Opposition Brief — SkyWest, Inc., et al., Petitioners v. Andrea Hirst, et al.

Supreme Court briefApr 24, 2019

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No. 18-1097

IN THE

SKYWEST, INC., ET AL.,

Petitioners,

ANDREA HIRST, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION

Eric F. Citron

GOLDSTEIN & RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

Gregory F. Coleman

Counsel of Record

Lisa A. White

Greg Coleman Law PC

800 S. Gay Street

Suite 1100

Knoxville, TN 37929

(865) 247-0080

greg@gregcolemanlaw.com

Counsel for Respondents

QUESTION PRESENTED

Whether the dormant commerce clause permits

airlines to ignore state and local wage and hour

regulations.

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTRODUCTION ........................................................ 1

STATEMENT .............................................................. 1

Factual Background .............................................. 1

II. Proceedings Below ................................................ 5

REASONS FOR DENYING CERTIORARI ................ 9

There Is No Genuine Disagreement Among the

Courts of Appeals on Any Question Presented ... 13

A. No court of appeals has struck down a

minimum-wage law on dormant-commerceclause grounds ............................................... 14

B. The Seventh Circuit’s rule is materially

indistinguishable from other courts’ ............ 16

C. There is no conflict over whether Congress

has approved local minimum wage

regulations .................................................... 20

II. The Decision Below Is Plainly Correct ............... 23

A. Pike balancing does not apply to neutral

local minimum wage laws ............................ 23

B. Congress has authorized state regulation

of airline employees’ minimum wages ......... 28

III. SkyWest Overstates the Importance of the

Question Presented ............................................. 30

IV. Pike’s Dubious Foundation Also Recommends

Denying Certiorari .............................................. 32

CONCLUSION .......................................................... 34

iii

TABLE OF AUTHORITIES

Cases

Amanda Acquisition Corp. v. Universal Foods

Corp.,

877 F.2d 496 (7th Cir. 1989) .................................. 16

Bostain v. Food Express, Inc.,

153 P.3d 846 (Wash. 2007) .............................. 15, 31

Browne v. P.A.M. Transp. Inc.,

2019 WL 333569 (W.D. Ark. Jan. 25, 2019) ......... 31

Brown-Forman Distillers Corp. v. N.Y. State

Liquor Auth.,

476 U.S. 573 (1986) ................................................ 19

Caballero v. Healthtech Res., Inc.,

2018 WL 949205 (D. Ariz. Feb. 20, 2018) ............. 31

Camps Newfound/Owatonna Inc. v. Town of

Harrison,

520 U.S. 564 (1997) ................................................ 32

Comptroller v. Wynne,

135 S. Ct. 1787 (2015) ............................................ 13

CTS Corp. v. Dynamics Corp. of Am.,

481 U.S. 69 (1987) .................................................. 32

Dep’t of Rev. of Ky. v. Davis,

553 U.S. 328 (2008) .......................................... 26, 33

GMC v. Tracy,

519 U.S. 278 (1997) .......................................... 19, 25

Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246 (1994) .............................................. 6, 7

Hicklin v. Orbeck,

437 U.S. 518 (1978) ................................................ 32

Int’l Franchise Ass’n v. Seattle,

803 F.3d 389 (9th Cir. 2015) .................................. 14

Lewis v. BT Inv. Managers, Inc.,

447 U.S. 27 (1980) ............................................ 21, 22

Lochner v. New York,

198 U.S. 45 (1905) ............................................ 11, 24

Nat’l Paint & Coatings Ass’n v. Chicago,

45 F.3d 1124 (7th Cir. 1995) .......................... passim

New Energy Co. of Ind. v. Limbach,

486 U.S. 269 (1988) ................................................ 26

New England Power Co. v. New Hampshire,

455 U.S. 331 (1982) ................................................ 21

Park Pet Shop, Inc. v. Chicago,

872 F.3d 495 (7th Cir. 2017) ................ 10, 11, 16, 18

Pike v. Bruce Church, Inc.,

397 U.S. 137 (1970) ........................................ passim

Prudential Ins. Co. v. Benjamin,

328 U.S. 408 (1946) ................................................ 23

Quill Corp. v. North Dakota,

504 U.S. 298 (1992) .................................................. 1

S.C. Johnson & Son, Inc. v. Transp. Corp. of Am.,

697 F.3d 544 (7th Cir. 2012) .................................... 7

S.-Cent. Timber Dev., Inc. v. Wunnicke,

467 U.S. 82 (1984) ...................................... 21, 22, 28

South Dakota v. Wayfair, Inc.,

138 S. Ct. 2080 (2018) ............................ 1, 13, 25, 32

Sullivan v. Oracle Corp.,

662 F.3d 1265 (9th Cir. 2011) .................... 14, 15, 20

United States v. S.-E. Underwriters Ass’n,

322 U.S. 533 (1944) ................................................ 23

Wyoming v. Oklahoma,

502 U.S. 437 (1992) ................................................ 21

Constitutional Provisions

U.S. Const. art. IV, §2, cl. 1

(Privileges and Immunities Clause) .......... 12, 32, 33

Statutes

Fair Labor Standards Act of 1938,

29 U.S.C. §201 et seq. ............................................... 1

McCarran-Ferguson Act,

15 U.S.C. §1011 et seq. ..................................... 22, 23

Railway Labor Act,

45 U.S.C. §151 et seq. ............................................... 6

29 U.S.C. §213(a) ................................................... 6, 28

29 U.S.C. §213(b)(3) ............................................... 6, 28

29 U.S.C. §218 ........................................................... 28

29 U.S.C. §218(a) ......................................... 6, 9, 21, 22

49 U.S.C. §14501 ......................................................... 5

49 U.S.C. §41713(b) ..................................................... 5

INTRODUCTION

The question presented is whether Petitioners SkyWest, Inc. and SkyWest Airlines, Inc. (SkyWest) and

their allied amici in the airline and trucking industries

enjoy a constitutional right to ignore state and local labor laws, including basic minimum wage requirements.

The district court said yes; the Seventh Circuit correctly

reversed. No court of appeals has granted the broad immunity petitioners seek. And providing that immunity

would require a vast expansion of the federal courts’

power to strike down otherwise valid state laws under

the dormant commerce clause—a power this Court has

been reining in, not expanding, over recent decades.

See, e.g., South Dakota v. Wayfair, Inc., 138 S. Ct. 2080

(2018) (overruling Quill Corp. v. North Dakota, 504 U.S.

298 (1992)). Ultimately, petitioners seek error correction absent any circuit disagreement or apparent error.

The petition should be denied.

