please be seated good afternoon everyone we have one case on calendar this afternoon sierra club versus donald trump nineteen dash one the six  and i know everyone has been instructed about their amounts of time so we are ready to begin whenever you are good afternoon your honor may please the court james burnham here on behalf of the united states the district court committed three fundamental errors in granting the limit ery injunction below each of these errors was clear and each was essential to the erroneous injunction the court issued the  st was that the court held that the bedrock zone of interest requirement does not apply in all to the implied cause of action at issue the nd was whether yes you're on interrupting but you're going into what you think are the errors what's my standard or review remedy it's the flipside of the preliminary injunction your honor so i would need to demonstrate a likelihood of success on the merits that we are likely to suffer irreparable injury absent a stay that the balance of the hardships favors the united states and that the public interest but also favor a stay was certainly not a matter of right even if europe or bullet injury might otherwise result is that well no i didn't suggest that it's not a matter of right no your honor it's something it's the flipside of the district court's preliminary injunction standard and further if in between the two parties is the supreme court legal or or is that just an abuse of discretion i think it would be an abuse of discretion in how the court weighed them i think it was legal error that the district court failed to weigh them at all and so winter versus n r d c tells us that the district court needs to determine that the plaintiffs are have more hardship than the other side and in this case the district court didn't really engage in that analysis at all and it was interesting to me counselor that you didn't argue that the plaintiffs lack standing at all as the reason so we argued that the plaintiffs like standing below we haven't in our same motion relied on that as a basis for granting a stay i think the better way of thinking about a similar issues is through the zone of interest require less zone of interest is not a standing requirement anymore well no i didn't mean to suggest that it is my point is just that the plaintiffs fall outside the zone of interest of the provision that they're invoking and so we are on your own failure to state a claim rather than standing we as part of it's part of the merits and i believe they have no i didn't i didn't say that your honor so i'm not conceding that they have standing but i'm not challenging standing for purposes of the stay motion at this point so do i have to think about it well yes of course the court has an independent obligation to assess article three jurisdiction and if your are concludes that there is no standing here then dismissal of the case would be appropriate which i think can the apartment of defense build this wall in any of the project areas if eight o five not available so in the money that has been allocated for the projects at issue is all eight thousand and five money i understand that can they build the wall if the eighty five funds are not available so i don't i don't believe they have a different appropriation available at this time to use for these projects and that i think that's which well what i'm really talking about is could d h s s build this wall without the d o d support under and eighty four not these projects no so the reason the d was sent a request by the reason i'm asking these questions is has a lot to do with redress ability does it not i'm sorry your honor i don't when we're talking about this aide or five fun not not the projects that are before the court right now so the projects that are before the court right now are told they will receive redress in this particular action if we sustain what th recorded if the court were to and yes if the court agrees that the eight thousand and five money is not available for these projects there will be no money for the projects or go the projects will not go forward or go i think the answer your question is yes so the traditional article freestanding kind of questions skin in the game results from the case those aren't being teed up have been argued by the government and do not appear to pose a problem now so again you're so in the district court we did argue that the  to come in and raise this claim separate from what i understand to be yours own avengers arguments that speak as well to whether they have a substantive claim were yes so i mean i think that the teeth of the zone of interest requirement of course is in a case where there is technically article three standing but the plaintiff despite having article three standing doesn't fall within the zone of interest of the provision the plaintiff is invoked trying to make sure we're kind of past the article free traditional questions to the zoning zone of interest type right yes judge clifton that's right so i mean guess without conceding anything i think from the courts analysis today from our perspective that the court doesn't need to address standing although of course it has an independent obligation if the court disagrees and the court can just move forward with the zone of interest test which i think is the really the key to the whole case seven what is the provision that you think we're looking at for purposes of those out of interest analysis it's section eight thousand and five dollars because that's the statutory provision that plane of seven vote but if this funding is not authorized by eight thousand and five isn't the problem  constitutional one not a statutory one no your honor so i think if you look at the supreme court's decision in dalton versus specter which is a five hundred and eleven dollars us for sixty two dollars the court was very clear that in cases like this that are just disputes about whether an executive officer has followed a statute has acted within the bounds of statutory authority or not constitutional cases so if i can also this isn't quite statutory authority we're talking a constitutional kind of challenge is more like a youngstown challenge but it's does the president have the authority to do what he did does the authority so in that case president truman said i have article two power to seize the steel mills that's what the case was about that's not this case so it would dolphin also says is that quote our cases do not support the profane use got out of youngstown by just naming some statute and say it you don't i mean you don't get out of it that just becomes a statutory case your honor so in that case the court would decide does this violate the statute or not if the plane if there is a proper plaintiff that can invoke the statute the court a look at what the statute says and decide what the executive officer but why should we interpret these plaintiffs as invoking the statute rather than invoking the constitution because they don't have a constitutional claim your honor the claim they have is a claim under section or they purport to have is a claim under section eight thousand and five dollars but also it seems like they're also saying that they have a claim that the executive branch is stealing congress is appropriation authority but you could but that's true of every statutory claim against an executive branch official they all every statute has a constitutional underlay and so if the guy verman prosecute someone without a criminal statute on point then that's a violation of bi cameral isn't present because the executive branch doesn't have legal authority to initiate the prosecution so if you look at dalton i mean really dalton could not have been more clear about this they said quote our cases do not support the proposition that every action by the president or by another executive official in excess of his statutory authority is ipso facto in violation of the constitution and so i just i think it's really clear that this is a statutory case so if we don't have a clear two different statutory claims one could bring one is directly under the statute where one could be gifted the opportunity to bring this is a private cause of the action the nd is that they could bring it under the a p a right so your honor i'm not making an argument right now that they don't have a cause of action i don't i don't dispute for purposes of the state argument that they have a cause of action what i'm saying is that are you saying they have a legal cause no no please if i could what i'm saying your honor is that they haven't they could even if you assume they have an implied cause of action they still have to satisfy the zone of interest requirement which is part of the merits analysis so i guess my worry about that is this it seems to me that if there is a constitutional claim the zone of interest that might be a black would be different than it would be under lexmark with a statutory claim or that it would be under the a p a and it or that it would be under an equitable claim and therefore i'm trying to get my understanding right so the zone of interest requirement is not keyed to the hatcher argue no judge if i could if i could just answer the question the tone of we would like you to answer the questions you know please i'm sorry this is one of his requirement keys to the substantive protection that the plaintiff is invoking so i understand so the a p a and equity jurisdiction are vehicles to get into court but they don't provide the claim and the claim would be an eight thousand and five dollars now let's say you disagree with us about that and think it's actually a constitutional claim i think that would be contrary to dalton but if you disagree with that i think it doesn't make a difference because the appropriations clause exists to protect the appropriations process and here the plaintiffs are invoking