stage you don't have to decide what the statute ultimately means you have to decide whether i'm going to win you just have to decide that i have some chance reasonable chance i'm out of here because conceded that the lower court did not balance the mobile factors it is conceded at least in this the other three factors favor me and the government doesn't suit in those circumstances i don't even need a particularly good argument the merits i just need a substantial chance of doing right if i don't have a substantial chance of showing that this statute is ambiguous given that for seventy plus years the government itself read it the other way i just don't know whatever means at that point so so in order to be the case that way i guess you'd have to balance the position  can or does it apply in this context like we have we have some decisions from our court that say that even though an agency's interpretation has come a lot consequences that doesn't deny the applica this is far outside of chevron territory but we have some pretty recent ones that seem unequivocal about it competitive enterprise i mean that they're just saying that even though i never interpretation has criminal consequences well i twenty two that's not in direct criminal consequences that many civil things might have that you might play a little more booth with this is the definition of what it means to commit a serious felony and if we give the government the ability to move back unconstitutional for congress to delegate its criminal law making authority and then we have a constitutional claim but that didn't come up you know case we know for example that the supreme court is that at least in certain contests the agency can define something that then determines whether there's a criminal act that's been quoted to be says that i would like to distinguish two scenarios one is the definition of a crime and the other is some incidental administrative facts that if you don't comply with means you violated the definition of crime and here is a good example of that they say turn it in by by by a date certain or destroyed in this way by a date certain i don't dispute that they have some discretion and say well you pay a fee when you register when you have to turn it in of course they can define the sort of mechanics of implementation that is different i think than defining the baseline of what it is that is a crime if you violate all the mechanics of sculpture ultimately commit a crime like this where does the supreme court decision into the fall on that spectrum because that had to do with the definition of what's a controlled substance which direct has direct consequences and a chorus of reports that it was fine for an agency to do that definition i think in that instance the word controlled almost that's the question right i mean if the answer is a controlled substance illegal to sell a substance listed by x agency yeah well they're sure but the definition of wind that unconstitutional  delegation of authority that in the criminal context is severely more problematic then some is a dental things about i don't know if x drug or y drug quite meets the definition of a narcotic so go figure out versus the let's say the status of the securities laws right ten be five very very powerful and it is tied almost quite commonly in tandem civil and criminal enforcement and the criminal law simply just brings in the definition machine guns were in fact they had no they had no authority to do that either it didn't control any subsequent prosecution for possessing a bomb stock for example i think a court would have made an independent decision in the criminal case yes the fact that they said it if you made a lot of hard evidence there are a lot of arguments in this case about how well my gosh you're springing from a liability on us we've relied on your interpretations and i just seem somewhat inconsistent to me with your position that the agency interpretations on matters of criminal law can't carry but you still could prosecute me but that's not because the law means something means what they said one time or not the other the law what the lawyers and if it's ambiguous there was about what to do about that but i'm not suggesting that their interpretation was the law like turnitin by x date or y date which if any do it may well be their position to and and we'll explore that so you may be in agreement on that and i'm just in terms of the practical consequences of that understanding so that would mean that yes and you like and except this that i'm just saying if if we agree with the government's interpretation then the part of the rule that says that no bomb stock owner has been violating the law until march twenty sixth is just wrong so that everybody who has owned a bomb stock all along has been a felon absolutely that's your that's you buy into that if you agree that the statute says what they say it says then then yes they've been they would have known that they committed the acts that yes turn out to be coming right and then we got to have a stable debate about that you need to know if there's an automatic weapon even if it was one but you didn't know it and then if if it's an interpretive role then we have decisions that say that interpretive rules are final rules for purposes of any challenge well it's an interesting question whether they purport this to be a final rule if the answer is it's not a final rule but it's just some form of notice i think we would argue we still have standing based on a threat of prosecution and there's a great credible threat of prosecution says in three days we're coming after you if you don't turn in your gun box so whether or not it gets an a p a trial and or whether it's a challenge to the government's threatening to throw me in jail an interpretive rule but they say because it's has not come of it has lost credibility and etc cetera so if you're going to use the notice of common procedures i don't see how you say i'm going to use those procedures to get the upside but not to get the review ability i don't think you can have your cake and eat it too in that  way but if you decide that there's not a role in the it's inappropriate to challenge this like i said i think at that point that would be such an up ending of everyone's understanding of this case going forward including the district court judges understanding of this case that troubling for exult of them having changed positions if you give us that can i ask one question about that interpretation that's it said it that's at issue which is what's your understanding of why congress would have wanted to draw a distinction between a situation in which a what everybody agrees to a machine gun where an individual the little volitionally pulls the trigger and it results in multiple shots being fired and a situation in which an individual holes makes a motion to pull the trigger once and then because of recoil