collectively refer to as the bar owners i respect the reserve five minutes for a while there are three topics i'll try to cover today your honor depending of course on your questions of the st is the move this issue which i'll address st as a matter of jurisdiction other cases that have come out more recently of judge well it darryl and versus truong you dealt with the issue but it's nothing the court captured most of the standard rules in that opinion and there's a more recent one pool versus city of houston does not established the closure as we've called it and then it was extended and modified slightly over the course of the last few months the latest version of face three order is merely a continuation  alters the previous order it certainly doesn't terminate the order and it doesn't terminate this controversy most importantly it preserves the on site prohibition of the cell of alcohol or food which applies to talks so the prohibition itself is preserved in this phase three hoarder it also preserves the differential classification challenge and that is the eight g versus a distinction that was covered in our bruce it's important on the equal protection claim because it's recognized correctly by judge feldman d the a g versus a distinction is the distinction that drives the bar on this challenge so d this borers equal protection challenge is in fact preserves in the face three or so again it's it's far from what i will also point out and i don't think this can be gainsaid the fundamental problem with the governor for not defining that he thought it was a bridge to let us create a gratuitous hardship in this instance but interpret the order as defaulting to the state definition of bars which is essentially dictated by the the alcohol i pointed out in a context that moved his argument because he did it again with the phase thirty one dollars so rather than taking the opportunity to in fact deal with the controversy which wouldn't be either since lifting the order or at a minimum removing what i think is the grommet of the problem which is the lack of definition of bars they simply did it again so that this current order suffers from the same equal protection problem really is the same vagueness problem which restaurant bars and standalone bars tell me if i'm wrong in as much as the a o r businesses operate at seventy five percent and not connected to any positivity rate but the a bars the standalone bars are more restricted so they're still deferential treatment even under phase three is that is that basic and that's ok so that's that's why we've still got a live issue in terms of your equal protection  case creates a conundrum of constitutional doctrine problems that i think none of which i think are consistent with with with consistent with constitutional law as as as the courts understand it as the courts have traditionally appl rationality life that would be completely ungovernable there's there's at it and it seems to me inconsistent with any objective criteria the court could use to try to evaluate government conduct there is no explicitly stated that if this claim it was a typical rational basis review it would be one thing but it is the jacobson framework not traditional terrace of scrutiny analysis that controls he was very explicit in pointing out that he felt constrained by abbott and jacobson to apply even greater deference in the traditional rationality test just so hayes arrived at the same result but he went a bit a different direction and i think  the the the problem created by abbott shows itself best in his opinion because he created a completely new constitutional analysis he'd be instead of going to acting as judge belmar did the rights analysis st followed by the scroogie analysis which is abbott is that the level of review should be a rational basis test no sub rational basis no hidden deference but still rational basis is that how you would approach this classification yes  claim asks well let's look at the classification that's been assessed and see if there's any rational speculation that justifies differential treatment from a stand alone bar to a restaurant and and then we get you know what i didn't really see in your praise because i agree with a lot of the analysis you've just described once we're at that point why isn't there are extensive logical in evidence based reasons that have been given the standalone bar is closer and with that was the governor's position dr be you the medical expert all you're a lot more with that position why doesn't that in the equal protection claim if there is a rash much more than rational speculation to justify the permit in classification of these two rampant speculation should not be used to absolve a governmental actor from a improper decision that he claims he didn't make i mean the point of this is rational debt that the theoretical theoretical rational deference that that is going to used d is is done because the courts do not want to force the government act or they don't impose a burden for them to actually prove their actual motive for conduct and there is a provide why these two district judges didn't have were incorrect seem that there was a rational basis to classify these two types of businesses differently where in the brief went out that it's  establish supreme court equal protection law say that we don't look at even pretext what we're looking at is the evidence the judge summaries and judge feldman assess and i had before them the white house concerns th question yes or d no i but but but