immunities Clause is such a provision. [00:23:48] Speaker 00: It does not, of its own force, apply to the district because it applies to states as this Court has held. [00:23:55] Speaker 00: It has not been statutorily incorporated against the district and it is not indirectly applicable through the Fifth Amendment's due process. [00:24:04] Speaker 00: So if this court reaches the merits of Metro Washington's privileges and immunities argument, it should reject it. [00:24:11] Speaker 00: But I don't think this court should reach those merits because Metro Washington, which is the sole challenger here, lacks prudential standing to make a privileges and immunities argument. [00:24:22] Speaker 00: And it's that lack of prudential standing that I want to focus on first. [00:24:26] Speaker 00: In particular, I'd like to push back against the notion that we forfeited this issue in any way. [00:24:32] Speaker 00: In our very first filing in the district court, in our motion to dismiss, we specifically argued that Metro Washington and its corporate members could not bring a privileges and communities argument. [00:24:44] Speaker 00: And the district court agreed with us. [00:24:46] Speaker 00: In its motion to dismiss ruling at joint appendix 87, footnote 9, the district court wrote that Metro Washington and its corporate members, quote, do not have standing to challenge the First Source Act under the clause, end quote. [00:25:01] Speaker 00: And that was a ruling about prudential standing, even though the district court did not use the word prudential. [00:25:08] Speaker 00: And I think we know that because that ruling followed after a sort of lengthy explanation of why Metro Washington and its corporate members did have Article III standing to challenge this statute. [00:25:19] Speaker 00: And I just want to make clear that our argument here on appeal is not an Article III standing argument. [00:25:25] Speaker 00: It is a prudential standing argument. [00:25:28] Speaker 00: So that issue was both pressed and passed upon below. [00:25:32] Speaker 00: So I don't think there's any argument that we have forfeited in any way. [00:25:37] Speaker 06: As a practical matter- Did you have an obligation to renew it? [00:25:41] Speaker 06: A summary judgment? [00:25:43] Speaker 00: Oh, I don't think so. [00:25:46] Speaker 00: And I don't know why it would have made sense to do so, because there remained individual plaintiffs throughout the entirety of the proceedings below. [00:25:56] Speaker 00: The trial court had already ruled as a matter of law correctly that the corporate entities could not make this type of argument. [00:26:02] Speaker 00: And then we still had to address it because there were the individual plaintiffs. [00:26:08] Speaker 00: So I'm not aware of any precedent that would say we had to renew that. [00:26:12] Speaker 00: And I don't think Metro Washington has argued specifically that we needed to renew it in that way. [00:26:20] Speaker 00: So just on the substance of the prudential standing, I think it's fairly straightforward. [00:26:25] Speaker 00: Corporations do not have rights under the privileges and immunities clause. [00:26:29] Speaker 00: That's settled precedent. [00:26:30] Speaker 00: And so the only way that Metro Washington can conceivably be here invoking the privileges and immunities clause is if it's sort of implicitly invoking the rights of third parties, namely non-resident workers. [00:26:47] Speaker 00: But in their opening brief, they sort of, not sort of, explicitly said that they are not seeking to invoke the rights [00:26:55] Speaker 00: anyone else. [00:26:56] Speaker 00: And I think my friend on the other side conceded that again here at the podium. [00:27:00] Speaker 00: So I think, I think that's the end of the matter. [00:27:02] Speaker 00: If they're not trying to invoke someone else's rights and they're truly only trying to invoke their own, they don't have any. [00:27:10] Speaker 00: And that's, that's the end of the matter. [00:27:13] Speaker 06: Um, but even if you sort of, well, they say they represent by representing [00:27:18] Speaker 06: the businesses, they're necessarily also representing their employees who are burdened by this. [00:27:23] Speaker 00: Yes, I think that's incorrect. [00:27:25] Speaker 00: I think they don't cite any authority for that proposition, I think, because there is none. [00:27:30] Speaker 00: An employer and its employees are very much distinct legal entities that often have divergent or even actively adverse interests. [00:27:38] Speaker 00: And they are a very different party. [00:27:43] Speaker 00: And one [00:27:44] Speaker 00: An employer could try to invoke third