STATEMENT

Factual Background

1. SkyWest is a commercial airline that flies commuter or regional routes for Delta, United, and other

large carriers. It operates a hub at Chicago O’Hare International Airport in Chicago, Illinois. In 2015, two

groups of former flight attendants sued SkyWest, alleging that SkyWest’s average wages and method of calculating pay violated state and local labor laws—including applicable minimum wage laws. One group of plaintiffs consisted of flight attendants based out of SkyWest’s hub in Chicago, and those flight attendants asserted only violations of the Fair Labor Standards Act

of 1938 (FLSA), 29 U.S.C. §201 et seq., and Illinois laws

and ordinances. Hirst v. SkyWest, Inc., N.D. Ill. No. 1:15‐

cv‐02036. The other group included flight attendants

based out of SkyWest’s California, Arizona, and Washington airports, and they likewise asserted only violations of the FLSA and laws applicable to the states and

cities where they were based. Tapp v. SkyWest, Inc.,

N.D. Ill. No. 1:15‐cv‐11117. These actions were consolidated in the Northern District of Illinois. Pet. App. 4a.

2. SkyWest assigns each of its flight attendants to

a specific base airport or “domicile.” Every trip or “pairing” for every flight attendant begins and ends at their

home base. These pairings consist of multiple flights

over one to four days, and flight attendants work exclusively with crew members from their own base on each

flight throughout a trip. In their suits, plaintiffs alleged

that SkyWest failed to abide by the state and local labor

laws of these respective domiciles for each flight attendant involved. C.A. App. 139-140, 357.

3. SkyWest admits that its “block time” policy pays

flight attendants an hourly wage only for “each hour

spent on the airplane after the cabin door is closed for

departure until the cabin door is opened for arrival.”

Pet. 7. It says this rate ranges from $17.50 to $40.13.

Id. But as any air traveler surely knows, flight attendants work far more than those hours. They must arrive

at the airport well before their flights to check in. They

ready planes for passengers and spend hours each

workday loading and unloading travelers. They clean

planes between trips, assist with wheelchairs, and wait

out any delays before or between flights. Thus, particularly when a SkyWest flight attendant works long

days and short flights, she can spend well more than

half her “duty day” hard at work but earning nothing.

The Federal Aviation Administration requires SkyWest to track the length of these “duty days” and the

turn time between flights, so SkyWest knows exactly

how many minutes a flight attendant worked on any

given day and at any given ground stop—including the

periods when the cabin doors are open. But even these

“duty days” do not include all the hours flight attendants are at work and under SkyWest’s control. For example, flight attendants must (like passengers) deal

with the uncertainties of clearing security and checking

in ahead of their flights. If they are at all early, they

must begin following SkyWest’s directions immediately,

but these minutes or hours are not included in the duty

day. C.A. App. 146, 365. Moreover, each duty day automatically ends 15 minutes after the cabin door opens

on the last flight. But if the plane takes longer to unload—because of the sheer number of passengers, the

need for wheelchair assistance, or any number of other

factors beyond the flight attendants’ control—that time

doesn’t show up in the “duty day” either. Id. at 148, 367.

Contrary to SkyWest’s suggestion, the result of this

system is that flight attendants frequently receive an

“average hourly wage—that is, the total wages paid divided by the total hours worked,” that “falls short of the

applicable minimum wage.” Contra Pet. 7. That is true

whether one averages across a given duty day, multiday “pairing,” or SkyWest’s own 15-day pay period. Indeed, this case involves specific allegations regarding

specific periods in which specific plaintiffs did not receive the applicable minimum wage.

Take, for example, flight attendant Molly Stover,

who lived and was based in Chicago, Illinois. “For the

[15-day] pay period lasting from October 1 to October

15, 2012, Stover was paid $656.25 for 86.07 hours of

duty time. Her actual hourly rate of pay for this period

was $7.62 per hour.” Pet. App. 19a. At that time, the

Illinois minimum wage was $8.25/hour. And these calculations do not include any of the off-the-clock hours

she worked in the airport that didn’t show up in her duty

hours—work that (according to the complaint) occurred

daily for SkyWest flight attendants. C.A. App. 165.

SkyWest’s block time system is problematic for

other reasons, too. For example, SkyWest bases some

flight attendants in states where employees must be

paid “for every hour of work.” Pet. 7. It is obvious why

some states choose to protect employees in this way,

even if their average wage over some period would

amount to a very minimal floor. Imagine leaving your

home to commute to work at 8:00am, working a grueling eleven-hour day, and returning home at 8:00pm,

only to find that you earned a total of $52.50 because,

for reasons wholly beyond your control, the cabin door

was only closed for three hours of that time. The employer chooses to employ the flight attendant in that

way on that day. The indignity of compensating that

day’s labor so poorly is not ameliorated by the possibility that the pay will be better on another day and average out to something just above minimum wage.

In fact, the truth may be worse than the imagining.

The most natural way to measure an average wage may

vary based on the job, but for flight attendants, it makes

sense to average earnings across “trips,” because that

represents a single cohesive unit of labor that a flight

attendant is required to work. A given trip may be one

duty day or multiple duty days, just as a single “shift”

for a factory worker may span multiple calendar days if

they work across the midnight hour. And SkyWest compensates many of these trips in insulting ways. From

October 18, 2013 to October 20, 2013, Sarah Hudson

worked a total of 36 hours and 54 minutes in duty time

and received 11 hours and 51 minutes of block-time

credit, at a rate of $17.50. That works out to about

$5.62/hour. On one of these days, she was forced to arrive at the airport at 4:00am. And, notably, over this

entire three-day pairing, she never left California,

where the minimum wage was then $8.00/hour.*

As the foregoing shows, SkyWest’s method for calculating wages is itself unlawful, and would treat many

workers unfairly even if SkyWest paid the minimum

wage either weekly or across its bi-monthly pay periods.

But, to be very clear, it doesn’t do that anyway. The

“essence” of the claims is not that SkyWest’s “method”

of calculating pay is some technical violation of state

law (contra Pet. 7), but rather that SkyWest pays average hourly wages across its own, chosen 15-day pay periods that fall below the bare minimum certain states

require. And if flight attendants’ pay is (correctly) analyzed based on daily or per-trip averages, these violations would be far worse.

II. Proceedings Below

Congress has used its affirmative Commerce

Clause power to grant airlines (and other commercial

carriers like railroads and trucking companies) many

special exemptions from state and federal regulation.

Among these is perhaps the broadest single express

preemption provision in the U.S. Code. The Airline Deregulation Act of 1978 (ADA) prohibits states from enforcing any law “related to a price, route, or service of

an air carrier.” 49 U.S.C. §41713(b). The same rule applies to interstate trucking under 49 U.S.C. §14501, a

SkyWest did not produce these documents until after briefing closed, but these records can be lodged at the Court’s request.

provision of the Federal Aviation Administration Authorization Act of 1994 (FAAAA). In addition, the Railway Labor Act (RLA), 45 U.S.C. §151 et seq.—which

was extended in part to airlines in 1936—eliminates

suits relating to most collective bargaining agreement

violations for airline employees. See, e.g., Hawaiian

Airlines, Inc. v. Norris, 512 U.S. 246, 248 (1994).