in but the distinction is built on the fire marshall need g c classification in so isn't it true that in our business is one it's revenue is more than fifty percent from food well ok that seems rational to conclude from that there are more seeded they're more separated they are people packed together socially instead they're mostly eating and therefore there would be less oil the various byways and alleys that he's chosen to go down but i would like to go directly to what i think is the heart of the matter and then i'm going to return if i may to the issue of mootness not to downplay the issue of movement because i believe this case is dead as a doornail but i would i want to be sure that i placed before the court of classification that to the issue here the standard which judge begins and has authority to to which mr fairclough stipulated or judge judge summerhayes which is to say this classification is measured by the rational basis test it's the burden of the plaintiffs which they haven't met to negate every conceivable basis for the classification and that rationale if you will may be based upon what many courts of call rational speculation and not simply something resembling a substantial evidence on the record as a whole test that we might apply say in the context of administrative law so st of all the classification the governor relied upon the existing louisiana law differentiation between a  restaurants if you will which must derive more than fifty percent of their total income from the sale of food and nonalcoholic beverages and the a g classification which is free standing bars now as you know even in the so called open safely guidance promulgated by the fire marshal restaurant bar is under this order of the governors it's issue here eighty nine  and twenty restaurant bars were required in effect to stop operating as bars and simply to operate as adjuncts of a restaurant and we've argued that there really was no discrimination at all that in effect all bars were shut down from operating as far as but i'll take it a step further suppose that the classification is that free standing bars were denied the right to make on premises sales of food and alcohol while the bar areas of restaurants if you will world allowed to operate in a restaurant like fashion that was denied to freestanding bars the question then becomes is that a rational classification it isn't complicated it's very straightforward and you know what is the rational basis test again and i don't want to dwell on it i imagine let me ask the case can be disposed of easily simply applying a rational basis test however i will say that i think the proper or a proper reconciliation of jacobson and abbott with the rational basis test as such as this one if you will to stop look and listen and apply the rational basis test with the utmost of care a kind of bespeaks  ultimate standard if you want to call it that or another way of looking at it is to say that rational basis review is at its apex in the context of a public health pandemic but it is still rational basis review because as i think we've all agreed it's almost unimaginable that a court could sustain a law that was by definition irrational so we're not asking the court to do that today we never have and it seems to me that the beginning in the end of the discussion about this is this an academic question which would make the subject of a very interesting laura view article about the exact meshing of jacobson abbott with rational basis i don't think the court has to reach it and i think a very sensible resolution of it is the one i've just said namely jacobson and abbott tell this court that rational basis review is it its absolute apex in this context so again i just briefly to review the irrational basis fandor it as you know feldman but that's a point you've already covered a little bit me i'm the only other point i'd ask is it do you recall the six circuits on post decision from last june in fitness facility yes i thought that they did do essentially jacob equals rational basis again you're up to well with that test being applied yes i'm comfortable with that test being applied with the qualification bat again i think it is a very poignant reminder to this and other courts of of the issue of let's loosely call it diminished judicial competence in this particular area and therefore a great deal of caution being required in the application of the rational basis standard it isn't a different standard it's simply a i would call it a gloss on the rational basis standard and not again i think to the extent judge feldman may not have said that precisely again these are fast moving cases and fast moving law i think that's what he had in mind you know again judge against and you have mentioned many of the points that i would make in terms of the rational bases multiple rational bases i would say that on my count there may be as many as ten rational bases for this classification for allowing restaurant bars to continue to operate on the limited capacity and operating as restaurants and on the other hand telling bars freestanding bars t they could not engage in on site from a sales at all may i take a minute simply to go through those quickly for the court with yeah that would be helpful i guess if you could there i was thinking more of three maybe there are ten  the tracing to outbreaks and the white house warning but did those two possible justifications draw a distinction between bars standalone and restaurant bars in other words when they traced