[00:00:03] Speaker 03: Thank you. [00:00:03] Speaker 03: May I reserve three minutes for rebuttal? [00:00:04] Speaker 05: Yes. [00:00:05] Speaker 03: May it please the court, Eric Hamilton, for the plaintiff states, defendant's federal contractor minimum wage imposes billions of dollars in new costs on the government's contracting partners, all on the assertion that nebulous morale-raising benefits will offset that substantial cost. [00:00:22] Speaker 03: The Procurement Act does not authorize the president to impose a nationwide federal contractor minimum wage. [00:00:28] Speaker 03: But even if it did, the defendant's rule violated the APA, the district court erred in failing to enter a preliminary injunction. [00:00:36] Speaker 03: There are a number of problems with the wage mandate. [00:00:39] Speaker 03: I want to start with an argument that would have been inconsistent with the now vacated Mays decision. [00:00:47] Speaker 03: That's the threshold issue of whether Section 101 expands Section 121's grant of presidential power. [00:00:55] Speaker 03: The answer is no. [00:00:57] Speaker 03: Section 101 is a purpose clause. [00:00:59] Speaker 03: It memorializes Congress's purpose in enacting the Procurement Act. [00:01:03] Speaker 03: Two circuits, the Sixth Circuit and Eleventh Circuit, have both accepted this argument in construing the Procurement Act, and recently the Southern District of Texas in entering a permanent injunction against the federal contractor minimum wage also accepted this argument. [00:01:21] Speaker 01: Mr. Hamilton, before you continue, and I do want to hear more about this argument, this was not raised below, as I understand it, and both of those decisions had already been issued when you were in the district court below. [00:01:34] Speaker 01: Aren't we constrained from hearing this new argument that was not raised below? [00:01:41] Speaker 03: No, Your Honor. [00:01:43] Speaker 03: A few points. [00:01:45] Speaker 03: One, this argument is antecedent to the arguments that we did make in the district court. [00:01:49] Speaker 03: And the district court appeared to recognize that, because there's even a parenthetical on page 11 of the excerpts of record, which is the district court's opinion, that flags this issue. [00:02:01] Speaker 05: And as the US Supreme... The issue about the purpose clause? [00:02:04] Speaker 03: Yes, yes, there's a parenthetical that describes Judge Grant's opinion from the 11th Circuit. [00:02:11] Speaker 03: Judge Grant has the lead opinion in the 11th Circuit case that adopts this argument. [00:02:16] Speaker 03: So that parenthetical recognizes that this issue is antecedent to the arguments we were making. [00:02:22] Speaker 03: And under the US Supreme Court's LeBron decision, which we discuss in our brief at page 16, [00:02:31] Speaker 03: The fact that that is enough to preserve the issue. [00:02:36] Speaker 05: You clearly argued that there wasn't statutory authority, right? [00:02:40] Speaker 05: Yes. [00:02:41] Speaker 05: So the question here is just how many arguments did you raise and did you raise this specific purpose? [00:02:47] Speaker 03: That's right. [00:02:48] Speaker 03: That's right. [00:02:49] Speaker 03: And even if the court did consider it to be a forfeited issue, that, of course, is a discretionary doctrine. [00:02:56] Speaker 03: And it would be appropriate to consider the issue here where the issue is briefed and the district court, I don't think, was prejudiced since it clearly had awareness of the issue. [00:03:06] Speaker 03: Even if there was a link between Section 101 and Section 121, the president's authority would still be limited to making improvements [00:03:17] Speaker 03: for the procurement system. [00:03:19] Speaker 03: Section 101 talks about the purpose is to provide the federal government with an economical and efficient system for contracting. [00:03:30] Speaker 03: And that would align the statute with its purpose, which came as a response to World War II duplication and inefficiency in contracting. [00:03:38] Speaker 03: But nothing out of the 1949 Procurement Act had the purpose of improving individual contractor obligations. [00:03:47] Speaker 05: Can I ask a question? [00:03:49] Speaker 05: The parties both, the plaintiffs, in fact, seem to concede that the Department of Labor found that the costs, that the benefits outweighed the costs. [00:04:03] Speaker 05: Is that your position? [00:04:03] Speaker 05: Because as I read it, I thought the labor order actually found the opposite, that the costs outweighed the benefits. [00:04:14] Speaker 03: From my understanding, the wage mandate rule is saying that the benefits are going to outweigh the costs. [00:04:20] Speaker 05: Is that economic benefits or those are other intangible benefits that are going to outweigh the cost? [00:04:27] Speaker 03: It's combined. [00:04:27] Speaker 03: So there are three pages in the wage mandate rule, pages 67 to 10. [00:04:33] Speaker 03: I'm sorry, they're at pages 67 to 12 to 15. [00:04:36] Speaker 03: And they go through various benefits. [00:04:39] Speaker 03: And the Pacific Legal Foundation brief really dissects everything that is cited in these three pages, but they cite studies. [00:04:46] Speaker 03: showing that morale is going to go up if people have additional wages, that turnover will go down, and they also discuss several benefits that have nothing to do with economy and efficiency, things like increased equity and reduced poverty and income inequality. [00:05:04] Speaker 03: Those are social policy goals. [00:05:06] Speaker 05: Okay, so I agree with that. [00:05:07] Speaker 05: My question is more specific, and maybe we're just looking at the question differently. [00:05:12] Speaker 05: As to actual costs, did the Department of Labor find that the costs to the government were going to increase or decrease based on this rule? [00:05:22] Speaker 03: I think it very strongly suggested that those costs would go up because the department talks about how there are going to be new costs imposed on the government's contracting partners and that it's quite likely that the government is going to end up absorbing a lot of those costs. [00:05:37] Speaker 05: So when you say that the Department of Labor found that the costs outweighed the benefit, the only way to achieve that result would be not by looking at the financial [00:05:47] Speaker 05: cost because it seems like the government's gonna have to pay more money and that's and they're saying that's okay because we're getting these other intangible benefits which outweigh that. [00:05:57] Speaker 03: Yes, yes, that's right. [00:05:58] Speaker 01: I think the government's position is that there are the- Well, can I, I'm sorry, but I thought the Department of Labor, so the justifications by the Department of Labor, increased productivity, lower turnover, those are also offsetting benefits that are quantifiable, I guess, in their view, right? [00:06:18] Speaker 01: So there are certain increased costs that I thought the Department of Labor said would increase in the short term. [00:06:24] Speaker 01: I think it said negligible. [00:06:25] Speaker 01: I forget, you can correct me. [00:06:27] Speaker 01: but it was