Air carriers subject to the RLA are also exempted

from the FLSA’s overtime regulations. See 29 U.S.C.

§213(b)(3). The FLSA’s minimum-wage requirements

still apply, however. See id. §213(a) (exempting other

employees, but not air carrier employees, from additional FLSA provisions). And Congress expressly provided that those minimum-wage requirements would

not be exclusive: Even for workers subject to the federal

floor, the Act emphasizes that it does not “excuse noncompliance with any Federal or State law or municipal

ordinance establishing a minimum wage higher than

the minimum wage established under this chapter.”

See id. §218(a).

Plaintiffs in this case alleged that SkyWest’s system for calculating and paying wages violated the FLSA

and the local labor laws applicable to each plaintiff’s

“domicile” airport. See supra p.2. Each plaintiff asserted that the state and local laws of their domicile airport governed the entirety of their employment; plaintiffs never attempted to apply the local laws applicable

where flight attendants’ trips landed and turned or

passed overhead. Id.

SkyWest responded by moving to dismiss, asserting

not only the present dormant-commerce-clause theory,

but also preemption under the ADA and RLA. The district court roundly rejected the latter theories. As to the

ADA, it cited several authorities holding that minimum

wage laws and other “state laws of general application”

are “too remote” from airline rates, routes, or services

to qualify for ADA preemption. As the court put it, “no

one thinks that the ADA or the FAAAA preempts these

and the many comparable state laws, [such as minimum wage laws], because their effect on price is too ‘remote.’” Pet. App. 82a-83a (quoting S.C. Johnson & Son,

Inc. v. Transp. Corp. of Am., 697 F.3d 544, 558 (7th Cir.

2012)) (alteration in original). As to the RLA, the district court readily held that suits that do not seek “to

create a contractual right or … enforce a contractual

right” are not preempted either. Id. at 85a (citing Hawaiian Airlines, 512 U.S. at 258).

The district court nonetheless held that, while Congress had decided not to preempt the application of

higher state minimum wage laws to airlines, the Constitution itself provided what Congress did not. Purporting to apply the test from Pike v. Bruce Church,

Inc., 397 U.S. 137, 142 (1970), the district court concluded that the “burden imposed on [interstate] commerce” from requiring carriers to pay flight attendants

applicable local minimum wages would be “clearly excessive in relation to the putative local benefits.” Pet.

App. 40a. In general, the district court reasoned that it

would be too complicated for airlines to measure how

much time flight attendants were spending in or flying

over different states, and to determine which state laws

applied to which flight attendants. Id. at 43a; see also

id. at 76a-77a. It then concluded that this putative “labyrinth of potentially conflicting wage laws” was “precisely the type of burden on interstate commerce that

the Commerce Clause prohibits.” Id. at 77a. In so holding, the district court did not purport to identify the lo-

cal benefits of local wage regulations, let alone to balance them against the asserted burdens to determine if

those burdens were “clearly excessive.”

Citing two independent bases for its conclusion, the

Seventh Circuit reversed.

First, the Seventh Circuit noted that because there

was no sense in which the state statutes at issue imposed unique, discriminatory burdens on interstate

commerce, they were not subject to Pike’s balancing

test. As the court explained, under its longstanding

precedent, the dormant commerce clause applies only to

state laws that impose special burdens on out-of-state

businesses—that is, burdens that can be said to create

“discrimination against interstate commerce, ‘either expressly or in practical effect.’” Pet. App. 9a (citation

omitted). Conversely, “if the state law affects commerce

without any reallocation among jurisdictions and does

not give local firms any competitive advantage over

those located elsewhere, we apply the normal rational

basis standard.” Id. at 9a-10a (citation omitted). SkyWest had not even attempted to satisfy these hurdles:

It “failed to allege any discrimination against interstate

commerce,” and did not try to show that the burdens of

applying state minimum wage laws to its flight attendants so outweighed the benefits as to fail on rationalbasis review. See id. at 10a. “This failing preclude[d]

the application of the dormant Commerce Clause” to the

plaintiffs’ state-law claims. Id.

Second, the Seventh Circuit explained that the

dormant commerce clause would not apply to these

state laws even had SkyWest attempted the requisite

showings, because those laws had been “expressly authorized by Congress.” Pet. App. 10a. In so holding, the

Seventh Circuit pointed to “Section 218(a) of the FLSA.”

Id. at 10a-11a. In the FLSA, Congress used its Commerce Clause power to enact a comprehensive scheme

protecting workers. That scheme was detailed enough

to refer specifically to air transportation workers—singling them out as a group that would be exempted from

its overtime requirements, but not from its minimum

wage rules. Nonetheless, in Section 218(a), Congress

specifically authorized states and localities to enact

higher minimum wage laws for the workers covered by

the FLSA, providing that nothing in “this chapter …

shall excuse noncompliance with any Federal or State

law or municipal ordinance establishing a minimum

wage higher than the minimum wage established under

this chapter.” Id. at 11a (quoting 29 U.S.C. §218(a)).

“Because Congress expressly authorized states and localities to legislate in this realm,” the Seventh Circuit

held, “the application of multiple minimum wage laws

to an employer cannot violate the dormant Commerce

Clause.” Id.

REASONS FOR DENYING CERTIORARI

SkyWest’s petition for certiorari should be denied

for three key reasons.

First, SkyWest’s alleged circuit conflicts are illusory; nothing here resembles a disagreement among the

circuits that supports this Court’s review. That is particularly true if one considers the Seventh Circuit’s actual holding—which SkyWest’s circuit-split discussion

ignores. The uncontroversial ruling below was that the

Constitution permits the application of state wage and

hour laws to flight attendants and other transportation

employees. While SkyWest portrays the Seventh Circuit as an outlier, it does not purport to identify a single

minimum wage law that has ever been struck down un-

der the dormant commerce clause for being too burdensome on interstate commerce. If there is a genuine outlier in this case, it is SkyWest’s view that flight attendants cannot be protected by the minimum wage laws of

any state or local government, and that only Congress

can protect their working conditions. Because the Seventh Circuit’s holding does not even allegedly conflict

with an opinion of any other court of appeals, there is

no basis for this Court’s review.

Even indulging SkyWest’s effort to abstract the

Seventh Circuit’s decision into a meta-holding about the

nature of dormant-commerce-clause analysis cannot

conjure the conflict SkyWest suggests. Pointing to Park

Pet Shop, Inc. v. Chicago, 872 F.3d 495 (7th Cir. 2017),

SkyWest asserts that, “[f]or the past two years,” the

Seventh Circuit has followed a form of dormant-commerce-clause analysis that “diverges sharply” from this

Court’s framework and all the other circuits’. Pet. 19.

But that is not correct. The Seventh Circuit’s analysis

in Park Pet Shop follows almost word-for-word from a

detailed, decades-old opinion by Judge Easterbrook.