another f x the gun bumps up against the finger repeatedly and you have at the end of the day the same consequence but it's being activated in a way that you see distinct so i wonder is it never would have considered that issue at the time the young regionally acted by necking sixty eight when they amended it to take out the word semi automatic it seems to me that they at that moment understood that there were things like c that enable you to pull the trigger faster and there are lots of devices like you know i ask you about the merits as far as whether this will whether it's interpreted or not  in the lot decision takes more than one hole in the single or one handed unlocked position it still takes more than one pull it is only when that nine shooting hand is pushing forward that whether it shoots automatically or semi automatic it shoots more than one shot correct or right now my question is this i have seen and i'm sure all of us have this footage of terrorists with one hand shooting and automatic firing yes and my question is do you agree with me that w and there are more shots keep coming out that's literally the definition of an automatic weapon that's the stable definition of an automatic weapon that's the government's definition that's every encyclopedia of weaponry definition as if it can keep firing while the trigger hands it takes the second hand engaging in what is ultimately i mean it's rapid but it's this this this recall called the back and you say you don't have to sometimes all machine guns by definition require operation by one hand by one function of the trigger and i'm asking the question was just answered by one hand i guess there are slow operating military machine guns aside actually as a sort of push the bullets into while while someone else is firing at so those are more than one hand and their military machine guns well so that would violate a different part of this definition which would be mad i mean if you look at your definition of machine gun i'm saying as operate i thought you just answer that question by saying all machine guns can be operated with one hand i don't know that's factually true or way outside the record but i don't think i still think of an example but your hypothetical about somebody having to feed d m o into the gun in order for it to continue firing would violate my gatling gun again i'm going to  requires i'm just imagining it a weapon that requires the use of both hands this is important so what the second here is doing and in my in this scenario this case the second hand is causing the trigger to move back and forth the second h maintaining that you just have to keep the trigger depressed and both ok so you have to pour trigger i don't know that changes that but but that would you think that would be a machine i think it might be a machine that i think of him big was what i actually think is that that's an ambiguity in what the definition of a trigger i function i thought i heard you saying that they then have to push again and again and again it just happens very quickly so it's like they are pushing again and again or is it just constant pressure they should maintain pressure well i guess you're counteracting i win and if the question is do what does function of the trigger mean the trigger or dysfunctional trigger mean function of the shooter pulling the trigger i can see that pulling the trigger is a means of making the trigger  how did you make the trigger function but whether the trigger function and the fact that they say releasing a binary trigger is a separate function of that trigger i think you have when you sa repeated activation of the trigger mechanism that's necessarily someone and i guess my question is suppose and again i'm just making this up but suppose you have a situation in which you have a button that's pushed and what happens with the even if you subsume electric motor for the hey i'm still not a machine gun no one can debate whether they missed whether or not the button is now the trigger etc etc one can debate about that but what we do know is that's the last meaning be meaningful decision before congress then that is if you took the word semi automatically out and had a bunch of other stuff in where they solve problems so for that to be the extant ruling at the time whether or not you think it's a good ruling a bad ruling or perhaps got trigger can at least get me every duty that congress had that in front of it was looking at other idiot decisions expanded the statute to places that i thought it missed narrowed it in other places like this yet somehow the plain meaning of the statute is contrary to that extant ruling the congress thought was just fine i'm not saying you have to like that recording i'm not even saying that ruling at the end of the day might be the best ruling i'm just saying that it was plain enough to congress and the a t f at the time that yes if what you're doing even electrical even through a secondary source is causing the trigger to do this and we recognize that's the trigger as opposed to that it's not and there are plenty of ways they could look they could've written a lot of said any gun that shoots at a rate faster than that's not what they did they had a much more complicated problem front of them they did the best they could they use like everyone understood for several years folks will trigger means movement of the trigger and if that causes a problem there's a way of solving that and that way it's not the agency fire the produces hundreds of rounds per minute until the shooter releases his poll the weapon malfunctions or the ammunition is exhausted its continuous cycle fire after initial act of the shooter is precisely what congress has banned through the national firearms act and later legislation of what frame of analysis we use to figure this out and as i understand the brief that you filed now your understanding of the rule is that it's just an interpretive rule that's not a legislative rule so that would third column the following sentence appears anyone currently in possession of a bomb stock type device is not acting on lawfully unless they fail to relinquish or destroy their device after the effective date of this regulation so that says that you're not acting on lawfully until you continue to possess it after the effective date but the understanding in your brief as you were always acting unlawfully how do i square that we are mean certainly as a statutory matter we think that the proper interpretation the s fact that a t f has previously classified these devices has another i don't know maybe i'm talking about instructions i don't know what you mean by instructions i'm talking about what's in the rule the rule says someone currently in possession of a bomb stock is not acting unlawfully and then the rule in right at the beginning says the bomb struck devices covered by this one of all were not in existence prior to