the statutory limits in section eight thousand and five so even if the court were to conceive of that as a constitutional claim the plaintiffs would still have to show that they fall within the limits of the relevant protections there invoking do you think there's anyone who can bring this claim i think there's an exceedingly small number of people your honor so would that be it's hard for me to say i think one possibility would be someone who was entitle to the money that was transferred away interests well then i think that would just defeat that i mean that would read the zone of interest out altogether i mean or what i think the administration might be doing is is read eight hundred and five thousand and five out all together by basically saying we can only bring a challenge under eight below five and nobody can bring a challenge under eight double five so we're unchallengeable well no your honor so it's of section eight thousand and five dollars plus just about to take one step back and what this provision is this is not part of the us code it's not a you know a provision that last forever it's a one year only provision that congress includes in d o d s annual budget and what the provision did as congress explained when they enacted it was give congress more control over the appropriations probably put this in a different context or  seems to me this case can at least as well be characterized as a challenge to something beyond the administration's authority and the administration points to eight thousand and five as the justification that is the act by congress which appropriates funds and permits the president to do this so eight thousand and five isn't the cause of action it's a defense to the cause of action which suggests the zone of interest we should be looking at is the initial challenge not the defense so your honor i think i think the way i would think about it is that playing this abroad implied action under eight thousand and five i don't think so but i really don't ok so that if the court disagrees with that and thinks that they've brought in a constitutional challenge that's informed by the contours of eight thousand and five or a one thousand and five is an act of congress if one thousand i've said the administration can do what it wants to do cases over you went on the merits but the issue was whether eight thousand five says that i don't see that as a cause of action i don't see anything in one thousand and five that creates a cause of action where it's a defense to a cause of action and i don't know if that's the case then how does own interests get involved because the pla that circumstance would be invoking something antecedent to eight thousand and five dollars which i think would be the appropriations clause and this court's cases in the supreme court's cases are very clear that the zone of interest or a point requirement applies to constitutional claims too so if you look there any case that says that after lexmark court there explained that the question is whether the plaintiff is in the quote zone protected or regulated by the statute or constitutional guarantee in question but it was that was i mean is that just is there is there actually a constitutional question well that the court i mean it's the court's explaining how the zone of interest requirement works so no i don't think it was essential to the holding of ray charles i'm just saying that in the th circuit decision subsequent to the trump versus hawaii case from the supreme court doesn't seem to apply is on of interest test  understood your your way of looking at the not i'm not expert on that case but my understanding is that there the claim was that their relatives were being discriminated against on the basis of their religion and so the court said that they could bring that claim but that the injury that the court talked about here have a procedural injury they participated in the legislative process they won it through the legislative process congress agreed with them didn't want this funding to be spent on a wall and now the president is trying to spend it anyway so why is that not within the zone of interest of the appropriations cause because i don't think congress included section eight thousand and five to protect people lobbying congress about a psychic when this is five is the defense so the question is you have a cause of action under the appropriations clause and the zone of interest would seem to include people who try to participate in the normal legislative process so i don't think so your honor because i don't think people in that circumstance have a stake in the budget but maybe if the court doesn't think well they have a stake even knowledge at least for the purposes of this proceeding we don't have an article three standing kind of ratified and gave the courts equity jurisdiction the only other point i would make is that the jurisdiction is based on tradition and history there is no tradition in history anywhere of people outside the zone of interest of a provision bringing claims if i could just quickly because i only have a few minutes left explain i'd like to a different question of course so i'm say congress amended it five to say expressly that money could not be transferred to be used for a wall right and then the department of defense tried to transfer it anyway to be used for a wall would anyone have standing then and be in a zone of interest i'm not sure whether anyone would have standing i think in that case you know i mean that would be illegal and so i don't think that's something that we would do it's not evident to me who would have standing to challenge it i'm sure it's not standing who would be within the zone of interest of that provision so if no one would be in the zone of interest then you're then then you're saying even when something is that you would admit is that explicit it's still cannot be enforced there's just no way to enforce whether the executive is spending money according to congress's appropriations you can be enforced your honor i mean for one thing congress is taking lots of actions right now to retaliate not retaliate so one word but to penalize d o d for doing something that congress was another one of my question so many times in your brief you say congress has other tools but you never say what they are so can you explain what you think congress has other tools and their regions powers so congress could to fund the entire defense department if it wanted to and sorry now or in the next cycle will the next night i mean summer and it did so against the backdrop of everything else and so if we read eight thousand and five as not allowing this then when we come back around right i mean it doesn't allow that so let's put that aside for a nd but what i'm wondering is if if congress believes that this money is being spent contrary to what congress authorized what are the tools that you were referring to in your brief that congress can use to stop the spending that you're trying to do why i think congress could pass something today that just says no more spending for the wall and what if you continued to try to do it well that would be stops it so among other things it's a federal crime under the any deficiency to spend money that has not been brought really appropriated and so in a case like that where there's no colorable legal argument that we have the authority to spend every official down the chain spending the money would be committing a crime  concludes that eight thousand and five doesn't apply are you telling me that all the defense in this case are lined up for criminal prosecution but it has to be a knowing violation your honor so in this case i think because the i don't know which lawyers but the lawyers that said this is a lawful apple somebody must  not realistic to think that a bunch of federal officials public servants are going to be committing knowing federal crimes if i could just very quickly on section eight thousand and five i only have nine seconds left which before i save it for a battle or let me use the nine seconds i post something to both of you and i don't expect an answer now a lot of issues are coming up we're throwing things at you we should in order so forth and asked both sides to consider and give us a response as to whether you think there are issues for which we were should receive supplemental briefing we don't want to take a lot of additional time but we have been hitting upon a lot of things quickly so when you come back yes you would like to hear your thoughts on the matter will be interested in hearing the thoughts from the plane who says well they think you are good afternoon your honor of the infer plan to sierra club in southern border communities coalition your honour's of what the government says sounds extreme it's because it's an extreme position the government is saying basically that the e in the house of representatives for months they said the congress can do several things it can it can be told what they do and then it can override the president's veto they can amend the appropriation laws to expressly restrict the transfer of the spending of the funds and if they don't do it then there's a there's all kinds of things that are going to happen it can express we exercise discretion and expand the opportunity for the recovery by a private party harmed by the administration's activities why aren't these things that are alternative to a constitutional claims well meant i think st of all when the remedy is congress can pass a new law that hardly seems to be the remedy for an existing statutory violation so here's what happened right we had an appropriations process in which congress sat considered whether a wall was necessary to combat drug trafficking and asserted migration issues decided not to build it passed a law which the president signed if the president then turns around and violates the law the answer is