See Nat’l Paint & Coatings Ass’n v. Chicago, 45 F.3d

1124 (7th Cir. 1995). For whatever reason, SkyWest’s

petition neglects to cite that decision. Compare Pet. viii

(omitting National Paint), with Park Pet Shop, 872 F.3d

at 501-04 (discussing National Paint more than a dozen

times). National Paint clarifies the Seventh Circuit’s

rule in a way that brings it entirely in line with this

Court’s approach and that of the other circuits. Like

this Court and all others, the Seventh Circuit applies

the dormant commerce clause by: (1) using strict scrutiny for laws that facially discriminate against interstate commerce; (2) applying Pike’s balancing test to

laws that “have discriminatory practical effects on interstate commerce—or, in the National Paint taxonomy, state laws that have disparate impact on interstate commerce,” Park Pet Shop, 872 F.3d at 501-02 &

n.1, and (3) applying only “normal rational basis” review where the state law at issue “affects commerce

without any reallocation among jurisdictions and does

not give local firms any competitive advantage over

those located elsewhere.” Pet. App. 9a-10a.

Second, the Seventh Circuit’s holding—considered

at any level of generality—is obviously correct. As to

the actual holding, the application of state and local

minimum wage laws to transportation workers is uncontroversial: No judge even called for a response on

SkyWest’s petition for rehearing below, and SkyWest

produced no case striking down such laws as unconstitutional. Nor is there anything wrong with the Seventh

Circuit’s general mode of analysis. As Judge Easterbrook fulsomely explained in National Paint, “[i]f the

balancing approach of Pike supplied the standard applicable to all laws affecting commerce … then judicial review of statutory wisdom after the fashion of Lochner

would be the norm.” 45 F.3d at 1131. But that is exactly the rule that SkyWest seeks: On its view, a rule

of per se invalidity applies to state laws that discriminate against interstate commerce in any way, and Pike

balancing applies to everything else. See, e.g., Pet. 14.

Indeed, the only limiting principle SkyWest supplies for

the dormant commerce clause is winning or losing on

the merits of Pike’s own, ill-defined balancing test, see

id. at 34, allowing judges to strike down virtually any

law where they think the local benefits might not justify

the putative burdens on commerce.

Moreover, if there is one place where it would be

especially inappropriate to allow judges to strike down

local laws under the dormant commerce clause, this

would be it. Congress has made comprehensive judgments about how much state law to preempt in the labor space and has separately decided to grant airlines

and trucking companies a particularly broad immunity

from all kinds of local regulations. See supra pp.5-6. It

takes real chutzpah for SkyWest and its amici to seek

an even broader immunity under the Constitution than

the one Congress already granted. Indeed, the right

way to understand that request is just as the Seventh

Circuit did—as flouting not only the will of the local legislature, but of Congress as well.

Third, SkyWest vastly overstates the supposed negative consequences that will flow from the decision below. For example, it imagines that the Seventh Circuit’s dormant-commerce-clause rule will bless even extreme acts of local favoritism, leading to economic balkanization. See, e.g., Pet. 3-4 (hypothesizing laws creating higher minimum wage for local citizens than outof-staters). But the Privileges and Immunities Clause

of Article IV already prohibits precisely those laws, and

has the added virtue of appearing in the Constitution.

Moreover, as the complaint in this case explained, other

airlines already comply with local labor requirements,

and SkyWest has the data to do so ready at hand. Any

complications the district court purported to identify

here required it to apply state laws in ways other than

the plaintiffs claimed—to flight attendants passing

through a state’s airspace or the like. But even were

such complications presented here (and they are not),

they can be handled with basic rules limiting a state’s

prescriptive jurisdiction, rather than an unwritten constitutional provision that forecloses state legislation altogether.

If there were any reason to grant this case, it would

be to decide whether it remains appropriate for federal

judges ever to use Pike’s cost-benefit analysis to strike

down otherwise valid laws—a question on which several Justices of this Court appear dubious. See, e.g.,

Wayfair, 138 S. Ct. at 2100 (Thomas, J., concurring); id.

at 2100-01 (Gorsuch, J., concurring). More realistically,

however, the Court’s mounting skepticism of this part

of dormant-commerce-clause analysis, and the disagreement among its members about the basic premises,

are obvious reasons to deny. Unless this Court intends

to vastly expand the category of state laws foreclosed by

the “Imaginary Commerce Clause,” see Comptroller v.

Wynne, 135 S. Ct. 1787, 1811 (2015) (Scalia, J., dissenting), there is no reason to review the Seventh Circuit’s

plainly correct judgment.

There Is No Genuine Disagreement Among the

Courts of Appeals on Any Question Presented.

The petition offers two proposed questions for this

Court’s review, neither of which concerns the court of

appeals’ actual holding that local labor laws can be applied to airline workers. But whether one considers the

actual holding or the abstracted theoretical questions

petitioners present, there is no genuine split that recommends this Court’s review.

A. No court of appeals has struck down a

minimum-wage law on dormant-commerceclause grounds.

The first and most significant respect in which this

case fails to present any circuit conflict concerns the actual holding below. Petitioners do not purport to identify a court of appeals decision that has invalidated a

local minimum wage regulation based on the dormant

commerce clause, and respondents are unaware of any

such decision.

The nearest decisions to the issue are from the

Ninth Circuit, and both uphold the application of local

state and hour regulations. In International Franchise

Ass’n v. Seattle, 803 F.3d 389 (9th Cir. 2015), the court

considered a dormant-commerce-clause challenge to a

Seattle ordinance imposing a higher minimum wage at

franchises of large chain restaurants. There was at

least a substantial theory of disparate impact on out-ofstate firms there because all the large chain restaurants

were based outside Seattle. But because the franchises

themselves were local, the Ninth Circuit reasoned that

“to the extent the ordinance has an effect, its primary

or perhaps exclusive effect is to harm in-state firms—

franchisees located in Seattle,” who would “face a

higher wage requirement relative to franchisees outside

of Seattle and non-franchisees.” Id. at 406. It therefore

rejected the dormant-commerce-clause challenge for

failure to show a “substantial burden on interstate commerce.” Id. at 399.

Similarly, in Sullivan v. Oracle Corp., 662 F.3d

1265 (9th Cir. 2011), the Ninth Circuit considered the

claim that it violated the dormant commerce clause for

California to apply its minimum wage law to work per-

formed in California whether done “by California residents or by out-of-state residents.” Id. at 1271. The

court easily concluded that there “is no plausible

Dormant Commerce Clause argument when California

has chosen to treat out-of-state residents equally with

its own.” Id. It thus upheld the local minimum wage

regulation there as well.

The Washington Supreme Court has also considered the same issue and come to the same exact conclusion. In Bostain v. Food Express, Inc., 153 P.3d 846, 855

(Wash. 2007) (en banc), it held that, as long as Washington’s minimum wage law was applied to all hours for

drivers based out of Washington, there was “no persuasive argument” that the law would violate Pike.