offset by benefits or lowering costs from productivity, lower turnover, less absenteeism. [00:06:35] Speaker 01: Aren't we looking at economic versus economic? [00:06:39] Speaker 01: Or no? [00:06:40] Speaker 01: Did I misunderstand that? [00:06:41] Speaker 03: No, I agree. [00:06:42] Speaker 03: It is an economic analysis. [00:06:44] Speaker 03: I think in the end, the economy and efficiency analysis requires something like a cost-benefit analysis. [00:06:49] Speaker 03: And that's consistent with the DC Circuit's con decision, which looked at an order that was the opposite of this order. [00:06:57] Speaker 03: It was an order that had the effect of [00:06:59] Speaker 03: putting caps on wage and price increases from federal contractors. [00:07:04] Speaker 03: And the D.C. [00:07:05] Speaker 03: Circuit in the end said, on the whole, this is going to have the effect of holding down the federal government's costs. [00:07:11] Speaker 03: And the very end of Kahn's analysis in Roman II emphasizes that connection to holding down the costs and to judges [00:07:19] Speaker 03: filed concurring opinions, emphasizing that strong connection between the reduced expenses for the government and the order under consideration there. [00:07:30] Speaker 01: Can I ask you this? [00:07:31] Speaker 01: I was struggling with this. [00:07:33] Speaker 01: This is a nexus. [00:07:35] Speaker 01: So we're to look at the nexus between the order and the goals of economy and efficiency. [00:07:41] Speaker 01: But it almost seems to me as if you're arguing a policy disagreement. [00:07:46] Speaker 01: And the question I have is, how are we three judges equipped to decide whether you're right or the Department of Labor is right? [00:07:54] Speaker 01: Aren't we talking about a policy dispute as opposed to whether there's a sufficient nexus between the order and the goals? [00:08:01] Speaker 03: No, not at all, Your Honor. [00:08:04] Speaker 03: Really, it's the same analysis that I think this court does regularly when considering whether an agency has acted within some statutory grant of authority. [00:08:14] Speaker 03: The fact that section 121 delegates power to the president as opposed to an agency doesn't change that. [00:08:20] Speaker 03: And in the US Supreme Court's Chrysler Court against Brown decision, it talked about the standard. [00:08:25] Speaker 03: It said there has to be a nexus. [00:08:27] Speaker 03: And it said that the policy must be reasonably within the contemplation [00:08:31] Speaker 03: of the statute. [00:08:33] Speaker 03: And again, I think cases like Khan, Liberty Mutual, and the Fourth Circuit, courts of appeals have applied the standard and done that trade-off in cost benefit in previous Procurement Act cases. [00:08:48] Speaker 00: I guess I have a follow-on question to that. [00:08:51] Speaker 00: What are we supposed to make of [00:08:53] Speaker 00: the policy judgments that Congress has made in this space. [00:08:56] Speaker 00: We have the Services Contract Act that says for federal contracts, you've got to do the federal minimum wage. [00:09:02] Speaker 00: We have a couple of other specific statutes that deal with, you know, particular sectors of federal contracts that set wage standards. [00:09:11] Speaker 00: So clearly Congress has exercised its policy judgment in this space. [00:09:15] Speaker 00: What are we supposed to make of that in terms of assessing this executive order? [00:09:19] Speaker 03: Yes, Your Honor, those statutes are very significant because they show that Congress has already made a judgment on the precise policy question that the wage mandate addresses. [00:09:30] Speaker 03: And Congress's statutes, at a minimum, make it very implausible that Congress intended to create this open-ended authority in Section 121 [00:09:40] Speaker 03: It would allow the president to make his own different judgment on the exact same policy question. [00:09:46] Speaker 03: And this is an argument that Texas, in that Southern District of Texas case, accepted last year, noting that those three statutes speak comprehensively to this problem. [00:09:58] Speaker 01: Did those statutes reflect a desire by Congress to say no one else should step into this area and also regulate in this field? [00:10:08] Speaker 03: Well, they don't override what states are doing in that space, but I think it's quite implausible that Congress would decide the policy question, but then create this open-ended authority for the president to do something different, and that imposes a conflicting minimum wage on federal contractors. [00:10:30] Speaker 01: Why is it conflicting? [00:10:31] Speaker 01: I think the opposing argument is you can comply with both. [00:10:37] Speaker 01: If there's a prevailing local wage in one area that's higher, that would apply. [00:10:41] Speaker 01: If the president's order is the higher of the two in some other area, that would apply. [00:10:46] Speaker 01: So there's no direct conflict. [00:10:48] Speaker 01: But I guess you're basing, it's almost as if you're arguing some sort of field preemption type argument, but here, and I'm not, what case would you rely on in support of that type of context here? [00:11:03] Speaker 03: So I don't think the court has to think about it as a preemption case. [00:11:07] Speaker 03: But there is a previous case of the DC Circuit Chamber of Congress against Reich that struck down the Procurement Act ban on hiring permanent replacements during union strike that found a preemption issue there. [00:11:22] Speaker 03: But I think really it's just a matter of statutory interpretation. [00:11:26] Speaker 03: The specific governs the general. [00:11:28] Speaker 03: And there is a conflict because minimum, I mean, that's a term of limit, right? [00:11:34] Speaker 03: And this is setting the lower limitation. [00:11:38] Speaker 03: Congress did so in saying that prevailing wages control. [00:11:41] Speaker 03: But then the Procurement Act wage mandate comes in and says, well, there's a different nationwide limit that is now $17.20. [00:11:51] Speaker 05: And that's because it's increased over the last two years. [00:11:54] Speaker 03: Yes, your honor. [00:11:54] Speaker 03: Yes. [00:11:55] Speaker 05: Is there any state that has a higher minimum wage? [00:11:59] Speaker 03: No, your honor. [00:11:59] Speaker 03: Every state has a lower minimum wage than the wage mandate. [00:12:03] Speaker 00: I want to come back to the, um, that we're doing a statutory construction here. [00:12:08] Speaker 00: I think that's ultimately what we're doing. [00:12:11] Speaker 00: If we were to conclude that the statement of purpose is not an authoritative grant of power. [00:12:17] Speaker 00: Would it be appropriate for us to analyze the Procurement Act to see if there might be some other grant of power that hasn't been raised in the briefing? [00:12:25] Speaker 03: Not absent the defendant citing some other authority, which they have not. [00:12:31] Speaker 03: And I think that just reflects the fact that the Procurement Act really doesn't have anything to do with what wages federal contractors have been paid. [00:12:39] Speaker 00: So why is that? [00:12:41] Speaker 00: I'm just focused on the interpretive exercise. [00:12:43] Speaker 