not will congress just get him to sign something else or alternatively have to override a presidential veto in order to get their original law enforced and that's simply not how our system works when you have the executive acting lawlessly the presumptions are all exactly the opposite the presumption but the problem comes with in that we're really talking in the macro or in the micro you agree that the d h s s could legally build a wall  congress has control of the purse is not just that it gets to give away taxpayer money but they get so attached strings to that money and they get to say what is the priority how much will be spent where will it be spent and the executive is supposed to obey those restrictions and when the executive steps out of those restrictions people who are harmed by that come to court well so at that point given that there was to me two billion five hundred and fifteen million eight hundred and eighty seven thousand dollars  construction and prove man's and of those funds relevant here there's a one hundred and forty five million six hundred and fifty six thousand which were not allocated to anything in the d h s use that money to build these border buildings barriers again no your honor and the reason is because of the bedrock appropriations principles that congress legislates against and so this was brief and much of what just a minute what bedrock principles well your honor the really key one i think that to focus on do i find this bedrock principle you can find it discussed in nevada vs the partment of energy which is cited in our brief but really where you can find it is in hundreds of years worth of comptroller general decisions because that is not binding on this court but both this court and others have constantly recognized that the best way to understand the g a o has an expert assessment of the way in which congress appropriates funds and the executive is permitted to spend them so there is that a g a o red book that i think that they found inside as well but basically when you want to look at permissible expenditure of taxpayer money you look to the hundreds of years of law that say that when congress sets a specific appropriation level for a for an item or a project or an activity that is all that congress intends for that to for that activity but again we don't that's not a necessarily an immovable limit because the whole point of some of the national emergency authority and five is to recognize some time circumstances arise that had not been anticipated and so congress has given the administration authority to do some moving around albeit their conditions attached to it but i'm not sure it's as simple as of able to say you know congress didn't know this money so that's the end of the story your honor i would certainly agree that it's not that it's not always a very simple question here we actually believe it is a very simple question because rarely do you have such a public and just i mean we had the longest government shutdown in our nation's history specifically over the government going back and forth about the wall and then you have as a government employee i'm only too well aware i'm slightly on or we're absolutely aware about the shutdown but what we're not aware of is whether congress actually said any place that the d o d could not transfer these funds and eighty four so i think again that the background principle is the executive can't spend a penny unless congress authorizes i understand that so what happens is the executive has to identify an authority that lets it aggrandize a particular pot of money so here they did well fire i mean it didn't it didn't your honor because if it identified eight thousand and five but it doesn't actually meet at all with the terms of eight thousand and five then it didn't identify such a fund and so eight thousand and five congress told the department of defense we're not giving you authority to just freely redo your budget it's not as if the congress couldn't do that if they wanted to they could have passed on didn't do anything with the eight thousand and five in any of these appropriations it wasn't even in front of them  congress didn't say you can't move money out of eight thousand and five all congress said is under another budget just budget you can only have so much money well what congress did and the reason we're even talking at eight thousand and five  and i just want to stress our case involves many more questions and eighty million fifty eight thousand and five is one piece of a whole but that's all it's in front of us right it's all this in front of you your honor because the district court found that it was so manifestly unauthorized by two thousand and five that it didn't need to  suggested problems with the other thirty i understand so well then we can get into two thousand eight hundred and eight and all of those others but the problem is i've only got eighty million twenty eight thousand and five in front of me and what i've got is congress never saying you congress and when this based on it under morsi not denied by congress is the thing we're really talking about here you're saying that just an overall we're not allowing you to do this under the v a just budget that that means you cannot transfer funds out of the military budget well your honor we're bound by the statutory language try and go through and i'm trying to figure out why it's a denial i think you started to talk about unforeseen well we can certainly i mean the unforeseen i think it's equally flawed as military requirement because w if nobody's ever defined a higher priority items at that point we're really trying to determine whether these are higher priority items nobody's ever defined them before do  deference to the agency as to what that is your honor maybe but what i would say is that well what i'm just trying to say and file some deference to the agency which i really think this is maybe a claim but if i also some deference to the agency and nobody's giving them that deference in making that determination then how in the heaven's name can i say that what happened here was a violation of any thing well quite simply hon because no part of the district court decision turns on the words higher priority it turns on denied well then it doesn't mean it's a mark of the denied is a part of the higher priority it's a higher priority items and they have to meet three categories and so therefore  doing is one's trying to think what's a higher priority and one's determining what that higher priority is by looking at the statutory language under the higher priority and again it seems to me that i'm nd guessing the agency charge to determine what is best for the national interest your honor again if we were challenging a higher priority that might have some teeth to it but we're told that that right what does the what does the language you have in this statute modify it modifies items of higher priority it says for no event for an item that has been denied by congress not a higher priority not lower priority an item that has been denied and this court is manifestly capable of interpreting the word denied i think the government's idea is again untethered to the statutory limit essentially which doesn't say denied to the department of defense as regarding a specific budget line it says item denied well here let me let me go one further who determines whether a particular circumstance or requirement is actually unforeseen your honor again this court determines that because the client because why is that i shouldn't give deference to the agency and your honor you can give some deference to the agency for unforeseen but you also have a plain record here in which the way in which the administration presents a budget requests one year before invoking section that section eight thousand and five saying a wall is needed to combat the scourge of drugs coming through the southern border congress considered that denied it and then the agency said well actually what was unforeseen is that you would deny it and so this court is called upon to say did congress plausibly when trying to respect the agency says very good if you put the whole question in your vernacular if in fact one is suggesting that the h s budget is the budget and the military budget is a part of the whole and so therefore the military budget can't be switched in order to help to eighty four simply because the d h s budget is the way it was then one can go with where you're going but if in fact i suggest that each budget is different and th nobody suggested that the military should not be able to transfer the funds in this particular account around in their own budget then there's no violation and there's no problem and it is we just say denied because in our view and i don't but your arguments all go to the da just denial it has nothing to do with the denial of the of the of the military that's why i'm trying to question you about  this i hear that your honor and i pod as my answer is unsatisfying but but again just look into the statutory text the statute says denied the government makes a request to congress the request is denied that to us is what the statute says the government is not pointed to any language in the statute that says deny to a particular agency tonight as to a subcomponent of the wall unforeseen by the agency that congress would in fact and i funds to another agency these are all sort of glosses that they're adding  order to narrow the statute i think what's incumbent in this court's analysis is to say what was congress trying to do because both sides agree congress was trying to limit the defense department for messing around with congress's appropriations decisions what's happening quotes is congress did this so as to enforce the limitations its power to limit the defense department's ability to riyadh to the budget things that congress had denied if i accept the