The ultimate point is simple: No court of appeals

has even seriously considered invalidating a local minimum wage regulation on dormant-commerce-clause

grounds. That is unsurprising. Because local minimum

wage rules impose higher burdens on all local employment, there is no plausible way for them to impose special or unique burdens on interstate commerce in particular. Indeed, a state’s higher-than-average minimum

wage laws would impose their greatest burden on firms

doing business exclusively within the state.

Consider this case as an example. Every employer

in Illinois must pay Illinois’ minimum wage, be it a WalMart or a tiny mom-and-pop store. Plaintiffs say SkyWest should pay the same minimum wage to its flight

attendants based out of Illinois airports, too. The only

unique “burden” this rule would impose on SkyWest (or

another interstate firm) would arise from that firm trying to devise a way to legally pay Illinois-based employees less than the wages a firm based exclusively in Illinois would pay. SkyWest can decide whether those

wage savings justify the administrative costs it catalogs

throughout its petition. See, e.g., Pet. 32-34. But the

opportunity to devise a scheme to save money on wages

that no Illinois firm could save is not a burden on interstate commerce imposed by Illinois. And this explains

why SkyWest can find no case holding that a local minimum wage rule violates the dormant commerce clause.

B. The Seventh Circuit’s rule is materially

indistinguishable from other courts’.

Because there is no plausible circuit conflict respecting the Seventh Circuit’s holding, SkyWest tries to

develop a conflict on the meta-question whether a state

law is “exempt from the Dormant Commerce Clause

merely because it does not discriminate against interstate commerce.” Pet. i. To that end, it catalogs statements from this Court and others saying that non-discriminatory regulations are still subject to Pike’s balancing test, see id. at 13-18, and then says that the Seventh Circuit has diverged from this rule only for the

past two years, see id. at 19. This is not a fulsome account of the rule in either the Seventh Circuit or the

other courts.

Start with the Seventh Circuit. If it has a different

rule, it did not start with Park Pet Shop in 2017. Instead, as that case makes abundantly clear, it started

almost 25 years ago with Judge Easterbrook’s careful

opinion in National Paint, 45 F.3d at 1130-32—or perhaps even earlier still. See id. at 1130 (attributing rule

to Amanda Acquisition Corp. v. Universal Foods Corp.,

877 F.2d 496, 505 (7th Cir. 1989)). As Judge Easterbrook explained, the Seventh Circuit “has not questioned the ‘validity’ of Pike (for an inferior court must

apply the Supreme Court’s decisions without regard to

doubts about their wisdom).” National Paint, 45 F.3d

at 1130. Instead, it was “obliged to determine the

proper scope of its application,” id., and determined that

unless a law imposes some unique burden on interstate

commerce in particular, “the dormant commerce clause

does not replace the rational-basis inquiry with a

‘broader, all-weather, be-reasonable vision of the Constitution.’” Id.

Accordingly, the Seventh Circuit reasonably divides laws attacked under the dormant commerce

clause into three categories. First, like all other circuits, it identifies laws that are demonstrably protectionist, either because they discriminate against interstate commerce on their face, or because their disparate

effects on interstate commerce are very “powerful, acting as an embargo on interstate commerce without hindering intrastate sales.” 45 F.3d at 1131. These laws

are subject to strict scrutiny, and almost always invalid.

Id. Second is a category of laws “with mild disparate

effects and potential neutral justifications,” which “are

analyzed under Pike.” Id. And the “third category comprises laws that affect commerce without any reallocation among jurisdictions—that do not give local firms

any competitive advantage over those located elsewhere.” Id. These laws are not subject to Pike, and instead subject only to ordinary rational-basis review, because “[u]nless the law discriminates against interstate

commerce expressly or in practical effect, there is no

reason to require special justification.” Id.

Notice that the Seventh Circuit uses the concept of

“discrimination” against interstate commerce in three

distinct ways, whereas SkyWest’s petition uses only

two. On the Seventh Circuit’s view, state laws can be

(1) facially discriminatory; (2) discriminatory enough in

effect that they should be treated as protectionist; or

(3) mildly discriminatory in effect in a way that makes

Pike balancing appropriate. When SkyWest suggests

that strict scrutiny applies to “discriminatory” laws and

Pike applies to everything else, it collapses these potential meanings of “discrimination,” undersells the laws to

which the Seventh Circuit applies dormant-commerceclause review, and overstates the scope of that review

in other courts.

Importantly, this is the point Judge Hamilton was

making in the dissent SkyWest mistakenly invokes.

See Pet. 22. In Park Pet Shop, Judge Hamilton faulted

his colleagues not for eliminating Pike balancing altogether, but rather for “tr[ying] to confine Pike balancing

to cases of ‘discrimination’ … by using a notion of ‘discrimination’ so broad that it applies to ‘even-handed’

legislation with ‘only incidental’ effects on interstate

commerce.” 872 F.3d at 504 (Hamilton, J., dissenting

in part) (quoting Pike). Thus, there may be a difference

in the precise words used by the Seventh Circuit and

other courts to describe the set of laws to which Pike

balancing applies. But the substance of the rules is the

same: The courts apply Pike to laws that have a disparate impact on interstate commerce, but only where

those disparate effects are mild enough that they may

be justified, and do not evince outright protectionism.

The Seventh Circuit is not alone in struggling to define the set of laws to which Pike applies, for many

courts (including this Court) have noted the difficulty in

drawing the line between the “discrimination” that merits strict scrutiny and the kind of disparate impact on

interstate commerce that leads to Pike. Put another

way, it is well-recognized that the set of laws which “discriminate against interstate commerce … in practical

effect” is not universally subject to strict scrutiny, because most kinds of disparate impact are clearly subject

only to Pike balancing. Contra Pet. 13-14 (suggesting,

incorrectly, that this Court applies strict scrutiny to all

laws with disparate “practical effect[s]” on interstate

commerce). As this Court has put it, “there is no clear

line separating the category of state regulation that is

virtually per se invalid under the Commerce Clause,

and the category subject to the Pike v. Bruce Church

balancing approach.” Brown-Forman Distillers Corp. v.

N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986).

Even the cases on which SkyWest most heavily relies make this point explicitly. As this Court made clear

in GMC v. Tracy, 519 U.S. 278 (1997), in the very footnote SkyWest cites, see Pet. 15 (citing Tracy note 12):

[O]ur cases have indicated that even nondiscriminatory state legislation may be invalid

under the dormant Commerce Clause, when, in

the words of the so-called Pike undue burden

test, “the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” There is, however, no

clear line between these two strands of analysis, and several cases that have purported to apply the undue burden test (including Pike itself)

arguably turned in whole or in part on the discriminatory character of the challenged state

regulations[.]