00: Why is that so? [00:12:45] Speaker 00: We're on de novo review. [00:12:46] Speaker 00: We're a court of law. [00:12:49] Speaker 00: Our job is to get the law right. [00:12:50] Speaker 00: So if we think that the parties have identified the wrong source of authority, why is it improper for us to see if there's some other grant of authority? [00:12:59] Speaker 03: Well, I just appreciate, I guess, the opportunity to provide supplemental briefing on any other possibly applicable authorities. [00:13:06] Speaker 03: I'm not aware of one, and I don't believe defendants have cited one. [00:13:09] Speaker 04: Have any other cases, there's been a few cases here, have any other cases cited to other provisions? [00:13:16] Speaker 03: I'm not aware of that. [00:13:18] Speaker 03: I'm not aware of that, right? [00:13:20] Speaker 03: I mean, the 11th and Sixth Circuits both looked at this threshold issue of whether 101 expands 121, and they considered some other issues in the alternative, but I don't recall them citing something else in the Procurement Act as a hook. [00:13:38] Speaker 01: I actually had that question. [00:13:40] Speaker 01: So in Georgia, the 11th Circuit case, they talk about the statutory structure, [00:13:46] Speaker 01: So you have 101, the purpose statement. [00:13:49] Speaker 01: 121 is the administration where it gives the president the authority to set policy and direction. [00:13:57] Speaker 01: Then Georgia talked about Title 41, which is the meat and bones of the Procurement Act. [00:14:03] Speaker 01: And one of those provisions is the ability, it's, I guess, Section 3101, that agencies have the authority to make purchases and contracts for property and services. [00:14:17] Speaker 01: I guess what I'm confused as, why isn't that the specific authority under which the president can direct policy? [00:14:25] Speaker 01: So if we're looking for a specific statutory provision that allows the president to direct, to make a direction, why isn't that it, the government's authority to contract with others and procure goods and services? [00:14:39] Speaker 03: I would still go back to the Procurement Act's overall purpose, which was to improve the efficiency in the organization of the federal government and how it engaged in contracting to eliminate duplication and create the centralized general services agency to be the hub for all of the government's contracting operations. [00:14:59] Speaker 03: I mean, I think if Congress had intended to govern minimum wages for individual contractors, it probably would have said something in the three statutes that actually talk about that issue and given the president an authority to supplement it there as opposed to adding that authority. [00:15:22] Speaker 01: Just a quick follow-up. [00:15:24] Speaker 01: Your argument is that there needs to be a specific statutory provision that allows the president to set wage orders within these contracts? [00:15:33] Speaker 01: Is that the argument you're making? [00:15:35] Speaker 03: Yeah, I'll give an example of a couple orders that are lawful under Section 121. [00:15:40] Speaker 03: One would be EO 11-035, which set policies for how the federal government assigns spaces to agencies. [00:15:49] Speaker 03: One of the policies in that EO is don't rent out private space if you have [00:15:55] Speaker 03: public government space available. [00:15:58] Speaker 03: And the hook for that is 40 USC 584, which is part of the Procurement Act, and actually conditions the GSA's assignment of space on a presidential Section 121 policy or directive. [00:16:11] Speaker 03: Another example is EO. [00:16:13] Speaker 01: Can I just pause you for a second? [00:16:14] Speaker 01: Because Chrysler Corp. [00:16:15] Speaker 01: tells us that you don't need a specific provision in order to exercise discretion in that area, or for the president to. [00:16:25] Speaker 01: So why isn't it enough that there's specific authority by an agency to contract with others and procure, and there's also specific authority that Congress has given the president to set directives to the agencies and the branches of government, why does there need to be something more specific that says the president must also be able to set wages within these contracts? [00:16:50] Speaker 03: I think Chrysler Corp actually takes a narrower look than that because that footnote 34 in Chrysler Corp, it copies and pastes section 101's purpose clause and then because the parties were litigating about an employment discrimination order, the Supreme Court says we don't see the term employment discrimination in here and it strongly suggests that the Procurement Act would not have authorized the employment discrimination [00:17:14] Speaker 03: that was at issue in that case. [00:17:17] Speaker 03: In addition, the wage mandate violates the major questions doctrine, and that's because the imposition of a federal contractor minimum wage is a power of vast economic and political significance. [00:17:29] Speaker 03: That's the term that the U.S. [00:17:31] Speaker 03: Supreme Court standard, they have applied. [00:17:33] Speaker 05: Can I ask you, though, on the major questions doctrine? [00:17:36] Speaker 05: Sending aside that and the argument you're just making, what do we do with the two prior orders? [00:17:41] Speaker 05: I mean, we've got President Trump and President Obama have both issued executive orders in a similar way under this authority. [00:17:51] Speaker 05: Doesn't that put this in a different camp than the West Virginia case where it was kind of out of the gate, no one had ever thought of it before? [00:17:58] Speaker 03: I know, Your Honor, the wage mandate order that President Biden has put in place is very different from either of those two previous wage mandates. [00:18:11] Speaker 03: The Obama order cost less than one third as much as OK, but that's the cost. [00:18:17] Speaker 05: But I'm not necessarily disagreeing with you on the cost. [00:18:22] Speaker 05: I'm just saying it seems like this is different because [00:18:26] Speaker 05: there has been some activity in this area. [00:18:29] Speaker 05: Now, whether they were valid or not is a separate question, because they were never challenged. [00:18:33] Speaker 05: But I just wonder whether the major questions doctrine applies in those circumstances. [00:18:38] Speaker 03: I still think it does. [00:18:39] Speaker 03: I mean, you look at the Procurement Act, it's a 75-year-old statute, and yet there has only been some sort of federal contractor minimum wage put in place by the president for the last 10 years. [00:18:49] Speaker 03: And as Your Honor indicated, there was no litigation over that, even though [00:18:53] Speaker 03: So in comments to that Obama administration wage mandate rule, commentators did flag the legality problems with that rule. [00:19:04] Speaker 03: But this is the exercise of the power of vast economic and political significance. [00:19:09] Speaker 05: The wage mandate covers... How do we determine that? [00:19:14] Speaker 05: And we're taking your... We'll give you some time for rebuttal. [00:19:18] Speaker 05: This seems to be less than both, clearly it's less than the Clean Power Act, as far as economic