government's interpretation of section eight  correct aren't you asking me to decide a political question i don't believe so your honor and i think i well i think both both this could be asking me to supplant a policy decision of the political if i'm going to use my policy decision to supplant the policy decision of political branches it's a political question your honor if we were asking you for a policy decision i would agree with you but i think if i understood your question correctly  you were asking if you accept the government's view of section eight thousand and five which is to say you accept that there are transferring funds for something that was not denied by contract by congress and was unforeseen right at that point we would be asking you well would you nonetheless reassess the policy for us at that point what you would have done was reached the merits because of course a political question is antecedent to the merits of it's a question about this court's jurisdiction i don't think anyone and i think if there were a chance that this court didn't have jurisdiction over the question the government would have raised it and would have taken you up on your offer and said you know this court doesn't have jurisdiction i think if at the end of the day you agree with the government and five honestly this is the beginning of the story of the amount of unlawful conduct that's happening here so then we move on to section two  example and the way in which congress did not delegate to the secretary of defense an independent authority to spend two billion five hundred million dollars on a wall or not we don't have that for us you certainly don't your honor though of course you can affirm the injunction based on any grounds supported by the record i do think once again judge clifton as you asked about whether supplementary briefing would be appropriate i do think to the extent that your honour's are persuaded by the government's eight thousand and five argument given how many other violations were placed at issue in the case and given the district court's strong suggestion that some of those were viable i think it would it would be appropriate for this court to consider them because the government's alternative is this you put in an emergency stay right now they obligate the funds at which point this court loses any jurisdiction over them and they just start building the wall and causing a reparable harm given how many viable issues are in the case why would we lose jurisdiction over the funds well you would lose your addiction over the claims of construction but you'd never be able to get those funds back to the treasury talk about one of the issues and again it's not our injury it's an injury to all taxpayers is the fact that i don't know you want to use taxpayer because taxpayer standing is it's not our injury your honor we're not in court about this what i'm saying is there is a public interest you have a don't you have a process injury based on your participation in the legislative process that would be like have an injury from the violation of the appropriations cause we think it we think yeah your honor we think its roots would be in the appropriations cause we think we think our participation in the legislative process is ample demonstration of the fact that we are natural challengers of congress of the executive disregarding the appropriations process but so that aspect of your injury might not be before us  anymore at once the money is gone is that what you're just getting at no your honor we think that aspect of our injury would remain because again the appropriations clause protects against also the unlawful spending of the money and so our injury would be none the less when that money was spent to construct the wall fear i've sort of let us down the wrong path and a close that door and and because your time is is limited let me pose something else to you not unrelated i've described eight year is five as a defense it's not a new provision you've talked about how congress in this year limited or or declined to do grant requests to spend or appropriate money for spending more directly but eight and five sits there as it is apparently spent sitting there for years and is included in the appropriations act even as there is concern and as the president is saying things that suggest that he's going to do what he wants to do anyway it's sort of like the national emergency act was passed at a time when congress thought it could pull back the declaration only it turns out the supreme court later on no legislative veto and congress amended the national emergency act just as  it eight thousand and five even in the context of knowing that the administration may be inclined to pull forward so i sit here and i'm not sure i look at eight thousand and five and understand how there are limitations that that you think congress put in place when in fact it's also in acting eight thousand and five so i think there's two pieces of the answer the question on are st is and the government makes a lot of the fact that no one has ever brought in eight thousand and five claim before that's because this is the st time in history where the government has submitted its eight thousand and five year program reprogramming requests to the committees as a one thousand and five says it should and said we will disregard your judgment about this this one has recalled gentleman's agreement we gently so no honor we're not going to these days you know and we're not arguing if there is an enforceable you know committee requirement but put in every previous time then congress could have written him something it could have and it didn't and it's just going to extraordinary what's happening is here so the congress said you can't use it if we deny you funds for the most recent appropriations bill you know he had never done this before no one ever thought that the o t would really try to make a go of doing something in the teeth of the toyota has public statements from the administration suggesting that we're going to get it done one way or the other so the opportunity was there and congress did not exercise the opportunity so st of all again your honor i think anticipating illegality on the part of the executive branch is not is not really all i want it's got your answer would be they looked at the statute they thought unforeseen authorize it because it was denied and it's not unforeseen and i think the fact that we can talk about it being foreseen by congress in when it enacted the eight thousand and five and yet at the same time somehow not foreseen by the defendants that they would use it in this way is perverse the idea that congress for saw it that the defendants couldn't i mean it's a very strange reading of what unforeseen means the change a little bit if i don't find that you have a legal claim you have a claim your honor you can certainly construe these claims as a p a claims if that is all in fact you argue that in the distant or did you not yes or no we think that this record got it right we think these are classic alter of yours claims those i understand but in order to get claim there's a few reasons your honor people bring a p a claims because they can get a whole expanded scope of review under the a p a you can get are betraying bush is what you can review is it whether you can bring the claim i mean why would we give you a constitutional claim and jump to analyzing the constitution when we could just do it under the a b a and it be easy done so i think this one clarifying point is we're not saying infer a new cause of action to the constitution the equitable remedy whether you're inferring a new or whether you're just bringing back an old to get to the constitutional claim you've got to have no other claim and i don't find why this won't be an a p a claim so especially when you allege it to the district court you know why do we have to jump to a constitutional claim to get there you're not i don't think you have to jump to constitutional claim that the way in which ultra vires is described in dames and more most recently but in other cases in youngstown for example is the executive doesn't have authority to act where it lacks statutory and constitutional authority in a just a minute if you're going to go there what are you going to respond to the government when they talk start talking about the case of  what the government is arguing the government's arguing if the only thing you've got is that the government didn't follow the statute then we're not going to be talking about ultra vires we're not going to be dark about constitutional claims we're going to be talking about that statutory claim we say the statute doesn't authorize the government's conduct and because we say that we if so facto have a separation of powers claim and what the government the minute that's exactly what galt was trying to eliminate dog was saying we don't need to get to the constitutional claim we've got other kinds of claims that can be brought and that's what ought to be brought and that's what ellen says and that's why i'm saying if you don't have a statutory claim maybe you've got an a p a claim maybe the interpretation of the statute that we haven't front of us we're talking about how that interpretation is to be done we're going to give it some deference i don't know whether we're going to get to chevron but we might give it something less i mean i'm just trying to say that the district court ever think about all of that did the district court think about the appropriate level of deference to supply i get and i think your honor that in that instance they didn't i don't i need to to be an reason to be unforeseen military requirements and that congress would have intended its own denial of funds to the administration to be cabin by agency when when evaluating the the government's unified multi agency effort to circumvent  funding restriction