the effect of a the statute and therefore will be prohibited when this rule becomes effective in other words nothing on lawful going that that's not yes that would be that would have been easy to say and that's what i got from your brief is that this is an exercise of prosecutorial discretion that's just not what it says when you when the government says we're not going to prosecute something is an exercise of discretion you don't say it's not unlawful you say it's on lawful but we're not going to prosecute this says it's not unlawful i don't understand how to square that with what's in your grief it doesn't it just doesn't read as an unfortunate this is an exercise of force and discretion as a legislative rule that says this wasn't on lawful until the effective date at which point it becomes on lawful and why do i think that because i get to speak with the force of law and that's what i'm doing your honor even if you think that  particular language is inconsistent with other aspects of the rule which directs people to you know turn in or destroy their bomb stocks by the effective date of the rule it wouldn't really affect the scope of plaintiff's challenge here and every question of when we jumped at it would offend how it goes to analyze the validity of the rule because if it's a legislative rule that doesn't being of become effective until march twenty sixth because not unlawful now and that would mean you're claiming chevron and that's why the the rule is replete with references to chevron has an entire section that talks about how chevron applies and yet every says this is not a chevron tace i don't understand how to square that with a rule that says it's not unlawful until march twenty sixth even if you thought there was not properly an deference is necessary in this particular context so you might without it but what i what i'm trying to figure out is what the government thinks the rule did because the rule on its face acts talks every bit about it as a legislative already doing is interpreting the statute and by the way our interpretation becomes effective on march twenty sixth we're going to argue until then we'll pretend like we have different or potations again in this context where this interpretation certainly overrules prior classification letters the a t f issued to manufacturers and certainly puts the regulator public on notice that you know a device the a t f had previously erroneous the classified is not a machine gun is fact falls within this action and as you know as best understood there's every reason to provide not only contexts in which there is some sort of delegation of specific authority that has the following consequences and in those circumstances you know there may be situations where an agency's interpretation of a statute produces as my colleague was saying sort of follow on from the consequences but at firearm doesn't come within the coverage of a national firearms act because it's an antique and so there may be some degree of deference that's warranted in a situation like that there are you different types of questions even though there might be follow on criminal consequences from the determination of a fire you believe chevron different suppliers are not in a statute like this that has a direct criminal consequent knots not to this particular provision why not use a regular interpretation you have to write an opinion how would we say this situation is different from an awful lot of others where agency interpretations vigorously defended by the justice department have interact in the media criminal implications what would we say in opinion as to why this is think the point is that this is with this particular statute where the definition of machine gun and the actual possession of a machine gun is in fact a felony but the question is going to be what is the best reading of that statute not whether the chevron deference to that you there i don't know that that's true your honor we would have to have a somewhat different houses where there's a specific delegation to the attorney general can they be determination of that kind and also the types of consequences that flow from it might be very different depending on the type of weapon issue etc so the point is just that for this particular provision this is just the definition of it is illegal to possess this device what is this device congress has set out a definition and the docs the best reading of that definition what then we believe and then secondly what would you do if you have affirmatively you're saying if the consequent were telling you the consequence is that affirmative waiver by the government of chevron would mean that you lose your saying that you intend to chevron so that the government loses on this roll your honor again we don't believe any of this discussion is necessary i understand that well you might be along i know we are not i credit that like you know assuming that that's wrong yes i mean our position is in order think you can look at all appropriate sources including the rule and agencies description to determine that and whatever you agree with mr with your colleague on the other side that if there were a specific allegation let's suppose certainly there are cases coming both ways and hard questions on this issue but the bottom line here is if you know you can night and if there are cases coming both ways then why doesn't the government claims that round up because we think that the best understanding particularly in this specific cont deference is not appropriate and we're not asking for chevron deference how do you define the question is how you define the specific context in a way that doesn't sleep and other agency interpretations that have direct criminal implications and maybe in some other circumstances that might have sort of secondary follow on consequences but here you're talking about individuals who have now been told that they are subject to prosecution for possessing those devices and the question of whether or not those things qualify as machine guns on what kind of delegation you want congress to say that you can interpret these words you can interpret everywhere in this provision i'm not sure what this is supposed to be you're going to take an awful lot of stuff dow are i'm not certain that there's anything i don't know that there's the specific contours of all the different types of delegations that these cases have looked at the only question for our purposes has been consistently from the the provision that transfers the authority right from the minister of course the ministration of horsemen doesn't include interpreting the language i think certainly it includes interpreted language in some circumstances and i think the question is whether for this particular definition i have to say i don't understand what effect to date is that it only has to do with discretion let's just buy into your world view for for the