party standing for employees. [00:27:50] Speaker 00: We're not saying that they can never sort of obtain that type of third party standing, but Metro Washington has not done so here. [00:27:57] Speaker 00: Again, they explicitly sort of disavowed this and have not grappled with the sort of well-settled law about how you show that you can have third party standing. [00:28:07] Speaker 00: So I think even if they had sort of articulated that in the reply brief, it would have come too late, but it's not there either. [00:28:14] Speaker 00: Um, so I think that that can be the end of, uh, the court's, um, analysis on the privilege and immunities issue. [00:28:24] Speaker 07: Um, but I'm, and just to go back, if we agree with associational standing, does your potential standing argument fail? [00:28:32] Speaker 00: No, thank you for asking that. [00:28:34] Speaker 00: They're, they're distinct. [00:28:35] Speaker 00: And so we're not disputing that Metro Washington has associational standing to sort of, um, [00:28:41] Speaker 00: I think practically what that lets them do is stand in the shoes of their particular members, the particular members that they have identified in this litigation, and they have identified some, but all of those are corporations. [00:28:53] Speaker 00: So associational standing sort of gets them down one level, but it gets them down to a level where the parties are still corporations who lack any privileges and immunities rights. [00:29:05] Speaker 00: So I don't think that helps. [00:29:07] Speaker 00: There was some brief mention here about [00:29:09] Speaker 00: that they may have members who are sole proprietors. [00:29:14] Speaker 00: I can't say that that's not true, but I don't think that matters either for two reasons. [00:29:18] Speaker 00: First and most importantly, because no such sole proprietor has been identified in this litigation. [00:29:24] Speaker 00: And this supports case law about association standing. [00:29:27] Speaker 00: So you do have to sort of specify who are the members of your association. [00:29:31] Speaker 00: who suffered the requisite injury in some form during the litigation. [00:29:36] Speaker 00: And no sole proprietor has been identified here. [00:29:40] Speaker 00: Just as a sort of secondary matter, you know, again, that even setting aside the court reform problem, the employers are not the ones being discriminated against on the basis of residency. [00:29:54] Speaker 00: This law treats all employers exactly the same, whether they're a District of Columbia employer or a Virginia employer. [00:30:01] Speaker 00: So even if we didn't have this sort of categorical bar as to corporations, which we do, they would still separately not have first party standing because of that additional problem. [00:30:17] Speaker 06: Do you know if privileges and immunities applies to Indian drugs? [00:30:20] Speaker 00: I don't, Your Honor. [00:30:21] Speaker 00: I had not considered that question before you asked it. [00:30:26] Speaker 07: The one with respect to the privileges in a, um, I'm sorry. [00:30:30] Speaker 07: Okay. [00:30:31] Speaker 07: Well, with respect to the privileges and immunity clause, does it matter, um, if Congress passes legislation versus here, the district of Columbia passing the legislation? [00:30:42] Speaker 00: Um, well, so when Congress acts, it unequivocally is not constrained by the privileges and immunity clause. [00:30:49] Speaker 00: You know, our position is that the district of Columbia council is not either. [00:30:53] Speaker 00: It's, it's, it's not, [00:30:55] Speaker 00: sort of directly by virtue of the Constitution, because it's not a state, and Congress has not constrained it by statute to apply privileges and immunities clause. [00:31:05] Speaker 00: We don't dispute that Congress could do that for the district in the way that it has done for other territories like Puerto Rico and Guam. [00:31:15] Speaker 00: But in point of fact, it has not done so for the district. [00:31:23] Speaker 00: And I'm happy to delve further into that if the court has any questions. [00:31:31] Speaker 00: I guess maybe one thing I'll raise that conceivably could matter either for this issue or the Dormant Commerce Clause, Judge Schatz, you raised the question about there is one reference in the complaint that says as applied. [00:31:43] Speaker 00: But there's no explanation either in the complaint itself or in anything that subsequently happened in what sense this case [00:31:52] Speaker 00: entails an as applied challenge. [00:31:54] Speaker 00: I think my friend on the other side has recognized that. [00:31:57] Speaker 00: We are only dealing with the facial challenge. [00:31:59] Speaker 