we agree with that conclusion we don't think it requires a reassessment of of whether that is a reasonable interpretation we submit that it is not one but but if you'll permit me i realize i'm over i just want to if i may really clearly lay out what our position is on a p a versus ultra vires again we don't think and we're happy to brief him on dalton that the court on did hundreds of years of traditional equitable ultra view as review we're not asking for this court to jump to the constitutional question what we're saying is the government is spending money that it's not authorized to spend the government as this court has has at least suggested during the argument is raising a one thousand and five dollars as a defense we're not saying we have an a p a cause of action that arises under eight thousand  all that said as we told both the district court and this court if you disagree with us on that there is still a presumption that the executives actions are reviewable by a court and congress wanted its prohibitions reviewed and the way in which it did that when it's not altered here as is or as a constitutional claim if i answer yes will you be mad because  that's for sure i'm sorry but i just think that that is the case if you look at the classical triggers cases if you look at again james and more would be the most recent supreme court one but before that a youngstown they look together they don't say does this arise under say  your th amendment under the constitution or does youngstown to rise under the president's war powers or that that's not how it's looked at with the present with the plaintiff comes in on an ultra vires claim and says i'm being wronged by the executive in a way that the executive has no power to wrong me and the court says well it's a simple question does executive have the power or not that's the essence of an ultra vires claim there are also constitutional claims and we did raise those as well so we did say they are violating the appropriations clause and that means you know the court would need to say can you bring in appropriations clause claim we view that as a separate type of claim then the author of yours claim and that's again why the district court was correct in not reaching the appropriations clause claim even though it was looking at alter of yours because what it said was plaintiffs have said they have no power to build the wall with these with these funds they're taking from military personnel accounts i'm not going to reach the question of whether what they're doing violates the appropriations clause or the presentment clause because it's so clear that the statute doesn't authorize that and once the statute doesn't authorize it then the executive is acting without constitutional authority because they're either in the appropriations realm or the president realm or some constitutional realm right so i'm not sure i just have trouble understanding the difference between alter vere's claim at that point and appropriations clause claim at that point yeah i think maybe the cleanest illustration is armstrong so armstrong talks about violation of the medicaid act and the supreme court walks through three different possibilities for how that claim can be understood option one but it uses sound of all in the st and the rd and i just don't understand that at all yeah that's fair and i think i think there are many ways in which they merge ultimately and here too because we're talking appropriations which is such a  context there's a way in which the statute and the clause sort of collapse into them into each other because there is no free standing authority of the executive has except for what's been appropriated so the statute and the appropriations clause do you merge and i reckon it's also the t raditional sort of equitable remedy it's difficult to disentangle going to me what the court does there is it just marches through and it says option one it's a constitutional cause of action under the supremacy clause and the court says no unlike many other good afternoon your honors may please the court my name is lee sherman and represent the state of california and speaking today on behalf of the other miki states the states have a unique interest in these proceedings not least of which because you mexico's relief presently is dependent upon the relief that the district court granted to the organization plaintiffs on the motion for planaria injunction interesting that you should make that argument because you really only wanted to make it so we really  we can only look at the interests of the plaintiffs in front of us and we would disagree with that your honor how do we if you're only filing in a brave take into consideration your particular interests sure your honor so under the standard for granting for whether to grant a stay pending appeal one of the factors is other parties interested in the proceeding were valid claims a rd factor well it is one of the four we think that the struck one of the strongest factors is the likelihood of success well i understand but we can't weigh your interests in the likelihood of success we can only way of in the rd factor is that what you're doing is yes your honor that at that with respect to that factor you it is program the court should consider the state's interest being that the states are in the underlying proceeding and another reason it and the state's interest in new mexico's interest would be harmed undeniably if a if this if the state requests for granted in addition to which the equal principles point towards the ninety nine states motion in light of the expedited briefing schedule that is currently in place in the district court in which the parties are free think as we speak the motion for summary judgment that is going to be decide decided within the next ten days but the reality is that seeking review from this court is likely to mean i expect this court's going to receive an application from one or more parties and so what we've really tried to do is recognize the fact that the clock is ticking to expedite things i don't fault the states for electing to hold back in and appear only as a but the fact that there's a whole array of other issues out there that my get raised i don't think that's something that should deter us from doing what we think we have to do in the case in front of us well sure your honor the point being is that there's going to be a more fulsome record that's going to be coming presumably someone to peel's that bill that record will be coming to this the court shortly so to grant the extraordinary remedy that the clock the gov the that has been offered up and the motion for stay suggests that ok maybe the district court comes out with a decision you're talking about briefing being completed is there a hearing date yet the court the district court said that he will grant a he will he will say if a hearing is necessary mccurry only there is no hearing contemplation what's the deadline for the convenience it's a monday it's an easy date so we're probably talking about by the end of july or beginning of august at best for review and according to what the administration has told us that's going to be too late so i  don't really have difficulty to the extent you're trying to suggest to us just sit back let the district court proceed nothing to see here i can't get onto that train it seems to me that this is by a good a time as any to take up the issues also said that if you were to adopt a finance interpretation there would be a likely separation of powers violation and that is something that is for the province of this court to decide there's no deference to the agency to determine whether it's whether it is acting in a with our constitution if in fact it's a claim why well st of all i mean my bravo ms i don't find any statutory claim here at all there was no right given to anybody to bring some are and some action  relates to this particular statute so if you're going to come in at all i'm going to look for whatever else you go to come with that's why i came with the a p a claim and frankly you suggest and that's what i that's why  deference of all based on well i could either do our but i don't think that would be appropriate or i could move one up or i could go clear to everyone it seems to me nobody's giving any deference in this particular situation well there's one that we would point out that you didn't mention that is that that the agency can act contrary to the constitution and that is a part of the play is that again something that the agency gives st right that it is that again something that i have to give them difference as to whether it is a part of the constitution we disagree with that you're i understand the that the province of the that's where the province of the court is to decide constitutional questions the agency has no expertise and whether and whether their interpretation is consistent with the content is that because chevron is about statutes that the agency is implementing and you're saying this constitutional provision is really about the constitution and it is a case that says that this probably would be happy to provide supplemental briefing on that point but there is case law to that point that that that where we're talking about stats if there is deference and we're not saying that there is particular because there's no rules making authority that the statutes provide but there is deference that would be as to what the statute says but it would not be as to what if you're relying on this provision of the a p a about then at that point i've either got to give deference to the agency in making that determination or i've got to make that determination my fill in the st part of the whole is what i can do that's why i'm asking questions sure well st of all again we would say that there if there is any difference if it were at seven sub zero because there is no rule making