significance, you'd agree with that. [00:19:26] Speaker 05: But what about the, is it the Association is real? [00:19:32] Speaker 05: uh... alabama realtors alabama realtors what was the economic impact there wasn't fifty billion was that over a ten-year period or was that fifty billion that was just that year right i don't know the exact number but it certainly was some sort of a limited period time because of the cdc eviction moratorium but i mean one point seven billion sounds like a lot of money but in the grand scheme of things it's not that much money i mean are we are we starting to lower the threshold pretty significantly [00:19:59] Speaker 05: How do we evaluate that is what I'm saying. [00:20:01] Speaker 05: We've got tons of regulations that have 1.7 billion dollars of impact in a given year. [00:20:06] Speaker 03: Sure. [00:20:06] Speaker 03: So I don't think so, because one, I don't think there is any minimum price tag for the major questions doctrine to apply. [00:20:13] Speaker 03: In the OSHA case, for example, which was the OSHA nationwide vaccine mandate, I don't think the costs would have been especially significant, and the US Supreme Court didn't talk about costs there. [00:20:25] Speaker 03: But the costs are more than $1.7 billion per year, because there are spillover costs, which are going to be significant. [00:20:35] Speaker 03: The wage mandate, it does only apply to the hours that a contractor is spending on the contract, but the wage mandate rule acknowledges that it is very unlikely that contractors are going to be able to pay one employee one wage and then a lower wage to another employee doing the same thing who isn't working on the wage mandate. [00:20:56] Speaker 03: are working on the covered contract. [00:20:59] Speaker 03: So the expenses are significant and it is also politically significant. [00:21:02] Speaker 03: The wage mandate followed by just one month Congress's rejection of a $15 minimum wage. [00:21:10] Speaker 03: The May's decision concluded that the major questions doctrine did not apply to the president. [00:21:17] Speaker 03: We disagree with that. [00:21:18] Speaker 03: The major questions doctrine is all about vindicating Congress's legislative power and the executive is as able to go beyond the limits that Congress has imposed as any agency in the branch. [00:21:34] Speaker 01: What do you make of the arguments from Franklin and Dalton that he or she is not an agency? [00:21:42] Speaker 01: That was one of the justifications that the Mays panel made for why it doesn't apply to a president's actions. [00:21:51] Speaker 03: Right, but those are both cases dealing with limitations that Congress put on the president's authority, whereas major questions cases deal with grants of authority that Congress has arguably made to the executive. [00:22:06] Speaker 01: Can I ask you a question about the APA? [00:22:08] Speaker 01: Yes. [00:22:11] Speaker 01: So there's an argument of whether the APA applies to an agency's implementation of a president's executive order. [00:22:20] Speaker 01: And I take it your argument is it should, at least to some respect, or completely. [00:22:28] Speaker 01: Ken, could we review something that the president has directed, the $15 minimum wage itself? [00:22:36] Speaker 01: Is that reviewable under the APA in your view? [00:22:39] Speaker 03: I think it's possibly a different case if the president is just directing a minimum wage period, but that isn't what happened here because the president [00:22:49] Speaker 03: said $15, but then said, Department of Labor, you figure out who this applies to, and please engage in rulemaking. [00:22:57] Speaker 03: And so our point on the APA is the president told the department to engage in rulemaking, and there just isn't anything in the APA that carves out policymaking by the president from a final agency action of the Department of Labor. [00:23:13] Speaker 01: And so when there's a play in the joints and there's some discretion that the agency is exercising, that is a reviewable thing under the APA. [00:23:20] Speaker 01: It is. [00:23:21] Speaker 05: It is. [00:23:23] Speaker 05: OK. [00:23:23] Speaker 05: Thanks, counsel. [00:23:24] Speaker 05: Thank you. [00:23:33] Speaker 02: Good morning, Your Honor. [00:23:33] Speaker 02: May it please the court, Daniel Winnick for the federal government. [00:23:36] Speaker 02: I think there's three basic points I want to make in response to my friend's presentation. [00:23:42] Speaker 02: First, as to the sort of basic question of statutory interpretation. [00:23:46] Speaker 02: Second, as to the nexus, the sort of cost benefit question. [00:23:49] Speaker 02: And third, as to the relevance of the other statutes. [00:23:52] Speaker 02: Let me start with the sort of statutory issue. [00:23:55] Speaker 02: This is really a key point. [00:23:57] Speaker 02: So the authority here, the affirmative grant of power to the president, is section 121A, which says, quote, [00:24:04] Speaker 02: the president may prescribe policies and directives that the president considers necessary to carry out. [00:24:09] Speaker 02: this subtitle, this subtitle being subtitle one of title 40 and parts of subtitle one of title 41, basically the government's general procurement and contracting authorities. [00:24:20] Speaker 02: That is the affirmative grant of power. [00:24:22] Speaker 02: We are not arguing, we have never argued that section 101 expands that power. [00:24:26] Speaker 02: Section 101 limits that power. [00:24:28] Speaker 00: That's what people are... Okay, so that makes sense to me, but you have to have something to go along with the grant of presidential role, I guess, right? [00:24:36] Speaker 00: Role to do what? [00:24:36] Speaker 00: So you've got... [00:24:38] Speaker 00: all the provisions within this sub-chapter that he can regulate consistent with. [00:24:44] Speaker 02: So yes, the key word there, Your Honor, is consistent with. [00:24:47] Speaker 02: So what Judge Grant said in her opinion in the Eleventh Circuit, which was not an opinion of the court, just a single judge opinion, is that the president's power is limited to carrying out specific provisions [00:24:58] Speaker 02: of the Procurement Act. [00:24:59] Speaker 02: That is at odds with the text of the statute, because if that's all it meant, Congress would not have gone on to say, and the president's directives must be consistent with this subtitle. [00:25:10] Speaker 00: I think that's right. [00:25:11] Speaker 00: I think that your reasoning is probably correct. [00:25:14] Speaker 00: The thing that I'm struggling with is, what is the provision that you're relying on to say that this wage executive order is consistent with the act? [00:25:24] Speaker 00: Because it can't just be the provision that says you can do anything consistent with the act. [00:25:28] Speaker 00: Like, what is in the act that that executive order is consistent with? [00:25:33] Speaker 02: I mean, I think there's basically two standards for whether a presidential directive is consistent with the subtitle. [00:25:40] Speaker 02: One is that it must be consistent with the statement of purposes in Section 101. [00:25:45] Speaker 02: So that's the sense in which Section 