moment is that what is that effective day practically doing because you can just decide that you're not going to force the statute on you're going to defer to foreign force when it's on march thirtieth if a first if a fifteenth what magically happens on march twenty sixth other than that the government under your reading is telling the world that's the date on which we're to start enforcing the statute is that all that's happening on march twenty sixth i think as a practical matter of course are individuals who are in possession of one so if so why are we going so fast in this litigation because why don't you just wait to enforce the statute until there's a decision because we think the best reading the statute bans these devices and these devices under that reading was reminding me what congress is instruction but why are we why it why do we why are we in an emergency situation where we have to do something at the world has to do something by march twenty sixth if all we're talking about is your exercise of prosecutorial discretion why not just say we'll start enforcing the statute when there's a decision because the mandate issues because congress has made a determination that machine i think as a as a theoretical matter the department could possibly put it off but that doesn't change the fact that for the regulated public what's going to matter is the notice it's been given the fact that we put out this notice to the public that on march twenty sixth we expect the individual who either destroyed  turned all of which makes it seem like a legislative role that's because you're right the rule to says that march twenty sixth of this is the magic they have all of which makes it sound awfully an awful lot like this is a legislative role because we're dictating when it becomes a lawful again the point is just that you know part of what the purpose of the who isn't part of the reason this went through notice and comment was to provide public notice and public opportunity to be aware of the department's interpretation and how it applies to bump stocks and so you know providing an effective date in the rule gives the public the notice that it needs to come into compliance with something even though as a legal matter these devices never should have been available to the public in the first place six and then i thought you said their job was to come here march twenty sixth was to continue to be the magical day it was their job to ask us to enjoin you to continue your prosecutorial discretion even though you haven't actually started a prosecution against anybody but to enjoying an announcement of process of temporary prosecutorial discretion i just wasn't sure that the justice department thought courts were supposed to do that you're going to certainly get the practical effect for these individuals is on the present knew about the power of the court that the continued i think you could issue an injunction that says that these particular individuals cannot be enforced against those particular visuals for the position there's a nation of your injection of a lot of ask for an injunction of the rule and that's what i'm asking you about you said they could come up and get a stay of the rule not of the statute i don't think anyone's and joining us right here and then you've said that really what they need to do is get a stay of march twenty practical matter the public interest is tied up with the success on the merits question here because as a as a practical matter if you are right about the statute congress does not want these devices in the possession of the public use of a felony to possess these devices and so you know if you think we to these devices but we think that that's true because congress has in fact grammies devices and we you know they've been used devices because the statutory terminology looks whether an individual can take one the bouncing back and forth of the trigger so the finger is not moving so it's a single action of the trigger finger it seems for sure and then what do we do with the fact of the constant pressure if you just explain to me white why their vision is incorrect in your view they seem to have a very peculiar focus on the specific mechanical operation of the hammer inside the gun but that's not at all what it's not a line of the statute drawn  shooter to start the process the question of what this year is doing on the front end of the gun and how that process continues goes to the definition of automatically and that's why we say you know they don't give any meaning to the term automatically from their standpoint the statutes you just say a single pole plus a push that triggers an automatic again because if you go to two different parts of the statute so what the definition of automatically does is it looks at whether this is a self regulating yourself acting mechanism going under conditions set forth so the shooter sets the conditions by initiating action there is one step at stake in the question is once you've taken the poll does the mechanism continue to function under the conditions set for it and the answer is absolutely yes with a bomb stop or use a can't afford pressure you don't have to pressure and then the pull of the trigger the pull of the trigger is the single function that's that's the function that's what courts have always looked at to determine what the single point in sugar is what is the first act the shooter does alyson uses the language set in motion the fire always operate one handed i mean in many circumstances there are devices that fire with one hand i mean i don't know that i can speak for the entire universe of devices that have been banned but that's not the question under the statute the question in the statute is do you take a single act in this case pulling the trigger and then does that initiate automatically more than one shot and so in order to give both of those you know parts of the statute meaning to understand that the initiation of the fire is the first thing the shooter does is what's relevant for that portion of the statute and again that's why devices like you know something that pulls in release of the trigger on the shooter's behalf are bandits because you're doing one act as the shooter and then that causes the trigger to be pulled and released over and over again even though you yourself are not pulling reason should i get run over i'm just trying to run trying to understand here is stock it's not a machine gun but if you are if you set the conditions properly by applying the correct pressure on the front and having them starting with they would say is i think i think i think the question is is that setting the conditions having to add another condition does that take you out of the plain language of the sas you it doesn't take you have the plain language automatically that's certainly true i mean that's like the that's the work that automatically is doing the letter