authority but even in addition to that ambiguous person in terms needs to be read to avoid violating the going to these are the constitutional questions really quickly we want to underscore that the that in that an implicit limitation it set by congress is sufficient to to prevent the administration from acting beyond that and that in the united states in the column where congress has addressed the subject matter and post conditions and when the agency can expend funds the clear implication is that when the conditions are not satisfied then the agency cannot expend funds and that goes to supposed to make the judgment as to whether actually read it once a higher priority item well that is not a provision that that has come up in the in the  share who is supposed to whose judgment is it as to what's a higher priority and congress has written a statute that doesn't clearly assign to anyone who whose judgment applies so we have higher priority  which kind of screams out for a a policy or discretionary or some kind of substantive expertise judgment so who's supposed to decide if it's a higher priority i would do a better job of answering your question then in that instance the also the d o d would have to satisfy the constitutional requirements which is not to act in context let me let me let me to kind of suggest everybody else has had to work overtime i'm sure the state of california will pay extra for a couple of minutes so he won't do priority and that sort of gets to my concern because somebody is supposed to make that judgment now that's not what you have based the current challenge on but i look at the statute which is ben the not part of the code but reenacted year after year for a long time and what do we do with the fact that the congress is not elected to specify who makes the call well some of the other conditions we type decision that's where you would start and so we've got this one provision within an annual appropriations act it's hard to start parsing and know where it is the court show up or whose judgment we're supposed to be evaluating why isn't that the rest of that sentence which moves on to unforeseen military requirements or where the request has been denied by congress what means what tells us that that's a court type question well unforseen we would we would sit at the facts show that this is that this is certainly under just a minute answering his question because it's the best one it's not what your argument is who says that is not to determine that that's his question and that's the question which i think is most important especially if it's an a p a p well answer his item that is denied by congress but india d has no expertise in that issue whatsoever and again that needs to be subject to the constitutional limitations but just a minute you say that all of that relates to the higher priority items and d o d is the one who's terminating what the higher priority items are based on these considerations thereafter so it seems to me that that again is a d o d decision because it relates directly to the higher priority items that's why i've worried about the difference here and i just keep asking you about that sure well higher price higher  based on the fact that in no case the funds have been denied by congress based that's how you determine what the higher priority items are that the would be will make the determination that higher so higher priority items your honor need based on the fact that these things must these conditions must be satisfied they're the ones who have to make that determination because they're the ones who have to determine if it's higher priority items especially as it that nobody at the district court no one any place along the line has ever looked at that statute in that way and that's what the government would be saying if we had an a p a claim they would sa somebody has got to tell us that that's the way it is so we've got a statutory claim if we don't think you've got one equitable claim which we don't think you got one because of questions which judge friedland's given we're now on alt berries or constitutional and i'm saying you skip the very claim you gave me in your briefs which is the a p a claim which would give us out of this all for various and constitution we would have to go there and government sided which is worrisome to me which is why i think you probably do need some briefing that to do with the dolphin case which suggests that hey just not doing what's supposed to be done on the statute is not something we ought to get to on ultra beer is a constitutional we ought to do that on something else it seems to me we have not really looked at what avoidance which says one is is one of the cases that stand for that and we would say your honor that if that is or five cannot be read to reject the clear judgment of congress which was not to provide any more funding for border barrier than one billion three hundred and seventy five million dollars only in the rio grande a valley and only to this to the enumerated conditions that were in that were in the consolidate appropriation act and the agency has no expertise no  to the agency thank you john thank you i think we'd better give the government twenty minutes to be fair because we've taken everyone over their time i really appreciated to treatment so i have four points i want to try to make if i if i'm able  to speak with some experience there yes your honor i would cut straight day one thousand and five because it really get to talk with you all about it last time i think aside from the difference issues which i'd like to get to in a moment the key linguistic mistake the district court in the plaintiffs made is on the item so what the provision says has higher priority items now what this item mean item means a line item and item in the budget because this again is a statute about transferring money within the deal d budget it's not a statute or a provision that allows transfer money anywhere in the executive branch it allows transferring money from one do you do you account to another so it doesn't make any sense to think about this at the level of generality that the district court in the plaintiffs when that read unforseen and denied basically out of the statute because wouldn't you just call it a different line item every time because otherwise it would be futile and i don't understand if it why the government would if there had been a line item that had been denied why it wouldn't just call it number three instead of calling it number two so that it no longer was the line item that was denied so so if that is the hypothetical we're in i think the government still prevails because there's none of that here so we're not talking about an argument that something in the dio d budget denied fund but we're just one level of of that right i mean there was a whole there were lots of bills to fund the wall that were denied so i mean you're saying it has to be a line but where does that come from in a couple would come from the word item your honor so i think when they say item they're talking about items in the budget maybe the item is the wall why i understand that that's the plane its position but i don't think that must take a look at the language of of the provision eight  eight i'll give you a chance to get it if you don't have it in front of you i have your it seems to me it breaks up into parts because you have the st part unless for higher priority items based on unforseen military requirements and those for which originally appropriated and then there's a nd part yes and in no case where the item again using the word item and i'm not sure it's the same word for which reprogramming is requested has been denied by the congress well i read the nd item to suggest the item is what are you going to do with this money that puts the focus on what they're going to build not the form of the request that was before the congress before the st use of the word items maybe a little bit more like you're arguing but i have trouble understanding how the nd use of the word item doesn't focus on what you're going to do with the money as opposed to the form of in which the money was requested so i actually think it does your honor but the question of what you're going to do with the money is what program are you funding with the money so are you funding it to eighty four dollars counterdrug construction project which is what deity is funding here or are you funding a d h s s led border wall building project which is in a different budget and aquifer in different light doesn't that view basically read the statute out or the provision out of the statute altogether because you can always come up with a creative the justification you could say well we're not actually building a wall it's an enormous screening which we're going to project movie is all along the southwestern border so people can come watch movies and so the previous denial of money to build a wall to interdict drugs or anything else no no no no we're not talking about that now we're talking about building an enormous movie screen so creativity would permit the administration to come up with some new articulation but it doesn't change the fact that what they want to build is exactly the same thing that congress did not fund right because i think in this very precise budget statute what they're trying to police is internal moving of money around  not cross agency programs and things like this where one agency doesn't isn't doesn't do something and another agency does and i think that's why they use such precise language and so it would be a little odd i think for one thing to interpret the word item differently in the seams provision and so if we if we agree that item in the st usage refers to line items in the d o d budget it's hard for me to understand why we would think the nd or it item means something else because it reads the nd part out great