519 U.S. at 298 n.12 (emphasis added).

Simply put, the only “conflict” at issue here is over

whether to classify Pike cases as involving a form of disparate impact “discrimination” that this Court itself has

identified as present in Pike and its progeny, or whether

to call laws that impose disparate burdens on interstate

commerce by some other name. This is a difference in

wording but not substance. Indeed, consider Sullivan—

the Ninth Circuit decision described above. It recited

the same dictum on which SkyWest relies over and over

again: that even “[i]f a statute ‘regulates even-handedly

to effectuate a legitimate local public interest, and its

effects on interstate commerce are only incidental, it

will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.’” Compare 662 F.3d at 1271 (quoting Pike),

with Pet. 14-15 (myriad similar quotes). But Sullivan

then immediately concluded that there was “no plausible Dormant Commerce Clause argument when California has chosen to treat out-of-state residents equally

with its own.” 662 F.3d at 1271. SkyWest would presumably classify the Ninth Circuit as following a different rule from the Seventh Circuit—in fact, SkyWest

does just that. See Pet. 16-18. But it is abundantly

clear that both require some form of disparate impact

between interstate and intrastate commerce before applying Pike balancing, whether it takes the form of outright discrimination or more subtle, incidental discriminatory impacts.

C. There is no conflict over whether

Congress has approved local minimum

wage regulations.

SkyWest’s second question presented is just like its

first. As an initial matter, SkyWest does not even attempt to establish a circuit conflict respecting the actual

holding below. It does not purport to identify any court

that has held that local minimum wages are subject to

dormant-commerce-clause challenge despite Congress’s

extensive, contrary legislation in this area, and it does

not purport to identify any court that has held Section

218(a) insufficient to authorize local regulation. Having

failed to identify any conflictual holdings, SkyWest cannot justify this Court’s plenary review. This Court could

end its consideration there.

Again, in response to this weakness, SkyWest tries

to develop a conflict over an abstract question—this

time, whether “a state law [is] exempt from the

Dormant Commerce Clause merely because Congress

has passed a federal statute saving the law from

preemption under that statute.” Pet. i. But that level

of abstraction makes the question unintelligible. In

particular, it relies on the notion that the FLSA’s specific references to both airline employees and higher

state minimum wages is “merely” a savings clause, and

that this Court has a set of clear principles dividing

mere savings clauses from provisions that satisfy the

“clear-statement rule” that SkyWest proposes. See Pet.

24-25. But that, again, is not correct: The analysis required is a contextual inquiry into “congressional intent,” S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S.

82, 91 (1984), including (grossly outdated) inquiries into

legislative history and the like that pervade each of the

authorities on which SkyWest relies. See, e.g., Wyoming

v. Oklahoma, 502 U.S. 437, 458 (1992) (rejecting argument that congress authorized state regulation based

on silence in legislative history); New England Power

Co. v. New Hampshire, 455 U.S. 331, 341 (1982) (same);

Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 49 (1980)

(same).

SkyWest can only give the contrary impression (i.e.,

that a clear-statement rule exists, and that the Seventh

Circuit has rejected it) by inserting the word “only” in

front of quotations to transform sufficient conditions

into necessary ones. See, e.g., Pet. 24. Indeed, in the

very case that SkyWest cites, this Court expressly rejected a clear-statement rule that would require Congress to expressly refer to the dormant commerce clause

or the like to authorize state regulation. See S.-Cent.

Timber, 467 U.S. at 91 (“There is no talismanic significance to the phrase ‘expressly stated[.]’”); contra Pet. 24

(suggesting Court has held that Congress must expressly state intent to shut off dormant-commerceclause review).

The real rule is that Congress must “affirmatively

contemplate [the] otherwise invalid state legislation.”

See S.-Cent. Timber, 467 U.S. at 91-93. And that is exactly what the Seventh Circuit found here. See Pet.

App. 10a-11a (concluding that FLSA “expressly authorized” states to impose higher minimum wages). SkyWest may disagree with the Seventh Circuit’s conclusion, but it applies the same legal rule as this Court and

every other.

Indeed, from the (controlling) perspective of congressional intent, the FLSA is plainly different from a

“mere” savings clause for several reasons. These are explained in greater depth below, but it is especially notable that Section 218(a) does not just save state laws

about labor in generic fashion, but rather expressly contemplates minimum wage laws where those minimum

wages are higher than the FLSA requirement—the exact kind of law at issue here. This is the polar opposite

of the kind of savings clause this Court found inadequate in Lewis, 447 U.S. at 47-48. And, meanwhile, the

only example SkyWest gives of an act of Congress that

is adequate to authorize state legislation—the McCarran-Ferguson Act, 15 U.S.C. §1011 et seq.—was itself

primarily intended as a savings clause that would ex-

empt certain state insurance regulations from the Sherman Act. See Prudential Ins. Co. v. Benjamin, 328 U.S.

408, 417-18 (1946) (explaining that McCarran Act was

passed in response to “precedent-smashing” holding in

United States v. South-Eastern Underwriters Ass’n, 322

U.S. 533 (1944), that Sherman Act applied to regulations on interstate sale of insurance).

Ultimately, there is no disagreement about the governing rule—the Seventh Circuit simply applied this

Court’s standard to a unique statute no other court has

considered, and it reached a conclusion SkyWest does

not like. That does not justify this Court’s review.

II. The Decision Below Is Plainly Correct.

SkyWest acknowledges that it challenges two independent holdings, both of which would have to be in error for reversal. That vehicle problem aside, however,

both holdings below are obviously correct.

A. Pike balancing does not apply to

neutral local minimum wage laws.

As multiple courts have held, there is “no plausible

Dormant Commerce Clause argument” against a local

labor law that imposes identical obligations on local and

out-of-state workers and businesses. The minimum

wage laws at issue here fit squarely within that box.

Local minimum wages raise costs for local companies;

they do not impose any unique costs or compliance burdens on out-of-state entities, and they certainly do not

provide a business advantage to local competitors over

their interstate rivals. The Seventh Circuit calls such

laws “non-discriminatory” and so does not analyze them

under Pike; other courts (like this one) say such laws

cannot plausibly be challenged under the dormant commerce clause because they impose no special burdens on

interstate commerce. In either phrasing, the holding is

obviously correct.

SkyWest proposes a very different rule. On its

view, even if a state law imposes no special burdens on

interstate commerce—indeed, even if its effect is to disadvantage local firms over interstate rivals—that law is

still subject to challenge on the theory that the burden

on commerce generally (including interstate commerce)

is too great. That cannot be right. As Judge Easterbrook explained in National Paint, this view ends in

pure Lochnerism. See 45 F.3d at 1131-32.