101 limits the power set forth [00:25:48] Speaker 02: in section 1.1. [00:25:49] Speaker 05: Because it has to be economical. [00:25:51] Speaker 05: It has to promote an economical and efficient system. [00:25:55] Speaker 02: Correct. [00:25:56] Speaker 02: And if it doesn't do that, then it's not consistent with this subtitle. [00:25:59] Speaker 02: The second is that it can't violate any of the provisions of the Procurement Act. [00:26:02] Speaker 02: But if the president considers it necessary to carry out contracting, if he reasonably thinks that it advances the statutory purposes, and if it's not inconsistent with- Yeah, but what statutory purposes? [00:26:16] Speaker 05: I mean, I think we're coming back to the same thing. [00:26:19] Speaker 05: I think you're giving an incredibly broad interpretation of the statute. [00:26:24] Speaker 05: Anything that the president thinks is necessary, he can do. [00:26:27] Speaker 02: That is a broad interpretation of the statute. [00:26:29] Speaker 02: I don't think we think it's anything the president thinks is necessary. [00:26:31] Speaker 02: It has to be consistent with Section 101 and not inconsistent with the other provisions of the statute. [00:26:36] Speaker 02: But it is broad. [00:26:37] Speaker 02: Presidents have always understood it as broad. [00:26:38] Speaker 02: The courts have always understood it as broad. [00:26:40] Speaker 02: The only time courts have imposed this sort of narrow construction of the act that plaintiffs are arguing for the first time on appeal is in [00:26:49] Speaker 02: presidential opinions of a single circuit, the sixth circuit, and a single judge. [00:26:53] Speaker 02: And the 11th circuit. [00:26:54] Speaker 02: Yeah, not a precedent of the 11th circuit. [00:26:56] Speaker 02: It's a single judge opinion not joined by any other member of that panel. [00:27:00] Speaker 05: Well, yeah, but the 11th circuit, even the majority opinion still was, I read it as still to be pretty consistent with the sixth circuit opinion. [00:27:11] Speaker 05: But going back to the other cases that you say are so broad, Chao in 2003 and Friedman in 1981 from the Fourth Circuit, they still said it had to be reasonably related and it focused in the Fourth Circuit on the cost to the federal government. [00:27:31] Speaker 02: So in addition to Chao and Kahn, the unbanked decision of the D.C. [00:27:35] Speaker 02: Circuit and Mississippi Power and Light from the Fifth Circuit and Contractors Association of the Third Circuit. [00:27:40] Speaker 02: I think that's sort of the canon of cases reading it broadly, including before Congress recodified it and presumably ratified those decisions. [00:27:48] Speaker 02: But to take Liberty Mutual specifically, Liberty Mutual was an as applied challenge to the application of the non-discrimination executive order to a particular contractor who had a highly attenuated relationship with federal contracting. [00:28:02] Speaker 02: It was providing workers comp insurance on a sort of undifferentiated basis to both federal contractors and others. [00:28:11] Speaker 02: All the Fourth Circuit said in that case is in that specific as applied instance, we don't think there's a nexus. [00:28:16] Speaker 02: That decision does not create. [00:28:18] Speaker 05: Yeah, but they still focused as did the DC Circuit on the sufficient close nexus to the government cost. [00:28:26] Speaker 05: And I think that's my concern here is that when you went into the cost benefit analysis, you threw out a whole bunch of benefits [00:28:35] Speaker 05: that might—I mean, they might—they could conceivably be benefits, depending on your policy views, but that doesn't seem to be what the statute governs. [00:28:47] Speaker 05: The statute governs—the whole point of the statute is to bring in government cost. [00:28:52] Speaker 05: Do you agree that the Department of Labor found that this will increase the cost to the government financially? [00:28:59] Speaker 02: The answer to that is no, but let me step back for a second. [00:29:02] Speaker 02: So what the directive has to do, the president has to reasonably consider it necessary to promote economy and efficiency in federal contracting. [00:29:10] Speaker 02: That does not mean lowering the federal government's cost. [00:29:13] Speaker 02: It doesn't have to be. [00:29:13] Speaker 05: That's what all the other courts said. [00:29:15] Speaker 02: I don't think that's right, Your Honor. [00:29:16] Speaker 02: I think Conn is a great example of that. [00:29:17] Speaker 02: But let me just sort of step back and talk about what it is that this executive order is doing. [00:29:23] Speaker 02: So suppose, just by analogy, suppose you are hiring a contractor to put a new roof on your house. [00:29:28] Speaker 02: You can pay the contractor $10,000 to do that job with employees making the prevailing wage, which is low, or you can pay that contractor a few hundred dollars more to do it with employees who are being well paid in your view. [00:29:43] Speaker 02: sensible decision, one that promotes economy and efficiency for you to pay more. [00:29:47] Speaker 02: No, that's just not true. [00:29:49] Speaker 05: That's not accurate. [00:29:51] Speaker 05: That is not economically, that is a policy judgment that you're getting outside of that. [00:29:56] Speaker 05: That is not promoting economy and efficiency. [00:30:01] Speaker 02: With respect to your honor, I disagree. [00:30:02] Speaker 02: The reason you would even just sort of as a normal person. [00:30:04] Speaker 05: I mean, your argument perhaps could be that because you're going to pay you more, you can get the job done faster. [00:30:12] Speaker 05: That makes sense to me, but the idea that, oh, I just want to pay more money because I want them to treat their employees better, that has nothing to do with economic and efficient systems. [00:30:22] Speaker 02: Your Honor, it's not just for the benefit of treating their employees better, and that's not what the President said and it's not what the Department of Labor said. [00:30:26] Speaker 02: The rationale is that workers who are paid more do higher quality work. [00:30:31] Speaker 02: do higher quality work that benefits the government because the job is being done better. [00:30:35] Speaker 02: If it's your roof, maybe it needs replacement less soon. [00:30:37] Speaker 02: Maybe you have to do fewer repairs on it in the interim. [00:30:40] Speaker 02: It benefits you over the long run. [00:30:41] Speaker 05: That's not what your initial argument was. [00:30:43] Speaker 05: I'm following you a little bit better now, but you sort of said, oh, it's eminently reasonable to, I mean, but setting that aside, okay, so we've got the threshold question of whether [00:30:55] Speaker 05: I don't see the other cases as going beyond looking at the cost to the federal government. [00:31:02] Speaker 05: You think Conn says that? [00:31:04] Speaker 02: Your Honor, I think what they look at is the value to the federal government, the value to the federal government. [00:31:10] Speaker 02: That is measured in all sorts of things that the federal government considers in contracting, including the quality of what's getting. [00:31:17] Speaker 02: We're