now the complaint in this case supported relief under torture separate theories and each legal theory is an independent basis for the personal it there are theories under the dormant aspect of the commerce clause and there are theories under the fourteenth absolutely balancing is a higher standard of review and rational basis for any and certainly on our practical effect of discrimination argument that triggers strict scrutiny and if a law survives strict scrutiny i think everyone can agree that it would probably also survive rational basis and so since the commerce clause is the higher standard of review i think it makes sense to start with those cases with those arguments and i think probably the most analogous case here is plaintiffs argued that the administrative burdens of the certificate of need application process were so high as to be unconstitutional and what the court said in meditation was that this was clearly a burden on interstate commerce that it limited market entry and that burden to interstate commerce and that those burdens were not justified by any local benefits generated that they could find in the act really the big difference between this case in bed again is that in message again the court had exactly or the complaint clearly alleges that there are no local benefits generated by virginia certificate of need law and certainly we will have to fight about that on remand and it may be that this government is generally  it's the task of the legislature to balance burdens and benefits that's what legislators legislators are how do we keep the pike balancing  it is absolutely a deferential test this court has repeatedly said so it is perhaps less deferential than the rational basis test but however a higher burden the plaintiffs will have to carry and remember they're entitled to introduce evidence attempting to carry that burden let me process give up the process because of the large expenses or for example how long does the process take in practice that something this court looked at in the young voters case where the statute said the process would only take a certain number of months but the fact in reality the process took far longer we don't want to see how many people are not even beginning the certificate of need process and there isn't an excuse from a company called curbeam testifying to it's certainly not just the plaintiffs actually found the law failed like that saying that this law off effectively prevents people from purchasing this kind of low dollar we're challenging that it makes minimum purchases of this low dollar wittman much more expensive and it doesn't prevent them from purchasing well as a practical matter your honor frequently does the equipment we're talking about can be purchased on the open market for as little as one hundred one hundred fifty thousand dollars and we're talking about a process especially it's hideously expensive and it is it isn't really fair to believe that somebody is going up her to use the equipment and then find selves and make capital investment necessary practice and then find themselves simply not able to make a go of business because there are l of two radiologists to astro in rolla just operating in close proximity to one another so in a sense not i can see scenarios where the certification process to some extent would actually facilitate or choose that's certainly something the government would be entitled to argue on remand your honor but it's a determination it would have it there was no evidence that shows that it's were actually achieved in this particular market and here we'll be able to present plenty of evidence that that's the case with respect to these and purchases is going to be able to quantify our lives things of the  where all we have are the allegations of the complaint taken is true and so here we're balancing our burdens which the complaint says are very heavy against benefits that the complaint says don't exist on a fact record the balancing inquiry might become part and it's certainly possible that discovery doesn't go our way we're not able to build back record i expect as i stand here today but all we have today is a complaint and the complaint says we're balancing very heavy burdens against benefits conclusions were actually reaffirmed by a joint f t c d o j study in two thousand and four that we cite in the complaint paragraphs ninety six to ninety nine showing that what the federal government has concluded that these programs don't actually reduce health care costs they don't improve health outcomes they don't have the local benefits that are promised that what they turn into is essentially a way for powerful local interests to protect their own economic advantage from outside intrusion that's why the federal government has first that was exactly the situation in yamaha motor corp and yamaha this court acknowledged that what it called those brave enough to try to open new dealerships would almost certainly be virginians but it still found a prohibition on opening new dealerships  balancing test but as a second response i don't think that's actually an accurate way to describe how her genius certificate of the program works because the one thing at the in state established doctors don't have to deal with is the objection upgrade your quit meant you can do that without going through the process again you can purchase this and replace an existing piece of equipment without bearing these burdens but second of all here an existing certificate of need holder there's one thing you don't have to worry about if you're going to th any process and that's that you yourself will come in and object and turn it from this eight month process into this four to five year long process that the in state out of state problem facts underlying the statute to a court room fact finding revie and the case law of this circuit of the supreme court makes it clear under the rational basis to have stand even under  on that legislative facts are not subject to judicial in court for  what they say is that the certificate of need of a program does not serve the economic function that the general simply thinks it does and they say that it doesn't happy to give local benefits which is the flip side of the same coin and so because it was clear that if they survive the motion to dismiss nobody would have any idea what to do now because you can't have a trial on these kinds of challenges we win for fact that there are some agencies and some people and and president reagan signing statement may not agree with the general simply it is not the function of a corporate that's not my question my question had to do i'm just driving  has something akin to this defeat of need program i'm not concerned i cannot point to specific programs of i will say that that the entire regulatory state is subject to the same criticism that there are a lot of people who don't believe that economic regulation by the government actually functions the way it's supposed to do with ever since the repeal of the overturning of law and i'm not getting into a