outbreaks was it troost with this distinction the fire marshal earning distinction in mind or is it much more the testimony that was received that described the difference don't risk a sprint the he implemented j p eighty nine j b two thousand and twenty mr fair cloth has made a great deal over the fact that at the judge feldman hearing a doctor be you said he wasn't sure whether the tracing data differentiated between bars and restaurants bars over the weekend we did a deep dive if you will into the data found out that it did differentiate and that in fact it continued to confirm the fact that the overwhelming number of outbreaks were traceable to freestanding bars but in any event you're one of the the the the distinction here is really between bars and restaurants because the open safely guidance that the governor incorporated by reference in executive order after executive order after executive order required restaurant bars so called to operate as restaurants not if you will as bars so again that's why all of the data all of the rational basis information that i was about to go ahead though i mean is the ten why it's relevant to the restaurant bar distinctions scuse me so just quickly i'm going to go through these and number one the primary purpose of individuals going to bars is to socialize while the primary purpose of dock to be used testimony at the in the nine hundred and ten record at page one thousand one hundred and twenty eight number two in contrast to bars patrons of restaurants and bars that serve food tend to sit at table in groups and do not move freely around the restaurant that's a quotation from judge summarises opinion at page twenty three it's supported by dr b you page one hundred and four of his testimony before judge summerhays it's also supported by a very of barr foundationally social setting were typically not only small groups convene but also where groups mix with other groups eard people linger in bars whereas in five where the california document speaks of the differential duration of time spent in bars for says restaurants also testified to by dr b you number four alcohol consumption reduces reading these quotations from the testimony you know order to save time i hope that's ok number five bars often have music or entertainment that causes people to raise their voices to be heard and to move group that is more likely to be asymptomatic thus increasing the likelihood that they could spread the disease both in the bar and when they leave that's judged summerhayes opinion page twenty three supported by testimony from dr b you and the governor twenty two young people who patronize bars don't just go to one bar they go bar hopping will go from one to the other interacting with different groups of people at different bars number eight governor edwards testimony yet and twenty one and this is the contract excuse me the contract tracing testimony he said we knew from contact tracing data that the biggest percentage of outbreaks were traced  to any particular non congregate venue were traced to borrowers and the biggest number of cases were traced to borrowers number nine white house guidance which judgments and you referred to a short while ago white house guidance repeatedly focused on the need to close bars or control the patronage of borrowers that's judge summerhayes opinion it's twenty three again testimony also from  and twenty west law three o five hundred and twelve those seven this is the point that restaurants serve an important role in the social fabric you know during a time book and damn it and it is more important to keep restaurants open than it keep bars open which is another rational basis for not allowing on side consumption in freestanding bars yet allowing restaurant bars to operate as restaurants as an adjunct of the main  restaurant the governor said you didn't shut down restaurants because there's a certain segment of our population that routinely derive a good portion of their nutrition from restaurants so for those reasons we didn't close restaurants but we did put a stop excuse me and we did put in order and to stop bars from functioning as far as within restaurants and then again excuse me i said ten reasons i'm going to two more make it all eleven and twelve number eleven just after the governor issued his bar closure order eighty nine j b e dr burke's and the white house report for the need to do with the governor of arizona did and should not closing or number twelve and i think this is a an important point the rationality of the distinction that the governor made has been borne out by the results  hundred and forty two they all show that after the governor entered eighty nine j d e there was a dramatic decline in the positivity rate in the number of cases being reported of particularly it showed a direct downturn among the eighteen to twenty nine year old age group so again i think that it's a big jacobson abnett versus rational basis test  conflict is no conflict number two i think that if the rational basis test is applied here is the end of the discussion now but having said all that they are returned briefly to or are there other questions the court would prefer me to answer there is no vagueness issue before us and what's the current status of the state court litigation relating to these orders the current status of the state court litigation  in which the legislative oras seek to mandamus the governor to issue a proclamation declaring an end to the entire public health emergency and the governor seeks a