have you looked at that video i mean the forward pressure is not being applied automatically that hand is on the barrel and why isn't this statutory construction is simple as it's a single function of the trigger it's whole plus it's not just whole it's pull plus and you all are saying it's just pole that's all you need a you need that in this we generally want to give all of these terms some distinct meaning and the point is that it is certainly true as you point out that an individual can take can make one whole and if they aren't putting any pressure on a gun qualifies as a single function of the trigger because individual pulls the trigger once and even though the you know the trigger mechanism is bouncing back and forward back and forth against the finger that's still qualifies as a single function of the trigger for purposes of the statute one question which is which goes to the point of whether you can win even if it's only a reasonable interpretation of the statute and not necessarily the anyone even if you don't want to win if it's only a reasonable definition of the  e and my question is this if the if it's just an interpretive rule all along which is your view then why didn't the government argue that there's no a p a action because another not a final action your honor i mean i think again from a practical standpoint we've treated this as you know these are individuals who have a belief that they're going to come we prosecuted a good years there that arises you know if you think there's no finally to see action  is you wait until the statues in force to get you and then we'll have that for you i think even in that context because we're talking about a criminal statute you would have individuals who could bring credible pre enforcement challenges to the provisions or you would or you would i think you would i mean you prosecution and so the only question we've been focused on i think throughout this litigation has been whether or not we provided the best reading in the statute because it's going to have consequences for individuals down the road now are there other arguments that potentially could have been raised maybe but i'm  form of action they brought here is is an a p a action and soon we're really getting the question basically at this point of whether or not the agency has provided the best interpretation now again if there are other grounds or the court has jurisdictional concerns then that's you know something that does the rule is will properly interpret the terms of the statute and we don't have any doubt that it does and certainly the interpretation plaintiffs have offered i mean i think they've been not prickly shy about saying what they want to do is open the door to a host of  being released by the trigger on the gun each time it's fired so those types of devices under their understanding of the statute would no longer be machine guns despite the fact that i think everyone recognizes those there  decide in two days that's asking too much and that in of itself is a huge public interest in putting a brake on this and letting us litigate is a reasonable matter even if you think those are serious argument ever asked for i  definition by the way it could contradict not only seven year history conflicts every other section of the statute that recognizes some of the medical records including the original testimony by the guy who put the single function the trigger in which i'll point of this were to protect what he called repeating michael they certainly at one point had made the argument that the original language of the statute and the identical language of the regulation were not enough to bomb then bump stocks which is why they felt the need to do more but to the extent of the legislative rule it only makes it worse because i think the ambiguity decide by tuesday what's that a fact of what you might rule with respect to the e p a type challenges on the whittaker things and the second body of arguments is this question of ratification so we can even reach our arguments and then there's the a statutory informed by constitutional challenges so the first thing and what we would suggest you do the first is you do not have to decide are part of this case by tuesday you can sever our people from their appeal if you decide you have to decide the rest of it by tuesday and the reason for that is we recognize although again the government hasn't even made this argument we recognize that in light of the ratification the rule will be effective as against the whittaker challenge because attorney general barr has issued a rule now will table for just a second with its legislative or interpretive that's one thing but the thing exists and he's signed it so i don't think we would get it preliminary injunction against that therefore you don't have to do something by tuesday so i just want to make got a favorable ruling from the district court the day before they filed their brief then they attempted this ratification maneuver so the i'm just telling you that that the things have changed i'm just trying to make it easier for you now i should say one other thing that you would have the option to be clear given the gratification to simply dismiss the appeal or to remand to the district court but under you were involved in a case called reptile keepers that is the answer for a well known proposition and that is once the preliminary injunction really comes from the district court if the district court's ruling is all based on we're just rejecting all your substantive claims you have jurisdiction over the whole case and it just kind of doesn't make sense to send us back to the district court to get a final judgment to come back to you again i'm just saying that while you have the whole case in front of you and it would make sense to decide the case you just don't have to do it on an emergency basis we're just we're very sensitive to the timing concerns of the court so the second thing is this question of ratification and the interaction intersection between the court ratification presidents and it's voluntary cessation precedents of the government says look this thing has been ratified and we say wait a second it's pretty commonly understood that the government can't just come along and just kind of say in response to litigation we're going to stop doing this thing and not have not prove that it can't occur and how did those two lines of cases interact so just to start with a voluntary cessation part if you were to ask the government how would you do this thing and make sure that you triggered the voluntary cessation doctrine so that the case could go forward what would you do you do two things one is you would insist that it's still your position of course the rather cation back and back and document by turny general bar says i really think we're right about this and then the government you know says absolutely we're defending the substance