our next case this morning is park pet shop versus the city of chicago that prevented local retailers from selling hats dogs cats and rabbits so it doesn't if they were bought from a breeder and it allowed them to  it is then all for the breeders from participating in the local chicago marketplace the city refers to the band as a puppy mill band that only capsule is part of the of the the law prevents both puppy mills and small breeders or ethical breeders from their outside sea chicago from participating because the only way that a foreign breeder can participate in the market is by using a retailer that is how all of them do it the law however allows local breeders to participate within the city limits selling directly  that this is not facially discriminatory way i could read that it's helpful and can we agree that it does not have extraterritorial regulatory affairs that is chicago is not trying to regulate the conduct of parties outside chicago ok so your case then becomes one of these frankly rather mushy commerce cla challenges based on burdensome effects and trying to weigh in commensurate costs and benefits well i mean the effect that you're ordering is that c or what's far was able to maryland passed legislation saying that refiners and producers of petroleum products could not own or control retail outlets and in fact its application was only to out of state donors there weren't any in state producers and refiners in maryland and the supreme court said that was ok because the commerce clause does not protect particular channels or modes of distribution and that not be relevant right i mean x in the same could have been said in exxon against maryland you know there are some cases the talk about less discriminatory alternatives but here we don't have a this isn't discrimination the one of the difference is that workers could still have their products sold with it it seems to me that any disadvantage to out of say readers is created by get business from chicago residents than breeders and saying springfield or carbondale illinois i you know are mary and so it's not really a distinction based on state lines so much as it is distance would you agree with that i would agree that it affects both downstate illinois breeders as well as our state fairs  issue or a consumer protection issue is that things sort of get the tory issue he i would i would say that's distinguished by the fact that local breeders can still operate business as usual while foreign bureaus cannot and also distinguish from exxon is that i believe and i can you know to this effect if you if you wish that in maryland the foreign oil producers could still sell their products sell directly there there isn't any discriminatory burden but what i'm saying is that in maryland they could still sell their products on the premises but not through the preferred shares but still through a consumers one hundred percent this is what i'm saying is that and in maryland they could solve their debt or they could sell through a retailer however they don't own that retailer but they still could sell through a retailer they can't they can't sell on the premises of chicago day and night neither can local breeders sell at a pet store in chicago where they can they can people can come to their store or  hours if we are and incidental facts i dare say congress would be under the third category which would be the pike balancing task and so does this do these restrictions outweigh the  if we were to reverse any of this i'm not sure we would be doing you any favors ok because it's a twelve the what concerns me most is that this was a twelve b six dismissal and if you've got a case it's based on public benefits that's it it seems to be very difficult to do on a twelve b six motion but i haven't seen anything here that would lead me to reconsider likelihood of success on the merits but enough to say that we are to reimpose an injunction while you carried out what could be very expensive discovery and potential hearings on the merits but that's that's what concerns me we know that i understand the concern however i think you know we were asking you to invalidate the law and the alternatives were asked there's no way frankly that i would invalidate the law one by reversing the grant of a motion to dismiss it's not facially discriminatory it doesn't try to regulate beyond the chicago's territory the only way you could have a case is by this kind of height balancing test seems to me which as i said i've i've written before that i think it's it's mushy it's messy it's not clear to me you know the supreme court does embrace it from time to time and that's your best hope but that's a very expensive and dicey proposition and we were unable to  citation to a quotation from the district court purportedly and it's not there did anybody check this brief yes did you get and did you check that one apparently for example that the district court seemed not to comment on your evidence that you've offered in your pleadings of discriminatory intent well the district judge here did so again what happened question is li readers i believe i believe there is i do not know for sure is is there anything that would stop a pet shop from selling a shelter animal for more money than the city currently does for example of it if it got an abandoned purebred toy poodle from the humane society can it sell that dog for the market rate that a breeder might charge you know they can't they it's the marketplace different for a bad dog for doctor dogs that is for purebred dogs that people seek out for special purpose that are that are young and i ask you a think gets an abandoned pure but but from my knowledge of the of the of the markets that the the market for abandoned or adopted dogs the prices are much less no matter if it's your bread or or  course first just to correct a repeated misrepresentation regarding the scope of the of the city's puppy mill ordinance park pet shop repeated alleged repeatedly alleges that the ordinance does not of the chicago municipal code is covered whenever they sell a pet animal care facilities car licenses and breeders are considered animal care facilities for purposes of the animal care provisions that so that section fo dash three eight four dash zero one zero which was essential and shut down large scale breeding operations in the city yes yes it applies equally to breeders pet stores and pet stores alike it's explicit on its face that breeders are covered under this ordinance if they attempt to sell has there's no loophole as part pet shop tries to tries to present things but there is an exception for sm limits within city limits i have the internet comment i'm not the that aspect of that i'm not sure if i would if it was internet sales outside the city i believe that would might raise dormant commerce clause issues prohibiting people from out of state to sell but if it were solely located within the city limits i believe that would that would pass normal commerce clause muster because it would not prevent it obviously would not disks politically discriminate against out of state entities it wouldn't benefit local entities over out of state entities those local entities would actually be at a disadvantage to people outside the city that were subject to the city's regulation and again because the city has drugs or something about sort it would seem like it be much harder to argue that that there was a negative effect because over to kill or ordinates when it's illegal wherever you go everybody is kind of on the same level i don't think that the constitutionality would turn on it i think it would make the because if you argue the constitutional defense a lot easier to present but i don't think it's a would be a requirement i don't think it makes it more invalid i think it just really makes it a harder effort on on part of a plaintiff challenging in that circumstance that have to wedge where they could go that is being disadvantaged by subsets about it seems really hard in that in the hypothetical you present enacted the point there was i'm sorry for the the use of factors is obviously tricky in this in this context