00: And I think that would matter if this court were reaching the question of how the privileges and immunities substance plays out here. [00:32:09] Speaker 00: But I don't think the court should for either of our arguments in parts one and two of our brief. [00:32:15] Speaker 00: And I also think it matters for the dormant commerce clause issue because [00:32:23] Speaker 00: This act does very much apply in situations identical to those discussed in white. [00:32:29] Speaker 00: And we, we gave, we just gave two examples in our brief of the types of projects or contracts that really are the same exact thing as white. [00:32:36] Speaker 00: It is the district of Columbia spending its own money to purchase services for itself. [00:32:42] Speaker 00: And that's exactly what was said. [00:32:44] Speaker 06: Is there any dispute in the record that at least some [00:32:47] Speaker 06: of the jobs that are covered by the First Source Act include direct contracts between the district and companies to build something for the district? [00:32:59] Speaker 00: I don't think there is. [00:33:00] Speaker 00: I don't think there can be. [00:33:02] Speaker 00: I mean, that's an issue of the record, Your Honor. [00:33:06] Speaker 00: I think it's just an issue of the meaning of the statute. [00:33:08] Speaker 00: I mean, I think just on its face. [00:33:09] Speaker 06: I was trying to say that on its face, but it would actually happen. [00:33:14] Speaker 06: This is opposed. [00:33:15] Speaker 06: It would seem silly to think that that was just thrown in there for those purposes. [00:33:18] Speaker 06: But I just are there examples that you're aware of that are in the record or a matter of public knowledge about this? [00:33:28] Speaker 00: Yes, your honor. [00:33:29] Speaker 00: So we discussed two examples in our brief. [00:33:32] Speaker 00: Let me see if I can. [00:33:33] Speaker 00: I think it's page 30 or 40 of our brief. [00:33:35] Speaker 06: Yeah, I was just trying to make sure that those aren't, there's no dispute about those, no disputed facts or they're in the record or. [00:33:41] Speaker 00: Well, so I don't think they're in the record. [00:33:44] Speaker 00: I don't think those particular examples were raised at summary judgment, but the contracts themselves are publicly available through the contracting portal that we identified there. [00:33:56] Speaker 00: As are many others, I just thought these were sort of clear examples. [00:33:59] Speaker 00: And the reply group does not sort of dispute that those are indeed [00:34:04] Speaker 00: on tracks that sort of fit our description or subject to the act. [00:34:08] Speaker 00: Um, so I don't, I don't think there really can be such a dispute that it applies in those circumstances. [00:34:13] Speaker 00: And those in that circumstance, it's indistinguishable from white and is therefore constitutional under the commerce clause for the same. [00:34:24] Speaker 07: Just curiously, is the peculiar evil just kind of not being able to text the commuters or commuters taking the jobs away from residents? [00:34:33] Speaker 00: I think it's, it's more of a former, your honor. [00:34:35] Speaker 00: It's not, um, we have not argued that sort of non-residents are the cause of district unemployment, but the problem that we have highlighted is that, um, is, is the taxation issue. [00:34:48] Speaker 00: Yes. [00:34:52] Speaker 00: I'm happy to answer any for the questions that the panel has, but if not, we'll rest on our briefs. [00:34:59] Speaker 06: Mr. Rogers, do you have any questions? [00:35:00] Speaker 02: Thank you. [00:35:03] Speaker 06: Thank you very much. [00:35:07] Speaker 06: Mr. Kiernan, we'll give you two minutes. [00:35:13] Speaker 06: Do you dispute the contracts referenced on page 40 of their brief, the one with the Metropolitan Police Department and one with the Department of Transportation are sort of direct contracts involving the district and the construction [00:35:35] Speaker 06: Do you dispute their description of those, the existence or description of those contracts? [00:35:40] Speaker 04: I don't dispute the existence of the contracts. [00:35:42] Speaker 04: The one I'm thinking of, I can double check, was had to purchase the police car. [00:35:48] Speaker 06: It's not construction. [00:35:49] Speaker 06: There's two there. [00:35:49] Speaker 06: There's a department of transportation. [00:35:51] Speaker 04: I don't think they exist. [00:35:52] Speaker 06: Okay. [00:35:54] Speaker 06: Any questions from my colleagues? [00:35:55] Speaker 06: No. [00:35:57] Speaker 06: All right. [00:35:58] Speaker 06: Thank you very much. [00:35:58] Speaker 06: The case is submitted.