of the position that's filed briefs all over the country saying that they continue to maintain their position and that what's the second thing you would do is you would insist that you're going to keep doing it and the government says oh well she says since two thousand and three that we can do this attorney general barr insists that you know we're not stepping back from that but what you would do is you would say you're doing it just to end the litigation you' trying to make the case moot and the ratification doctor document says i see the litigation and it's in the wake of a favorable ruling from the district court and so what the government is transparently trying to do is to say we want to end the case but we're not saying we're not going to turn around and do close to the same thing again now there's a level of generality question and i say now they have to turn around and i have to wrestle the gun turn around and do the same thing you know that is definitely not the case so if you look at cases like that that's the difference between the voluntary cessation cases and the capable of repetition evading review cases so i could just talk about that for a tenth of a second and those cases say you have to prove it's going to happen again to you because it's not the defendant trying to  issue if you look at cases like friends of the earth versus laidlaw you had a case called error first as lynch the cases on voluntary suspicion don't require you to prove that it will happen specifically to you because this is what the supreme court has said is that when the government ceases doing the thing it is not article three mood then you have a remedial question of what do you want to do is it necessary for the courts to continue to resolve the case what's the you know what's the judicial interest and when what the courts understand is that the government or whoever the defendant is can't act to strip the court's power when we know it's not article three move as a result of voluntary cessation the court powers there and then there's the question of you know why what's the right result and we think this is gathered in a for sure or a voluntary cessation case because you not only have the government ceasing this one thing but it doesn't dispute that it did everything conceivable to make sure nobody could ever sue them so the attorney general you know has a lot of important policymaking responsibilities but does sign things but not acting attorney general whitaker no definitely determinations no immigration  institutionalized litigation there we say in our opening brief citing articles the government does not dispute that they have attempted to make it impossible for the judiciary to decide this question and so that's going to be at the heart of the concern the voluntary cessation doct why are we talking a voluntary sation why doesn't the fact that ratification that it's a merits question about whether you can win because on the merits it's been ratified so that that is what the argument always is involuntary cessation right and that is you are always getting what you want and they're saying in this case we've got what we want so i do what i need to answer your question in two ways if i could one is this is a very special kind of v cessation case in that we do have a retrospective concern that is sufficient under the court's appointments cause precedent so what happened is in this is alleged in the complaint and not to the acting attorney general whitaker did issue this rule and while the rule doesn't have an effective date in that has an effective date in the sense of the day that will prosecute the government's point is that it issued it ninety days ahead of time so people would start doing things they would start disposing of their bum stocks they would not purchase anymore and they would as a result not be able to sell them so when the rule was issued that day by we'll edge an improper official it did something to us so this is different from cases that only have a request for perspective relief now you say are you seeking damage no that is it is quite important that this is an appointment because k so if you look at cases like landry the supreme court and this report's writer decision with the supreme court has said is this is the one context because it's so easy for the government to change the decision maker to swap somebody out that we don't really look at the normal kinds of injuries so landry is a case where you have a one level of administrative decision and then there is sitting on top of that it did over review by another administrative actor and this court says that does not matter you have a right not to have a determination by an unconstitutionally appointed official and that's what happened here we are we for reasons related to s immunity and the availability of even nominal damages we do not have a damages request but it doesn't mean that we were subject to an unconstitutional official i mean put another way oh i don't understand what the what remedy would be afforded  how the declaration do anything for them i make them feel that it would it would just be a declaration that they were treated on constitutionally and as an understanding that normally when we talk about article three injuries we talk about something much more consequential in terms of either an affirmative injunction or money damages we do not do that in the appointments clause context it is a structural constitutional failure so to take the language example nothing happens to that person right there was an there were literally nothing because the din overview was undertaken by a superior official can just look at this the other end of the telescope for just one second or did they have to start the process over again well that was the the remedy so that probably doesn't apply right that money can't be afforded to your clients and this right there's absolutely nothing the court can give them other than  constitutional declaration at which point constitutional principles would seem to factor in as well well if you don't make the necessary constitutional rulings well it just depends on what we think unnecessary means there if you just want to get i mean this is where i would be there's nothing they could do about it but line the bird cage with the honor it in the cases where there are just that someone to see if the declaration we don't say if you have a constitutional claim that it's a you know if you want to declaration that it was unconstitutional we just won't give it to you because of constitutional law when it was normally what isn't there something that would change you i will say i did give you a slightly incorrect answer and that is there are multiple voluntary cessation cases that say we actually are doing something for the future that's perspective and that is we are making sure they won't do it again it's the burden on the defendant to engage who seizes the