it was meant to be discriminatory effect you know some sort of discriminatory change and things that mere effects are not  troublesome under the commerce clause that was the school this court pointed that out in international paper just everything that i'm expecting any government does is going to have some sort of effect so apologize for the any lack of clarity there the point was discriminatory effect  turning to the so the second portion part of your question the point there is that these out of state breeders there's no there's no extra tort extra territorial effect for instance they don't have to change how they operate i don't have to have impose new new safety controls that i have to post new housing requirements of any of that sort and to the extent they desired to sell there's no impediment to ba be there's nothing to stop them from selling there might be a change of incentives that a pet they don't have a pet store to go to but there's nothing that keeps them there's nothing it puts that barrier up in the stream of commerce that the dharma commerce is concerned with there's nothing to stop them from selling it's not like the truck regulations that keep people from going to keep trucks from going from a certain state rather than another or taxing out of state entities differently they can still sell if they want to s the internet for instance they're perfectly capable of doing that there's nothing that's been changed there it's the pet stores it's the local entities that can no longer serve as that as the intermediary but the pet stores can still sell to a local consumer the same way they could sell to a local pet store previously well there was the buyer would have to either go visit the breeder if they want to see the pet face to face maybe they could skype  puppy but but but but you basically have to realign our fields of distribution right it changes how that works i agree so let me let me if i could quote the late justice ok is this is this is what this is where the the the i run into trouble in this case in his concurring opinion in c t s against any m x corporation of america he wrote one commentator has suggested that at least much of the time we do not in fact mean what we say when we declare that statutes which neither discriminate against commerce in this windows and nor present a threat of multiple inconsistent birds this one doesn't might nonetheless be unconstitutional under a balancing test and he cites an opinion by a scholar named reagan if he is not correct he ought to be in essence justice was arguing for a limit for avoiding the balancing test under under the dormant commerce clause and there's a that's of that's a strong argument the problem i have is it's not an argument that the entire supreme court has adopted yet and how do regarding pleading standards is just whether facts have been pled that plausibly show that the that the in this case the pipe balancing plausibly comes out in our pets favor and as a supreme court has noted pipe balancing isn't an easy test and i think this court's opinion in national paint reflected that if it were treated as some seem to treat and i believe justice scalia was kind of railing against the kind of lochner part to sort of your interpretation of the pike that has to be clearly excessive i believe this court for it is a national paint that people of and it just interested disinterested people looking at the law and looking at the effects couldn't say that there were benefits in the when everything's when you pop everything on both sides of the scale and here park hasn't made any effort to show they don't even address the city's interest in this in the first place they don't address the city's serious financial expenditures that are resulting from the the unfortunate fact that pets are being are being adopted they're being and the fact that these local consumers are being harmed by getting from these pet stores pets that they don't know because they're getting from pet stores they don't know their origin they don't know how they're raised and years after the fact they're finding out this path has a congenital defect so what will the city's financial interest here looks like it's on the order of several hundred thousand dollars a year so really it's approximately five hundred thousand that the numbers are well the question there would be whether that is a result of a discriminatory effect it's not just effects that there could be effects and we want to make clear we're not disputing that there are you know again any laws presumably you want itself or decision in government suppliers versus by where we're where the courts have said in essence even without discriminatory effects we get into this balancing test effects and i think that's the the key part here for example in hunt those apple regulations that were being imposed were having a discriminatory effect because as i understand the law it was creating the washington apples had a higher take their head above the highest level that other places had they had what was that went up above that and the other states were taking that away they were taking away an incentive for out of states to impose higher regulations higher standards and that was a very you know it was it wasn't necessarily a strong discriminatory effect but it is still a discriminatory effect it was specifically targeting a particular market and impeding that markets ability that particular states markets ability to compete and i think that's one pike it is triggered here there's just no discriminatory effect at all what what out of state breeders can't do local breeders can do there's nothing in the ordinance that you know there are other things to think about well and again we don't dispute that there are that there are effects of the ordinance was designed to have affects it was designed to have effects but that isn't in fact in national pain if mere effects had been enough to trigger tight balancing then this court's decision is hard to reconcile with self because in national paint the city outright barred the sale of certain goods that necessarily pushed those goods out of the city into the suburbs and had an effect to whatever places in the country were were distributing those goods into the city whatever company was selling paint you know it was in missouri if it was in alabama wherever would have been affected but it wasn't discriminatory it didn't give that person a disadvantage merely because they were out of state and it didn't react allocate that advantage to someone in the city no one in the city could could sell paint to the local stores so i think that's really the crux here of the pipe balancing analysis that there are affects their their every law is going to have affects but they're not discriminatory they're not it's not putting the thumb on the scale in the favor of city businesses i see my time is up if if this court has no further questions we respectfully we're going to just ask one quick question  no it is not and and to the extent that that this court has any questions about the city's participation those are judicially noticeable facts it's public record of the city participates in the market for pets through that sports commission on animal care and control these is doing this but that they're taking two contradictory positions at the same time they're saying they're trying to pass a bill to stop puppy mills from outside the city and trying to say at same time we're not affecting rivers outside city from from doing business here so it is they can't have it both ways are trying to have it both ways at the same time seconds you know this this case is the single shabelle from national pain and one critical way and that is in  national paints the all spray paint that's being sold in the city what was not allowed if you produced a spray paint you couldn't sell it if you retail spray paint you could not sell it in this case if you retailed up your bread poppy you cannot sell that however if you produce a purebred poppy you could sell it in this case if you produce it if you're a breeder you can still sell dogs within the city of chicago and that's and you c