In fact, consider the following case. Suppose a few

states pass laws providing that bakery workers cannot

work more than 40 hours/week. See Lochner v. New

York, 198 U.S. 45, 52 (1905). A nationwide grocery

chain complains: Some of its stores bake their own

bread; states define “bakery” differently; states (might)

have different rules about who in a grocery store counts

as a bakery worker; some of its workers with 60-hour

weeks might only work in the bakery a few hours each

day; and all of these complications make the law too

burdensome to apply to this interstate firm. Cf. Pet. 3234 (cataloging similar complaints). SkyWest’s position

is that—precisely because this law is “evenhanded” and

imposes only “incidental” burdens on interstate commerce—Pike balancing does apply and judges are free

to compare their assessments of the burdens on the national grocer against their views of how beneficial it is

for government to limit a willing worker’s hours. Surprise! It turns out the law does “enact Mr. Herbert

Spencer’s Social Statics.” See Lochner, 198 U.S. at 75

(Holmes, J., dissenting).

Indeed, this case itself shows that the threat of

Lochnerism from SkyWest’s rule is all too real. The district court resolved this case against plaintiffs on a motion to dismiss, with no factual record whatsoever on

the actual burdens SkyWest or other airlines would face

from plaintiffs’ proposed application of state law. And,

much worse than that, the district court didn’t

acknowledge a single local benefit from the application

of a city’s local minimum wage law to local laborers who

live in and are based out of that locality, let alone perform the necessary balancing of these incommensurate

values. As this shows, applying Pike balancing to every

law only invites district courts to substitute their own

judgments about wise policy for local elected officials’.

Thus, the better rule is certainly not that Pike applies to every evenhanded regulation that incidentally

burdens commerce. Instead, Pike applies to laws that

impose unique burdens on interstate commerce, provided those burdens are the incidental products of an

evenhanded regulation, and not evidence of outright

protectionism. This explains why even this Court has

clarified that “several cases that have purported to apply the undue burden test (including Pike itself) arguably turned in whole or in part on the discriminatory

character of the challenged state regulations.” See

Tracy, 519 U.S. at 298-99 n.12.

It also explains why it is all-but impossible to find

modern examples of this Court striking down state laws

because it would be too complicated for multi-state

firms to comply with multi-state regulation. Indeed,

the trend has been the exact opposite: This Court has

been eliminating barriers to state regulation where it

has previously thought multi-state compliance would be

too hard, see Wayfair, 138 S. Ct. 2080 (2018), and it has

now centered dormant-commerce-clause analysis entirely around the goal of preventing protectionism. See,

e.g., Dep’t of Rev. of Ky. v. Davis, 553 U.S. 328, 337-38

(2008) (“The modern law of what has come to be called

the dormant Commerce Clause is driven by concern

about ‘economic protectionism—that is, regulatory

measures designed to benefit in-state economic interests by burdening out-of-state competitors.’”) (quoting

New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 27374 (1988)). If anything, this Court has signaled deep

skepticism towards using Pike to invalidate non-discriminatory state laws, “even [when] a Pike examination might generally be in order in this type of case.” Id.

at 353 (refusing to engage in Pike balancing because the

“Judicial Branch is not institutionally suited to draw reliable conclusions of the kind that would be necessary”).

In short, no case from this Court in decades provides

support for the kind of free-form judicial balancing—unmoored from concerns of discrimination—SkyWest proposes here.

In fact, Pike itself does not support that approach.

In Pike, Arizona passed a statute that regulated how

melons grown in the state could be shipped, and forbade

shipping unpacked melons. The point of the law was to

ensure the good reputation of Arizona melons by preventing them from being packed in ways that concealed

bad fruit. See 397 U.S. at 142-44. But the law had the

incidental effect of forcing an Arizona grower that

packed its melons in nearby Blythe, California to relocate its packing facilities to Arizona at huge expense.

Id. at 145. Critically, this Court noted that the “nature

of that burden is, constitutionally, more significant

than its extent,” emphasizing that it had “viewed with

particular suspicion state statutes requiring business

operations to be performed in the home State that could

more efficiently be performed elsewhere.” Id. Put otherwise, it was because this law incidentally imposed a

special burden on interstate commerce—a burden that

would have been per se unlawful if imposed directly—

that this Court held the application of the Arizona law

invalid. Id. It was not because it would be complicated

for nationwide firms who did pack their fruit in Arizona

to comply with the packing requirements of all fifty

states. See id. at 143 (noting that, “as applied to Arizona growers who package their produce in Arizona, we

may assume the constitutional validity of the Act”).

And it was not even based on a free-form balancing of

the general economic burdens on the interstate grower

against the benefits of the fruit-packing law.

Even putting all this aside, there is another insurmountable problem with SkyWest’s approach. Plaintiffs’ sole theory in this case was that a flight attendant’s entire employment is governed by the local

law of her domicile airport—for example, that Chicagobased flight attendants needed to be paid the Illinois

minimum wage for all their work. See supra p.6. On

that theory, the law is very easy for SkyWest to apply,

and there is no risk whatsoever of conflicting regulations. SkyWest (and the district court) for some reason

considered compliance burdens that could be imposed

on SkyWest if states attempted to extend their prescriptive jurisdiction over flight attendants in other ways

that the plaintiffs did not assert here. But this is an asapplied challenge: SkyWest itself argues that local minimum wage laws are invalid only as applied to their

flight attendants, not to everyone. Accordingly, the only

appropriate burdens to analyze are the burdens that

arise from the law as the plaintiffs propose to apply it.

Because SkyWest has never developed any evidence

that applying the law based exclusively on the domicile

airport is difficult—and it would, in fact, be very easy—

SkyWest cannot prevail, and this Court would be wading into the issue without any useful record at all.

B. Congress has authorized state regulation

of airline employees’ minimum wages.

The Seventh Circuit was also correct to conclude

that Congress has expressly contemplated laws like

those the plaintiffs relied on here. That is true both because of unique features of the FLSA, and because of

the critical context provided by other federal laws.

As noted above, the FLSA does not merely save all

state labor regulations from its own preemptive effects.

Instead, it contains two specific indications that Congress intended airline workers in particular to remain

protected by state minimum wage laws. First, in Section 213, Congress specifically identified the employees

of air carriers as subject to the FLSA’s minimum-wage

regulations, but not its overtime rules. See 29 U.S.C.

§213(a), (b)(3). Then, in Section 218, Congress specifically provided that neither the FLSA’s federal minimum wage nor anything else in the statute would “excuse noncompliance with any Federal or State law or

municipal ordinance establishing a minimum wage

higher than the minimum wage established under this

chapter.” 29 U.S.C. §218. This leads to the inexorable

conclusion that Congress “affirmatively contemplate[d]

[the] otherwise invalid state legislation,” see S.-Cent.

Timber Dev., Inc., 467 U.S. at 91, concluding that—even

though it had provided for a uniform minimum wage—

states should still be able to impose a higher wage for

this specifically contemplated class of employee among

others.

Put another way, Congress decided in the FLSA to

use its Commerce Clause power to preempt state minimum wage laws for flight attendants below the federal

floor, but not state laws above it. That kind of Commerce Clause legislation demonstrates far more express

contemplation and approval of the relevant local laws

than a mere savings clause.