all sort of familiar with the idea, whether it's a roof or something else, you pay a little bit more to get a better thing that is a better value to you, is a more economical decision. [00:31:25] Speaker 05: And Department of Labor actually said, I didn't read the Department of Labor to make the argument you're making now. [00:31:30] Speaker 02: So let me speak to what the Department of Labor said, but if I could make quickly a point before that. [00:31:34] Speaker 02: The Department of Labor is not the one that decided $15 minimum wage. [00:31:38] Speaker 02: That's the president's decision. [00:31:39] Speaker 02: All the Department of Labor did was implement that. [00:31:42] Speaker 02: Now, there are some things in the rule that sort of explain why the president's judgment was reasonable, but it is the president who decided that a $15 minimum wage for people working for the hours people spend on federal contracts is in the federal government's interest. [00:31:56] Speaker 02: That is the judgment. [00:31:57] Speaker 02: As to what the Department of Labor expected, they expected that the benefits to contractors of this requirement would be [00:32:06] Speaker 02: the cost to contractors of the requirement would be offset by the benefits like improved productivity and lower turnover. [00:32:11] Speaker 02: That's at page 67, 152 of the rule, so they didn't actually expect that cost to contractors would increase on net. [00:32:20] Speaker 02: They then said at pages 67, 206 to 207 of the rule that if contractors experienced any net increase in costs, [00:32:28] Speaker 02: And if they passed it through to the government, both of which are contingencies, then they expected any resulting increase in the government's contracting costs to be, quote, negligible and outweighed by the benefits to the government. [00:32:40] Speaker 02: So they said a lot of things, but they didn't expect there to be a net increase in costs for contractors because they thought contractors would benefit. [00:32:46] Speaker 02: And even if there was a net increase in costs for contractors, and even if contractors passed it through, they thought it would be a negligible increase in costs to the government [00:32:54] Speaker 02: and they thought that the government would benefit on net because it would get a higher value. [00:32:59] Speaker 05: I don't see that second part, that they would get a higher value. [00:33:03] Speaker 05: The benefit that's being considered is not that the product is going to be better. [00:33:08] Speaker 05: And point to me something where the Department of Labor said that. [00:33:11] Speaker 05: What the Department of Labor said was, we value equality. [00:33:16] Speaker 05: We value treating everybody with respect. [00:33:19] Speaker 05: I don't think they tied it to, we're going to get a better product. [00:33:22] Speaker 02: With respect, Your Honor, I think that's- Show me where they said it. [00:33:25] Speaker 05: Quote it. [00:33:25] Speaker 02: The relevant parts of the rule are 67 to it. [00:33:28] Speaker 05: Quote it to me. [00:33:30] Speaker 02: For example, Your Honor, the part of the rule where they're talking about the social science showing what happened at SFO, where there was a local wage ordinance like this one, where there were shorter security lines and higher customer satisfaction. [00:33:44] Speaker 02: There's a lot of things like that in the rule. [00:33:46] Speaker 02: What the rule is talking about at 152, 206 to 207, and 212 to 214, [00:33:52] Speaker 02: It's that when workers are paid better, they have higher morale, they work with better productivity, they perform better services for the government, and in the case of the summer contract covered by this, for members of the public. [00:34:04] Speaker 02: Again, that is not the judgment that this Court is reviewing, that the Department of Labor didn't decide to have a $15 minimum wage for federal contractors. [00:34:14] Speaker 02: The President did, but the Department of Labor explained that that was a reasonable judgment by the President, and it was on the basis [00:34:21] Speaker 02: of the fact that when workers are paid better, they're going to perform better. [00:34:24] Speaker 02: That's why the president thought it was in the government's interest. [00:34:26] Speaker 00: Can we go back to the interpretive question for a minute? [00:34:28] Speaker 02: Yes. [00:34:29] Speaker 00: If 101 is not an operative grant of power, where does that leave you? [00:34:36] Speaker 02: The argument we're making is that 101 is not an operative grant of power. [00:34:39] Speaker 02: The operative grant of power is 121A. [00:34:40] Speaker 02: 101 is. [00:34:42] Speaker 00: OK, so hold on. [00:34:43] Speaker 00: Yeah. [00:34:44] Speaker 00: 121 says that the president may prescribe policies and directives that the president considers necessary to carry out this subtitle and that are also consistent with this subtitle. [00:34:54] Speaker 00: Yes. [00:34:54] Speaker 00: So if 101 isn't the sort of meaty provision, what provision do you have that this executive order is carrying out? [00:35:04] Speaker 02: It is carrying out. [00:35:06] Speaker 02: We don't think it is carrying out any specific provision of the Procurement Act. [00:35:11] Speaker 02: We don't think it is necessary to carry out a specific provision of the Procurement Act. [00:35:14] Speaker 02: If that was all the president could do, Congress wouldn't have gone on to include the consistent with language. [00:35:19] Speaker 00: I guess I don't understand that. [00:35:21] Speaker 00: I mean, we're a government of enumerated powers. [00:35:23] Speaker 00: So you're telling me that there doesn't have to be any sort of enumeration of power under this act that the president's executive order is necessary to carry out. [00:35:36] Speaker 00: I don't even know. [00:35:37] Speaker 00: I don't even understand that argument. [00:35:39] Speaker 00: What is it connected to? [00:35:40] Speaker 02: It is necessary, in his view, to carry out government contracting writ broad. [00:35:45] Speaker 02: That is how courts have always understood it. [00:35:46] Speaker 00: OK, so there's got to be a provision. [00:35:47] Speaker 00: There's got to be a provision that says that that's a scope of function under this act. [00:35:55] Speaker 00: And so which provision is it that you're relying on? [00:35:58] Speaker 02: The provision we're relying on is 121A. [00:36:00] Speaker 02: That's how every court until the Sixth Circuit and one judge. [00:36:03] Speaker 00: That's just not true, counsel. [00:36:04] Speaker 00: I just want to make sure. [00:36:06] Speaker 00: And this is consistent with the way I read the briefing, is that the only provisions that you're citing is 101 and 121, and there is no other provision that you think is necessary to establish the president's authority in this space. [00:36:19] Speaker 02: We're not suggesting that this order carries out a specific provision of the Procurement Act. [00:36:23] Speaker 02: We're suggesting that consistent with the long history, it is necessary in the president's view to [00:36:29] Speaker 02: carry out government contracting in an economical and efficient way. [00:36:33] Speaker 02: And I would