practice to it is a stringent burden the supreme court has said to prove that they won't do a fact of the same thing again in the level of the right level of generality here is that you will not have an acting attorney general who will issue regulations related to firearms and we are entitled to an injunction with respect to that so there is a prospect of the fact that you may say ordinarily we would think that that's you know too speculative but the voluntary suspicion i have maybe they just didn't read the complaint i didn't read it as a general argument i said look at it through the other end of the telescope we think it has to be the case given the significance of the legal question here that somebody somewhere has to be able to challenge the designation of the acting attorney general it's a humongous delivers a significant constitutional and statutory questions if somebody has to be able to do it i think we have to be able to do it the government can't avoid having the acting in a hurry general sign things that would give rise to a little town still nonetheless do incredibly important policymaking related things then when he does one thing have it ratified once they get a favorable ruling of the district court that is in the teeth of what voluntary cessation is about which is making sure that the it and does nothing i still think it would be true because the legal principle is really important if acting attorney general whitaker himself didn't do anything as they say on day one we soon ok he hasn't done anything yet right i still think you look at the same way because it's the for the the courts will utterly ignore the requirements of article three my point is this both the ratification cases and the voluntary cessation cases say the court is at this point making a remedial determination and that is a judgment about how important it is for the courts to pass on the question the question has to have been present in the first instance remember the voluntary association has to say we have an article three case there is undo dispute the government does not contend this case is article three mood the question is whether or not you should give us any form of remedy both the voluntary cessation cases and we think the ratification cases look at what the you know what the government the interests of the judiciary would be so can i one thing that i haven't talked about is kind of the relationship between those two lines of cases which tend to kind of run past each other a little bit the government thinks that its best case or at least its briefing says is the dueling case and julian is a case where the court did not reach the appointments last question when it determined there had been ratification but the big difference between this case and doolan is that the ratification occurred while the case was still in the administrative proceedings there was no voluntary cessation question voluntary suspicion is an article three move in a stock trend and whether you will give a remedy when the government during a court case in response to the claim stops what they were doing but the indolent that didn't happen doolan the agency changed if it the new official came into being it into the position before the case ever went to court the court has been very clear in cases like intercollegiate in describing landry that in all those other contexts it does decide the appointments question without allowing statements in the briefs that it did expect that people would begin doing things even if you were to determine today that this is an interpreter for it least represented itself as a legislative will at the time that i just think there's no that's  and the government expected people to begin doing things immediately it's true they haven't gone to jail for goodness but they certainly expected the rule to be operative at the time what they said they wouldn't do is actually you know begin prosecutions for ninety days but their view was people need to be able they were they were expected us to do things and the second thing is that the court has never in the voluntary cessation context looked at the question of it being too pre enforcement or premature that is to say the cases involving voluntary cessation do sometimes i think i just don't understand why there would be a distinction seek to get an injunction against something that is going to happen and a lot of the ratification cases are like that the way that the ratification cases and the voluntary cessation cases intersect each other is this what the courts have tended to do and i would look at two precedents here one is the city of houston case from this court and there is a conservation law foundation versus evans case from the first circuit what the courts have done is they have looked at the question of whether the agency is doing something as a one off or instead has an ongoing policy that's what matters to the court and that is if there isn't something that can be as you described as an ongoing policy a commitment to this practice then the courts are much more were and to say this is voluntary says ation we're going to adjudicate that claim if instead it's the agency just doing something one time and it gives you what you want then it tends to just look at this is a pure remedial question kind of you've gotten everything there's no other remedy we could give you but when the agency is kind of committed to doing this thing in its power to do the same thing in the future the courts as well there really is something to declare against  in history i think that it just depends on what the it is at that point it is the case that with respect to the question of whether the government has displayed under thirty three forty seven and eighty or the sub section b cases which are that the statute designates that has only happened twice it happened in with respect to the c f b and it happened with respect to us now the thirty three forty seven eighty things have been leapfrog over one person that's the issue that you say looks like that's the issue we're talking about now when we have a few different things that would raise the constitutional question and it would raise the statutory question as well so because i thought you had a distinct constitutional argument you can switch it and then informing the statutory construction stream it was taking an employee and making them a principle right so but we have to constitutional arguments we have the argument that under the supreme court's you cannot have someone who is not the equivalent of the first assistant in the absence of an exit in c and make them the acting official so that constitutional challenge with me i think of you know my basic point is when you're deciding whether to give us some sort of remedy you have to figure out is this gamesmanship and the government's just trying to avoid having this kind litigated in the just keep doing the same thing over and