The broader context of the U.S. Code makes this

even clearer. Congress knows that airlines and trucking companies have complaints about the difficulties of

dealing with multistate regulation—the same complaints SkyWest and its amici are airing here. Having

heard those cries, it crafted for these industries a

hugely broad preemption clause, foreclosing any local

legislation even “related to” a “price, route, or service”

of such companies. See supra pp.5-6. But, even then,

Congress decided not to cut off state laws related to these

firms’ employment practices. Particularly when this reality is combined with the express contemplation of state

minimum wage laws in the FLSA, the only appropriate

inference is that Congress has affirmatively contemplated, and decided not to foreclose, the application of

higher state minimum wages to airline employees.

SkyWest’s contrary position shows substantial

chutzpah—and well demonstrates the wisdom with

which this Court has limited dormant-commerce-clause

interventions over recent decades. The judgment SkyWest seeks to impose upon this Court is not just better

suited to Congress; it is one Congress already made—

determining that the burdens on interstate commerce

did not justify preempting state regulation of air carriers’ employment practices. Having gone to Congress

and failed to secure exemption from these state laws

through (at least) two separate avenues, SkyWest and

its amici believe it appropriate for the Court to grant

them the same exemption anyway under the Constitution. This disrespects the judgments of both state and

local authorities and the federal Congress. If Congress

thinks it necessary to preempt a field of state regulation, the Supremacy Clause permits that. But striking

down a state law Congress has contemplated and appears to have approved, on the ground that Congress

might later fix that constitutional error with a “clear

statement” of its manifest contrary intent, ignores the

constitutional injury to states in the interim, and likewise ignores the available evidence from the paramount

constitutional authority as to its views on the matter.

Here, the right inference regarding congressional

intent is unambiguous. The court of appeals’ judgment

was correct and does not merit review.

III. SkyWest Overstates the Importance of the

Question Presented.

In a very brief discussion, SkyWest suggests that

this case is important because the Seventh Circuit’s

analysis will authorize discriminatory state labor laws,

while hamstringing the operations of interstate carriers. Both these concerns are vastly overstated. Among

other things, SkyWest simply ignores the doctrines that

can appropriately control for the horribles it puts on parade.

First, there is no basis for SkyWest’s assertion that

the burdens of compliance authorized by the holding below will put air carriers like SkyWest out of business or

subject them to intolerable costs. Other airlines have

created payroll systems that comply with applicable

state and local minimum wage laws without serious

trouble. C.A. App. 149, 368. Moreover, the application

of state and local law that the plaintiffs sought here was

very straightforward: SkyWest was only obligated to

ensure that Chicago-based flight attendants were paid

Chicago minimum wage for their entire work day or

multi-day trips, each of which began and ended in Chicago. The information necessary to carry out that calculation already appears on each flight attendant’s

schedule records. See, e.g., id. at 144, 363. The principal compliance burden for SkyWest here involves a calculator.

Second, and relatedly, even if the issue were

properly presented here, there is no reason to fear that

the result of the Seventh Circuit’s holding would be to

subject air carriers to multiple overlapping state regulations as they flew through different states’ airspace or

the like. It is a commonplace issue in employment cases

that employees often work in more than one state, and

courts routinely resolve such issues—including in cases

almost identical to this one—through ordinary choiceof-law analysis. See, e.g., Bostain, 153 P.3d at 856

(choosing Washington law for Washington-based interstate drivers and noting “strong argument” that “that

employer would not be required, under a choice of laws

analysis, to comply with another state’s wage and hour

statutes as to that employee”); Browne v. P.A.M.

Transp. Inc., 2019 WL 333569, at *4-5 (W.D. Ark. Jan.

25, 2019) (choosing Arkansas law to govern minimum

wage claims of Arkansas-based interstate drivers); Caballero v. Healthtech Res., Inc., 2018 WL 949205, at *4

(D. Ariz. Feb. 20, 2018) (choosing Arizona minimum

wage law over Pennsylvania’s based on contract). SkyWest’s argument asks the Court to cure with amputation a problem that arises only if one ignores all other,

readily available remedies. Indeed, plaintiffs in this

case already cured SkyWest’s problem by proposing to

apply only the law governing each plaintiff’s domicile

airport. The brute-force remedy of field preemption under the dormant commerce clause is thus unnecessary.

Finally, SkyWest hypothesizes that, if the Seventh

Circuit’s FLSA analysis stands, states will use it as an

excuse to enact minimum wage laws that favor their

own citizens. See Pet. 3-4. But that is the archetypical

violation of the Privileges and Immunities Clause. See,

e.g., Hicklin v. Orbeck, 437 U.S. 518, 524 (1978) (clause

prohibits “discrimination against nonresidents seeking

to ply their trade, practice their occupation, or pursue a

common calling within the State”). There is no reason

to expand the reach of an unwritten constitutional doctrine to deal with a problem for which the Framers already crafted a solution.

IV. Pike’s Dubious Foundation Also Recommends

Denying Certiorari.

The foregoing points at a final reason to deny certiorari. Several Justices of this Court have criticized the

dormant commerce clause in general, and Pike balancing in particular, as replacing written constitutional

provisions with an atextual and ill-suited grant of wideranging power to the judiciary. See, e.g., CTS Corp. v.

Dynamics Corp. of Am., 481 U.S. 69, 95 (1987) (Scalia,

J., concurring in part and concurring in the judgment)

(Pike balancing “inquiry is ill suited to the judicial function and should be undertaken rarely if at all”); Camps

Newfound/Owatonna Inc. v. Town of Harrison, 520

U.S. 564, 619 (1997) (Thomas, J., dissenting) (Pike “invites us, if not compels us, to function more as legislators than as judges.”); Wayfair, 138 S. Ct. at 2100-01

(Gorsuch, J., concurring) (“Whether and how much of

this can be squared with the text … or defended as misbranded products of federalism or antidiscrimination

imperatives flowing from Article IV’s Privileges and Immunities Clause are questions for another day.”). Indeed, even majorities of this Court have concluded that

Pike cannot be applied to cases where it appears applicable because of the judiciary’s limited competence. See

Davis, 553 U.S. at 353. Expanding the murky bounds

of Pike would run directly contrary to this trend.

Accordingly, if this Court grants certiorari, respondents will argue that the Seventh Circuit should be

affirmed because Pike’s balancing test should be jettisoned—either entirely, or at least in cases where protectionism is not at issue. That raises the likely possibility that this case will end in a fractured opinion that

does not resolve the questions presented. SkyWest presents only abstract, theoretical inquiries about how

dormant-commerce-clause analysis should work, and

disagreements among members of this Court about

basic premises (like whether the dormant commerce

clause exists) are particularly likely to confound such abstract queries. Thus, while granting here might allow

the Court to consider finally interring at least part of

Pike, it is more likely to result in no concrete result at all.

CONCLUSION