note just sort of as a gloss on the statute here, the president has inherent power to manage the operations of the executive branch. [00:36:41] Speaker 02: So what Congress is doing here is not delegating legislative power. [00:36:46] Speaker 02: It's not saying, you know, go make regulations and we are delegating people. [00:36:49] Speaker 00: I guess that argument then would mean that you wouldn't even need the Procurement Act at all and the president could just do this. [00:36:54] Speaker 02: We are not asserting that this is justified on the basis of the president's inherent power. [00:36:58] Speaker 02: I'm just arguing that in terms of the lens through which you view the statute, it is relevant here that Congress is operating in a sphere where the president has inherent power. [00:37:07] Speaker 00: I guess I want you to be specific. [00:37:08] Speaker 00: Do you think that the president needs the authority granted, whatever it is, under the Procurement Act to do what he did or not? [00:37:16] Speaker 02: I don't have a position on that, Your Honor. [00:37:17] Speaker 02: I'm sorry. [00:37:18] Speaker 02: OK. [00:37:18] Speaker 02: The executive order asserts the Procurement Act [00:37:23] Speaker 02: That's the basis on which we're asking the court to hold that the order was within the president's back. [00:37:30] Speaker 00: So to ask the question that I asked your friend across the aisle, again, if we conclude that 101 does not describe the scope of authority, and we conclude that 121 likewise does not describe the scope of authority, and that there needs to be some sort of substantive ground, you haven't cited any others. [00:37:47] Speaker 00: Do we have the authority to look all through the Procurement Act and find something that might work? [00:37:53] Speaker 02: I think you do have that authority that we're not asking the court to uphold the order on that ground. [00:37:57] Speaker 02: The argument we're making, which is, again, consistent with every decision addressing this except for the presidential decisions of the Sixth Circuit and one judge on the Eleventh Circuit, is that the president has power to issue directives he considers necessary to carry out government contracting in an economical and efficient way. [00:38:11] Speaker 01: So similar to my question to your colleague on the other side, I thought a potential answer might be that if you look at Title 41 and you see that there's the specific provision for contracting and there's another specific provision under 3306 that agencies that procure can include restrictive provisions. [00:38:33] Speaker 01: So these are general clauses, right? [00:38:35] Speaker 01: They're not specific to wage changes. [00:38:40] Speaker 01: But why isn't that a specific grant of authority that the president under 121 can then direct policy on so long as it's not inconsistent with the purposes of the act? [00:38:51] Speaker 02: Yeah, I think it could be, Your Honor. [00:38:52] Speaker 02: I think that provision talks about how agencies go about contracting. [00:38:55] Speaker 02: And so our argument is that the president is directing agencies in the exercise of their contracting functions. [00:39:01] Speaker 02: So I think you could look at it that way. [00:39:02] Speaker 00: But you haven't argued that at any stage of this case. [00:39:06] Speaker 02: We haven't argued that. [00:39:06] Speaker 02: I frankly don't think that it's fundamentally different from what we are arguing. [00:39:09] Speaker 00: I mean, I don't disagree with Judge Sanchez. [00:39:12] Speaker 00: That's an interesting provision to me. [00:39:14] Speaker 00: So that's my question. [00:39:15] Speaker 00: What do I do with that? [00:39:17] Speaker 00: There's a provision in there that might be a closer call, and you haven't relied on it. [00:39:21] Speaker 00: So should we? [00:39:23] Speaker 02: I think it's certainly in the court's discretion to do that again. [00:39:26] Speaker 02: I don't think that is fundamentally different from the point we are making. [00:39:29] Speaker 01: I'm sorry, but part of the problem is, and this was what I asked Mr. Hamilton, was this was never properly briefed in the district court below. [00:39:39] Speaker 01: So we've never really gotten a full, and in the middle of it, Mays versus Biden came out, and now that's since been vacated. [00:39:47] Speaker 01: So there are different circumstances that have perhaps not allowed the parties, or we've not gotten a full airing from the parties on the potential nooks and crannies of this argument about whether the president is authorized to do this in the Procurement Act. [00:40:09] Speaker 01: Would you agree or no? [00:40:11] Speaker 01: I mean, I think neither side has really, really briefed up this issue very well. [00:40:16] Speaker 02: So I'd certainly agree that because this was not raised in the district court by plaintiffs, the district court didn't address it in detail. [00:40:22] Speaker 02: We think that's a reason this court shouldn't consider it and should hold the order valid. [00:40:25] Speaker 02: But if the court wants further briefing on this, we're, of course, happy to provide that. [00:40:30] Speaker 05: Can I ask about the current status of the rule? [00:40:34] Speaker 05: So it's been enjoined in the Fifth Circuit only as applicable to three states, correct? [00:40:40] Speaker 05: Yes, the district court in Texas has enjoined it as enforced to three states. [00:40:43] Speaker 05: Didn't the Fifth Circuit uphold an interim? [00:40:48] Speaker 05: or it denied a request to vacate the injunction pending appeal? [00:40:53] Speaker 02: No, we didn't make such a request. [00:40:54] Speaker 02: We just appealed the injunction. [00:40:55] Speaker 05: Oh, so it's just the district court injunction at this point. [00:40:57] Speaker 05: Yes. [00:40:57] Speaker 05: And the 10th Circuit, they did issue an injunction pending appeal, correct? [00:41:02] Speaker 05: But that was a limited nature, only addressing the... Seasonal recreational providers. [00:41:09] Speaker 02: Yeah, the seasonal workers. [00:41:09] Speaker 02: Yes, exactly. [00:41:10] Speaker 05: So right now, you're not enforcing this as to seasonal workers? [00:41:14] Speaker 05: as to seasonal recreational providers on federal lands. [00:41:17] Speaker 05: OK. [00:41:17] Speaker 05: But you are enforcing it in the other 47 states other than the three states from the district court. [00:41:27] Speaker 02: Yes. [00:41:27] Speaker 02: And let me clarify. [00:41:28] Speaker 02: That injunction by the Texas District Court is not don't enforce it as to anybody within these three states. [00:41:33] Speaker 02: It's don't enforce it against these three states in particular. [00:41:36] Speaker 02: So the requirement is enforced as to companies in Texas, Mississippi, and Louisiana. [00:41:41] Speaker 02: I see. [00:41:42] Speaker 02: OK. [00:41:43] Speaker 01: Can I ask you about the APA claim? [00:41:46] Speaker 01: Yes. [00:41:47] Speaker 01: Is it your view that whatever the agency has implemented pursuant to the executive order is not reviewable under the APA? [00:41:55] Speaker 01: Or do you agree with counsel that if there are discretionary things that the agency undertakes, that that