over again or was there just one problem that we had then a fight and they fix this one problem and therefore there's no need for the  think that's things and the ratification is that gamesmanship here and that is take the favorable ruling from the district court then once you know who's going to be here on appeal then you engage in the ratification but there's another form of gamesmanship we just  cannot link reality to the fact that the government went well out of its way to make sure that acting attorney general better didn't do anything else that could give rise to a legal claim my best example of that is in the d d c in front of judge mosse the government simultaneously government could possibly have done to make it less possible for the dishy area to decide this important question and when we do have an admitted article three controversy right here right now it cannot terminate the missionaries ability to decide the that all the voluntary i know this is just a fact the voluntary cessation cases friends of the earth city of muskeg say in terms when you have a complaint that is an article three controversy which was the day before the day before they filed the brief undoubtedly that's i mean we may be reduced to this point they are not when we saw the prospect that the government was going to engage in this ratification we looked at the court's precedents and we amended the complaint to make quite clear that we wanted and we were entitled  thirty three forty five does not apply when there is an office specific designation statute such as twenty eight u s c five away and the designated officials available to serve declares that five u s c thirty three forty five eighty three is unconstitutional insofar as it permits the president to designate an employee such as the chief of staff to act as an officer in violation of the appointments clause declares that five u s c thirty three forty five eighty three is unconstitutional insofar as it permits the president to bypass an available first assistant by designating a non senate confirmed officer was not the first assistant to act as a principal officer so let me try to disentangle and simplified others of the one hand he child his clients have injury that lets them get into court from the rule that the rule is going to injure them because they're gay i have to give up their bum socks that claim that injury is not even after the ratification there is still a rule and if the rules not set aside or are enforcing the of the statute is not set aside they are still unsure why is this right i do want let's assume that they actually comply with a lot of the wonderful law abiding people and so they turn everything in on the effective date or just turn it in or just write with the next day everything is still being the same the same thing you just sent them and yet they have nothing left haven't even challenge the bolivia the ratification on page twenty two of the reply brief they concede that the ratification was lawful and therefore they have no claim against the wall therefore that claim fails on the merits there is still a rule in i don't think it's right to be very good i don't actually think it would be moved because presumably they will still prevents them from buying new ones right so you know if they destroy the old ones that they are still injured going forward but so their challenge to the rule is the abstract and i think technically the district court probably partly our fault i just overlooked the fact that they asked for the injunction in the air that part of the injunction probably should have been dismissed for lack of standing rather merits but it's quite clear that they do not have standing to challenge the designation in the air because that's on the on that part of the american plane is that part of the american plane under the government's or from the government that it is that a challenge to mr that more in the air than that that it's a challenge to an official i think it's even more in the air is that i think their argument is any one of the type of mr weber i e if there is a designation of a nonstandard confirmed president in those circumstances the supreme court has recognized in cases like franklin and mississippi that you can sit in front of relief against the president for sufficient acts of this court recognized to say and swung versus clinton so those parts of their claim their free standing in here so i figure out whether this round of labels whether this type of action ever be labelled a voluntary yes i guess i would say it's not voluntary decision for two reasons one is the more fundamental one which i said a second ago which is again that the defendant the acting turn in general he did it with clear but unilateral he didn't do anything he didn't see stew with anything the reason he's no longer the acting attorney general is because the senate confirmed or the president appointed attorney general barr the other is in the air abstract claim the only person who can actually sue for that in terms of who has done some conduct that you would say is illegal would be the president and you or you could sue a future attorney general who di so the overarching point is that the government doesn't dispute that this is exactly what the voluntary association doctrine is concerned with if they can do this then they can seize any time and they can avoid the judiciary educating the slain ever so as to judge millette question to the rule and the acting attorney general would occur in to the question of whether you could make a designation like this when the rule is ratified the voluntary cessation cases say that challenge is not moot so we had standing with respect to the broader co had standing because of the rule originally the challenge matthew would occurs that this is the acting attorney general in the bigger picture then when the ballot we ask why don't we have that standing anymore it would the only reason would be because they ratified the rule and uniformly on our side your error if case evidence case out of the first circuit say when the agency has an ongoing policy which they do not deny then given the individual really does not in the case including in the context like ratification then the final thing is this question of who we sued several things this is the argument that you can never challenge a presidential designation because the president who does that that is the one who does that that's obviously wrong we did sue the united states is barr who ratified the rule not the president and we have that challenge that's entirely unilateral attorney general barr did that he was substituted into the case for matthew whitaker he is a defendant here i don't think there's any serious argument that we have valid claims and all i would impress on you is that if they can do this then this incredibly important issue will for ever evade review and that's what the doctors intended to