declar judicial district court in baton rouge has set a hearing on what i believe to be the various let's loosely call them cross actions putting at issue the continuing  there's been no litigation maneuver and all of the governor's orders expired as of a certain date disorder eighty nine dollars j b expired on september the th actually it's extensions expired on september the th to be precise at that point phase three came into play which was an order of general applicability reshuffling the entire deck of cards if you will in terms of  two which had existed previously and eighty nine j b the the argument there that mr fair cloth makes is essentially they were maine's some sort of difference between bars and restaurants and therefore is his challenge to a specific differentiation between bars and restaurants is not moved well that's that's just not logical the the current regime creates a very different differentiation between bars and restaurants he has never filed nor is it just record ever decided what amounts to a kind of an omnibus attack on any difference between was was filed and the circumstances that surrounded it on july th two thousand and twenty x months ago when it was issued are in effect have faded into history so the whatever the current distinction may be is founded upon an entirely different set of let's call it covert will lated circumstances and arguable rational bases than those that existed thirty four months ago when this controversy began oh i think any possibility of this court rendering of the creed of some kind that that has any any effect other than to take on the general proposition that the court is going to adjudicate as yet unclear on argued cases having to do with general differentiation between one class and the other i think this case i speculation that such an order would ever be entered into in the form of eighty nine j b e and more importantly entirely speculative that the conditions on the ground that create the controversy surrounding eighty dollars j b e would never be the same again so if you have somehow the the governor were to reenter that or it would be an entirely new case or controversy and not the one that's before the court today which is it's important that you do know this we're challenging the many we're not challenging that there are rationality other govan are restricting bars that's the object here or there and that's what this entire diversions been about we're challenging the means he chose to do it that is the crux of the equal protection argument and the means he chose here was to create a differentiation of two classes and he use nuance and they agreed to do it and he got caught you know you just can't escape the fact that the bar closure order says bars operated from serving drinks or food or premises bars so but unfortunately all bars are not prohibited from serving drinks or food on or process and in fact  survey and discovered that they go to put on no evidence whatsoever as to enforcement or whether bars were open or why he didn't define blowers within the order or who controls the the bars so this is their argument is below the legal fiction and the fiction is that he somehow altered the legal distinction between bars the legal distinction louisiana he altered it by incorporating a f sales guidance document that's the case and that's why the rationality test can't be applied are skewed to the theoretical rationality can apply he gets caught in this instance playing political expediency in this order he wanted to appear as though he was categorical closing bars because the white house was telling him to close bars but he wanted to give himself enough slack so you could let some bars be open and he used vagueness to do it and that's the case that is absolutely the case your are i can't emphasize enough how important is what mr weiss just said about they did a deep dive on saturday we had a trial and just film score on friday in the evidence was closed at about four o'clock and  thrill down into that distinction in the tracing data that doesn't exist he said exist it does just tell me questions interesting data talks of all bars and restaurants it does not own its face draw any distinction between restaurant bars and bar was there ever a discussion with you about whether or not those particular bars that are listed here on the tracing dana were bars that were scandal morris or inside a restaurant he said no and he was asked by his counsel and why was that particular distinction not important at least something you didn't believe was important is answer was well because in my opinion a bar's a bar if a bar is open and functioning is a bar whether it's inside a restaurant or it standing alone a business without a restaurant i think people are going to behave similarly so i never made the distinction i'm not ask but i can always come up with a question i guess are accepting a lot of that in terms of the order the order you're right it explicitly incorporates the pirate marshall classification so i guess i keep coming back to the question is just is there a rational basis to treat these hypothetical theoretical conceivable justifications for why what government did might may be have been rationally related to what governments and there are up to a rational basis and sort of a  shrug right i mean i know it you know it the american people know it there's nothing more deferential than rational basis the fundamental difference your honor is that here you have gone who said he didn't rely on those things he rejected