completely because you can always come up with a creative justification that packages it differently it's or just listen i don't think it does and so this provision has been around for a long time and congresses and d o d have abided by it and it's always worked pretty well and what normally happens when there's a denial is do you do as requested funding for some projects you know the missile project some base or something and congress says no and it'll either say no it is part of the appropriations bill itself or it'll say no in the joint report that the the conference committee issues when the budgets as you know that's not traditionally enforceable because it doesn't go there by camels in the present but i can assure you the d abides by it and so that is how this provision has always worked and what they mean by deny the item is denied they mean that it's something that came up in the budget process and congress said no in they'll have me but i have a hard time understanding this as being simply in the long tradition of how it's been done because it's made pretty explicit here that ordinarily it's run by by the respective committees and we know that the house committees disagreed and the so called gentleman's agreement has not been complied with so how is this within a tradition that's been existing for years when in fact there's seems to be a digression from the time your eyes would be clear the legal the meaning of the term item as a legal matter i think can clearly be informed by the tradition of how the two sides have interacted the fact that there's a political disagreement now about this particular usage of eight thousand and five it's something the political branches can and will enter in the process of working out i can assure you that the house of representatives will take a different perspective on eight thousand and five in the as part of the urgency you've offered up to us because the reason you're concerned about these funds lapsing is that you're pretty darn confident that congress is not going to open this door or leave this had story to be opened next time so i wouldn't i wouldn't put it i might lead as if that doesn't really weigh in favor of saying you get away with the st time for me once well you know i'm a little so i think what we did the st time was lawful and i think congress is going to change the authority neck to make sure that you can't always so how does that fit this tradition you said been going on for years and how things work why basically you're saying the dog gets one bite and this is the administration's bite and we're going to make sure you don't get a nd bite we should get away with the st bite now that we should get away with a judge clipped him but that we complied with the terms of the provision and that's because the item at issue is not any item in the government it's got it only makes sense if it's an item within the a d because this money can't leave so the plaintiffs have characterized this is money that's being given to d h as that's not true it's money that the army corps of engineers is going to spend to construct the border barrier i couldn't i also would like to and that's exactly the same order barrier that congress elected not to fund through d h s it's not wrong or so with the what the administration asked for  for counter drug purposes you could go i don't want to keep kids from running away from school you could call it you could put in the department of education i mean it doesn't make any sense it's what the whole government shutdown over where you are respectfully i think in law these formalities matter and these are different government programs they're completely different programs they have different statutory authorities they're different agencies they're completely different and so i think when we're talking about what this very precise budgetary provision means it's important to look at the formalities of what's going on in the government it's not just a free floating inquiry and i'll get the political question  because i think that is there's a real question there into everything one other point on denial though even if you do even if you disagree with everything i've just said i we would submit that what congress did is not a denial and the reason it's not a denial is that the passed the statute congress and acted funding specific place and not only that it actually has very clear denials in it of five very specific things for d h s which is construction in five very small wildlife refuges and that's a section two hundred and thirty one of the consolidated appropriations act so you can judge clifton if you think i've construed item too narrowly i think the government is still correct because there's just not a denial and that provision by the way was an active in february of two thousand and nineteen so that was enacted five months after the d o d budget and so if congress wanted to deny this congress had the ability to do it about at the time the specific budgetary request because the request hadn't come in and so d h has hadn't sent a request over to d o d in time there would have been no need for the request of in fact d h s s had gotten the request granted that it pose that may well be true although there's nothing in the request that the h s made that would have precluded it from sending to eighty four dollars requests also to deal with drug trafficking at the border and so there's just there was no no proposal in the summer of two thousand eight hundred dollars to do this but even just to be more clear about that even if d h has had gotten everything it wanted that everything they had asked for for border beer construction they still could have made through eighty four requests of d o d for assistance in building border barriers and drug smuggling corridor is like the ones here and so there's just nothing in the record anywhere to suggest that this was something that was for seen in the summer of two is there anything in this request that calls for construction that wasn't encompassed in da just his request so the request was made at a general level and in the request they said they would use it for that i don't have the precise language in front of me but for the top ten nd find it centrally like the top ten d h has priorities one of which is one of the per one of these areas before the court now one of which is not and i apologize i just forget which is which but so the answer to question is a lots of moving parts says very complicated and i think so i'd like to if i could just address the political question issue that i think judge smith alluded to earlier so i think if you interpret the statute the way that we have proposed under the test sorry to step back a st the test is whether there is a lack of judicially discoverable unmanageable standards that's as it often says and so if you interpret the provision the way that i've proposed which is where it's based on things congress isn't acted specific budget documents i mean really objective things i think you have judicial manageable standards if you interpret it the way that the plaintiffs have proposed where anybody can sue because the zone of interest requirements doesn't restrict the plaintiffs and the inquiry is not into what i just described but is into what you know what the chief of staff was saying on the news in the summer of twenty eight teen or what the political rhetoric was among different political leaders and who argued what and what the president said into the government shutdown i think that starts to sound an awful lot like a political question because that is just a free floating inquiry into what was going on in the political budget process i mean there are about isn't it just the judicial question about what denied means and what unforeseen means the seem like very definable words why agree judge friedland but i think they're only definable unmanageable if you define them to mean for scene within the budget process that's right george clifton but that's that that's the problem is that when you extract extrapolate to that level of generality then you have a pretty free floating inquiry into what was going on at the time where you're looking at what people were saying on the hill what people are saying at the white house etc one other point on political question i'm not even sure you need to know i mean there were actually some bills proposed right and they were due they didn't pass so it's not like we have to just look at the new york times we can look at what happened in congress right but there weren't bills proposed for two hundred and eighty four counterdrug construction and so now because you came up with a new label but bills proposed to do this thing you're honored respectfully that's because we're using a different program we're using a different statute congress and add to the deity is used for decades to get engaged in border barrier construction often with praise from congress in order to engage in this building here and so what the court would have to do to go with what the plaintiffs have suggested is extrapolate this thing out to a level of generality say this border wall and that border wall are all just one border wall even though that's one that's being built by customs and border protection in one place and that's being built by the defense department to stop drug smuggling in another and i just don't think that's the kind of free flowing analysis courts typically do one other point on this it was suggested earlier that there might be some sort of process injury that because the plaintiffs and participated in the legislative process you are i'm from washington i can assure you there are a lot of lobbyists who will be coming to court about everything in the budget if the court finds that being injured in the process allows standing to come in and sue about a program and so i would discourage the court from from going there because i think