would be reviewable? [00:42:03] Speaker 02: So basically the latter. [00:42:04] Speaker 02: And our key point about the APA arguments they're making is most of what they're saying were not actually choices left open to the agency. [00:42:13] Speaker 02: So it wasn't left open to the agency to decide whether there should be a $15 minimum wage for federal contractors. [00:42:19] Speaker 02: The implementation date wasn't open to the agency, et cetera. [00:42:22] Speaker 05: We agree the agency had- Why was the implementation date not open? [00:42:25] Speaker 02: The executive order says effective as of January 30th, 2022. [00:42:30] Speaker 05: So they had to get this done before then? [00:42:33] Speaker 02: Yes, and it specifies a rulemaking deadline for them. [00:42:36] Speaker 02: We agree the agency had power to create exclusions. [00:42:39] Speaker 02: The only argument [00:42:40] Speaker 02: The only basis on which they've challenged the agency's exercise of that power is that the agency didn't create an exclusion from states, which is an argument nobody ever made to the agency. [00:42:49] Speaker 02: And so on that basis alone, that argument should be rejected. [00:42:52] Speaker 02: But yes, we don't dispute that this rule is final agency action, that it's reviewable under the APA, to the extent that the agency is making its own decisions. [00:43:01] Speaker 02: But overwhelmingly, what the agency was doing here was implementing decisions the president. [00:43:05] Speaker 05: But that's not what Franklin said. [00:43:07] Speaker 05: So you recognize you're asking for an extension of Franklin, right? [00:43:11] Speaker 05: I mean, Franklin said the president is not an agency, but they're not suing the president here. [00:43:19] Speaker 05: So you're asking for an extension to say, because the president is not an agency, [00:43:24] Speaker 05: any mandatory actions by an agency therefore also can't fall within final agency actions reviewable under the APA. [00:43:33] Speaker 02: I think that's basically right. [00:43:34] Speaker 02: Let me stress that our position is limited to the president's exercise of powers delegated specifically to him by Congress. [00:43:43] Speaker 02: So we're not suggesting [00:43:44] Speaker 02: that if Congress delegates legislative power to an agency and the president then tells the agency what he would like the agency to do, then that's not reviewable. [00:43:52] Speaker 05: This is about- Can you respond to the Wright case, though, from the DC Circuit, where they held that rules adopted by an executive order are not insulated from APA review, even if they are basically an indirect challenge to the president's authority under the EO? [00:44:10] Speaker 02: So that's trigger honor as to statutory authority. [00:44:12] Speaker 02: Nobody's disputing that [00:44:15] Speaker 02: that this court can review whether the rule and through the rule of the executive order is within statutory authority. [00:44:21] Speaker 02: What the court can't do is say, well, the agency implemented this $15 minimum wage, and that took agency action, so we're going to review whether that was arbitrary under pressure. [00:44:32] Speaker 02: The reason the court can't do that is that that would be effectively reviewing the president's own determination [00:44:37] Speaker 02: for arbitrariness and depreciation. [00:44:39] Speaker 02: The only thing the court can review as to the president's determination is whether it's consistent with the statute and with the Constitution. [00:44:45] Speaker 02: But that's not an issue here. [00:44:48] Speaker 02: Let me just briefly respond, if I might, to the point about other statutes. [00:44:52] Speaker 02: I think the key to understand about the Davis-Bacon Act, Service Contract Act, and so forth is that those are enacted for the benefit of employees. [00:45:00] Speaker 02: That's very clear. [00:45:01] Speaker 02: This court has said it. [00:45:02] Speaker 02: The Supreme Court has said it. [00:45:03] Speaker 02: So those are not statutes in which Congress was legislating [00:45:06] Speaker 02: to make sure that the government paid no more than necessary for projects it undertook. [00:45:12] Speaker 02: Those were enacted to make sure employees were not underpaid. [00:45:15] Speaker 02: So aside from everything else that's been said about how there's no inconsistency, they can both be complied with, there's no reason to read those statutes as reflecting Congress's judgment about the maximum amount that the government should pay for given contracts. [00:45:31] Speaker 02: Unless the court has further questions, we ask that the district court's judgment be affirmed. [00:45:34] Speaker 05: Thank you, counsel. [00:45:35] Speaker 05: We'll give you three minutes for rebuttal. [00:45:44] Speaker 03: Thank you, Your Honor. [00:45:45] Speaker 03: I want to start with the economy and efficiency analysis. [00:45:48] Speaker 03: My friend on the other side compared the wage mandate to a contract for a house and its improvement. [00:45:55] Speaker 03: But the wage mandate imposes very significant costs on a per-covered employee basis. [00:46:04] Speaker 03: In the reply brief at page seven, we note that the Department of Labor has said that [00:46:12] Speaker 03: covered employees are going to receive about $5,200 more per year. [00:46:17] Speaker 03: And it is simply unbelievable to think that the government is going to get $5,200 out of increased benefits from these workers' performance of the contracts. [00:46:29] Speaker 03: Also in the record is a affidavit from the Idaho Department of Fish and Game that explains how this actually affects [00:46:38] Speaker 03: that agency, they have a contract to improve salmon fisheries and the DFG had to raise wages for about 100 covered employees as well as others at an expense of $880,000 in direct and indirect costs on a $20.5 million contract. [00:46:57] Speaker 03: That's a significant increase and because the DFG is a government organization, it's going to have to use operating costs [00:47:06] Speaker 03: funds to offset that cost. [00:47:10] Speaker 03: The wage mandate rule does not explain how this is in the end going to actually offset the cost. [00:47:17] Speaker 03: On the three pages of benefits discussion in the rule, I don't think there's a single word that would change if we were talking about a $30 or $45 minimum wage as opposed to the $15 minimum wage. [00:47:30] Speaker 03: And I would just also point out, and this is a point that the Fifth Circuit makes in the Louisiana case, [00:47:34] Speaker 03: I didn't hear any limiting principle from my friend on the other side that would prevent the president from tomorrow saying that all contractor employees must take daily vitamins or exercise three times a week because then the federal government will have a more reliable contracting workforce, for example. [00:47:55] Speaker 03: If the court has no further questions, we ask this court would reverse the district court. [00:47:59] Speaker 05: Thank you. [00:47:59] Speaker 05: Thank you to both counsel for your arguments in this important case. [00:48:03] Speaker 05: The case is now submitted and that concludes our session for today. [00:48:09] Speaker 04: All rise.