lot mary not good i'm not suggesting that this necessarily leads anywhere but i'm just trying to determine is there anything else out there in the national economy anything at all that mirrors this kind of thing i'm confident there is because i have so little confidence in in the fact that we're regulating officially everywhere but i'm not i'm not an expert in this field so i don't have one point to run with it the troubling thing about it is it is here on  theory and you look at all these different time periods in the statute and you say well this could really be stretched out on over a period of years  the question i have is when you have something where the potential for delayed abuse does seem to me to be apparent in least to exist attentional i'm not sure whether it does or doesn't but the  exists should we look into it alone it further with take some some evidence and find out what's actually happened but i have two answers to the have home one is that if you're really going to plead that then you have to investigate and plead laws of all facts and not just me your conclusion that that's happening and we happen to know of because it's so matter of public record subject to ship to judicial notice that in two thousand and eleven forty five of fifty three applications were proved and we also know that i certainly knew when after a little bit of discovery but that leads me to my second point i don't know how i should be subjected to discover the real theory is that the living god wants to have judicial review in a in courtroom factual session of the legislative a judgment the legislative facts supporting the enactment that says this is a good way to economically regulate the medical industry and it's within the leadership you know if they were there the response to that is that the you're correct it seems to me in the sense that the high balancing ought to be deferential to us and in the same way that rational basis equal protection is a very deferential task but on the other hand it doesn't mean that it doesn't exists and if we take your point of view wouldn't we be reading the would we be reading pipe balancing beneficial can i move backwards up the complaint and get to pike church because it seems to me that one privileges and immunities they knowledge that that couldn't be reached below and can't be reached here that would have to go to the supreme court then they very much to address that but him per luminary point of that is i would like to claim the same in title meant to dismissal under equal protection do the rational basis as well because there was a time when this court presumed to make such binding judgments for society under the guise of interpreting the due process clause or should not seek to reclaim that ground for judicial supremacy under the banner of the dormant commerce clause and i would also call the court's attention to kentucky versus davis where the court said in a in a on tax case if we had to balance the effect of the on the interstate commerce against the local policies of selling these where the legislatively determined harm is making the very sales that they want to make here in the legislature has determined that those sales are contrary to the public good that under the pike church exists and it's being averted then you know that that you can't have a balance this going to tip against the state's position record row or is it retained i mean i want to know i've got these cases out there that i have to of circumstances one is where the state is actually not just having an indirect effect of its police power on interstate commerce which is usually the case with the police power  there and it discriminates there is no it well i'm not no i think the i think the reason the courts whipped too high with respect to the size of the trucks in the mudflaps is it didn't discriminate on its face a anybody i think it was just a direct way relation of commerce that was thought to be to too much commercial regulation though we states only have police power and they get away with the police power if it only indirectly affects commer i think the other category of popeye case is where the discrimination is not present with sufficient clarity on the face of the statute but the court finds that it if there's been a pretense a pretext for example of the other or the rolling case in puerto rico of the grandfathering was corrupt it was obviously intended not to who really have a regulatory scheme but to protect the local interest a yamaha was the d is is wasteful sales i don't see how that if the fact that the process lasts a long time implicates commerce clause concerns and remember the whole capper of the whole regulatory state as it existed in most of the country both state and federal one of the criticisms of it is it takes for ever and so if that were a commerce clause of jack shit and then we're really making like church statute of their time limits on and statute and also remember you can only jack mean they're not positing that the process absalom objection takes forever because they are clear statutory limits on how long they they're talking about  objections and but if you so seems to be somewhat of a commonsense application saying that these things are problematic i mean you know discriminate by origin or citizenship most of our regulation restricts competition and the legislative theory here right or wrong in some platonic platonic sense is that by in west virginia made me wish that we just has a little more sophistication when we talk about medical care but it's it's a saying this this statute comes with a presumption of constitutionality of regularity it's it's like same rules apply whether you're a new york corporation running a facility in virginia or a hawaiian corporation or virginia corporation there is no facial discrimination but now there's discrimination in the sense that you call them hope ration or new york corporation but the point is once they are essentially domestic it they have an operation genya they get a leg up on people they have a leg up on people from the same place they have  the one thing i would ask is if it goes back to be looked at more that it be made clear that the underlying economic theory of the general assembly is not on the table for or of of courtroom fact finding no i don't think anybody thinks it it that we that it is it's a deferential task the question is it's some point and and we don't know our state medical providers of people purchasing medical equipment that could conceivably be of great benefit to some of the people in  in dorm or commerce clause with the others because they were so open that they wanted to work to litigate in a courtroom setting the underline legislative facts and we don't think that's appropriate and we also don't think they adequately pled u absolutely doesn't matter for commerce clause fergus's and i would want the forest to american trucking associations where the advantage group an american trucking associations was trucks with pennsylvania plates the supreme court didn't inquire into whether it was