that would give all kinds of people who right now can't bring claims based on the appropriations clause or the appropriations process effectively taxpayer standing to come into court if i could just talk for a minute about the balance of the equities so i think one of the points that the district court essentially glossed over entirely is the balance of the equities so the supreme court's decision in winter versus n r d that in east in each case quote courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief in that case the balance was between the navy wanted to test sonar on out in the ocean and the plaintiffs were saying that could injure marine mammals and thereby injure our interest in you know watching whale watching and the like here the plane of the government's interest is in stopping drug smuggling at the st and rd highest drug trafficking corridors on the international border with mexico where hundreds of pounds of drugs are coming through every year against the plaintiff's interest which appears to be hiking and fishing and the like on the international border with mexico no in drug smuggling corridors where there are already vehicle barriers and so just to just to spell it out a little more the construction that we want to engage in will be the sixty foot strip of land paralleling the international border that is already is the enrique declaration fall below which i commend to the court says this quote heavily disturbed and quote and marked by barriers this area also because it's a drug smuggling where there's lots of drug smuggling already isn't mr and we can explain quote functions primarily as a law enforcement zone so i mean the plaintiffs had declarations about how this was a peaceful desert and they hike and i mean if there was a factual dispute about their standing then could you have requested a hearing on whether they were telling the truth i don't understand how we're supposed to resolve this at this point your honor i'm not i'm not making a factual argument i'm making a comparative argument also not challenging standing what i'm saying is that even if it seems like what you're saying is directly contrary to what the plaintiffs declaration said about this that wildlife in the desert that one professor is studying another one hike there and it's very peaceful and they're nothing nothing box is blue so it seems like you're saying no that's not true no your honor i think what i'm saying is that even if it is there some marginal difference in the view of the international border from wherever the professor was standing and is referring to in the declaration that is a pretty marginal difference between vehicle barriers with drug smuggling and law enforcement and all of that between what exists now and what we want to build and when you compare that to the government's acute interest in stopping the massive amount of drug smuggling in these drug corridors it's a lot like winter where you've got plaintiffs that want to go whale watching as compared to the navy's ability to test sonar and be ready for you know international conflict and so i think is there anything that's made the drug smuggler i mean recent on the th circuit we know about drug smuggling we have a lot of those cases anything to suggest that conditions have gotten worse i mean that we we have a theory also presented to us that suggested even by da's account the real problem is not between the crossings it's after a crossings any indication that whatever conditions have existed in the border for the last several decades can't be allowed to persist a little longer while this gets sorted out so a couple a couple points your honor so i think with the da is saying is that the drugs the drug problem is terrible everywhere and so yes it's true that a lot of drugs are coming through the port of entry but a lot are also coming in through these these drug smuggling corridors here and that's addressed at some length in the d h s request for assistance the master declaration which is that e c f one  really deadly drug in just the human drug smuggling corridor alone and what percentage is that of the drugs that were smuggled in your i don't have an answer to that but i think we could agree that everything one hundred pounds of drugs that we stop from coming into the country is important and that the government has an acute interest in stopping any drug smuggling even if it doesn't stop all busy drug smuggling and so i think just when you compare that to the interest in going maybe not even more than a small fraction of drug smuggling you or i don't i don't have a fraction of so so we can't assume to the contrary you know but i think what i'm what i'm suggesting is not that the entire drug war will be won by building these two border barrier projects what i'm saying is that this drug smuggling the drug smuggling i just referenced will be stopped because the vehicle but it just you know lives over to somewhere else and then maybe there are environmental interests outweigh that little bit of extra time i mean without knowing how much we're talking about how can we weigh that we do know how much we're talking about because i just gave you the figures your honor we don't know is the comparative amount and obviously it's very hard to predict the you know what do you how it was once was caught there now yes i don't think that speaks to what will be stopped with these barriers are built up in terms of what additional might be caught or what might be discouraged or what isn't moved around the wall but one of the problems with the limited barrier is that you can walk around the end of it that's why there are things that go on between the borders of expertise in drug enforcement what i'm saying is that the people that do drug enforcement all the time have determined that this is the best way to stop drug smuggling on the border and that's why they were sent there to and they made that request to congress and congress it i mean i understand i know that the words that you've used to explain why we should disregard that but i have a hard time if what's being offered up as the basis for the balance of equities or the reason this is such an emergency decided not to make that kind of request suddenly they are needed on a bus request for all kinds of reasons to engage in general border barrier construction as one clear and that we plug they didn't turn in the particular project we're talking about now they turned in a bigger request that i think would subsume this so if i could also just those aren't the only equities because there's two very important and emergent equities right now that i think the court is familiar with because you've alluded to it but i'd like to emphasize them so that was the problem below the problem on the stay is that if this injunction last until seems like you're having it both ways no your honor the emergency is that the money will lapse if it's not obligated by september rd and once it's all gated and given to the contractors it can't come back right but the plaintiffs have no interest in that the plaintiff's interest is in stopping border barrier construction the corking obviously and joined us from border barrier construction any time the court could issue an order in the middle of august while the contractors are out there with the bulldozers and what have you and the sewers the order stops we'll do everything we can to shut that down i mean that's that's totally with it that's the worst of both worlds is the money is spent and you don't get like is fine actually i'm not sure the plaintiffs are right that we can't get the money back i actually don't know the answer to that i do know that if it's obligated it doesn't lapse i don't think that's the same as saying the contractor just keeps it and gets to run to the bank without building anything about you that you've argued that one of the problems is and everything else you have the money much of the money will be dissipated which is why that word we are trying to move as quickly as we can and i want to come back and this may end it but i want to come back to the question i posed before is there anything that the administration thinks should call for supplemental brief and also your honor i mean we're happy to do supplemental briefing on the issues alluded to in the order we're happy to do supplemental briefing anything else but we would have to ask the one hundred days that we need to obligate the money run censoring satellites the trade i mean in other contexts it's common to ask people about cell phone briefing and the universal answer is yes of i'm about to lose on that but of course that's not the question was being posed court your trade office time and we recognize that we'd like to get more assistance from the parties in the m e c but it takes time to do that so so the question i'm posing now is are you satisfied with the state that we have in front of us or is there something more that you think should be added i don't think unless we get into administrative stay that allows us to start out the obligation process by the weekend or by next week i would be able to agree to anything that being said if the court you know if the court grants a stay i think we would agree if the court is inclined to require supplemental briefing anyway of course we're happy to provide it and we'll make do as best we can but i think without a stay i couldn't do that there's not something else that you say wait here from us on this subject but there's one more point i can make it right now which is that of judgments questions about the a carry the day in the court does agree which we argued below that this is all an a p a case that has two very important consequences the st is deference is judgment is alluded to the nd is and i know no one has to hear about this but the zone of interest requirement is one of interest requirement comes back and if i could just read one quote from