thank you no on earth good morning almost good afternoon may it please the court i think the first thing the court would want to know is what is the has reviewed the papers and and i got actually very impressed that much the court has prepared for all of the cases today both of the orders thirty one and i think it was clear in both of the orders that the change in the order was only a temporary reassignment for medical evaluation and that's been going on since the end of december of last year and still is yes and the government says it will be another three to four months for the medical evaluation and the court is curious  evaluation and we don't really know when it's going to be completed but the january thirty one two thousand and five order which is the most recent one says very clearly that at the end of the from now if he's found medically unfit and he's discharged on that ground then it would become moot so i don't know if the court prefers of course it wouldn't be unreasonable to wait before ruling on this  issues that we raised in the amateurs brief because those issues that not been raised by the parties so to that extent at least the santiago decision does not bind this court  but i believe that the santiago decision even on the issues that it resolved the contract and due process notice issues that it should not be binding on this panel because the circumstances are quite different here to us last me on that one tell me why it is that the circumstances are different i understand there's a different person involved but there has to be substantial factual dissimilarities before i would say that doesn't apply tell me why that is i've missed something  the involuntary extension of his listeners that the military cost stop loss though had already completed an eight year unless meant including four years on active duty and service in iraq and district court that he has a few young children and that this was an opportunity to try one year affiliation with the military the father he would be interested i haven't seen the contract in the record let's just assume that it is the same contract isn't he going to be bound by the contract will interpretation of santiago as to what that contract  in the record it's actually handwritten next to the signature marketing well that's how john doe was lured in by the notion that he was enlisting in the national guard for one year and he re up for one year here and that's why that the most significant term in the contract and the one that is really discussed in santiago is the one that talks about the circumstances under which the enlistment may be extended i'm not sure where we're going in the event that congress declares the war national emergency which it's on the state that's on the state guard bit but he's in the national guard it's a little different i believe your honor with all due respect war or national emergency and so on that basis that i submit that more general terms in the contract that say that it's subject to laws whether they are specified or not  and that these changes in the laws made if the recruits status or responsibility or pay or benefits those are not as directly applicable provision in the contract that directly talks about the term of the enlistment because when you deal with the expectation of the party needs it was very clearly an expectation that he was enlisting for one year it's one thing to say that once you're in the military they can change the rules and you know assign you to something that you weren't expecting to be assigned to but it's another to say that if you sign up for a specific below that this was just for the convenience of their database on the computer but the fact remains that if the court doesn't honor the very specific if the military is an acquired to honor the very specific term in the contract about when the enlistment can be involuntarily extended that act that people should know that when they sign up for the military they're in forever and as well as that anything can happen the military has complete control not only as to the circumstances of the service but also the length of the service so that's the main distinction between this case and santiago but of course the other issues that we raised in this case were not addressed in santiago and i think they're extremely important issues  the one that i think is at the heart of our constitutional democracy is the separation of powers issue this is very clear in the constitution under article one section eight that the congress has the right to raise the army while the president is the commander in chief and this separation is a very fundamental protection of the liberties of americans and if president truman was not allowed in his capacity as the commander in chief to see as the steel mills during the korean war then i don't see why president bush should be allowed to if in the in our opening brief there's a discussion of taylor versus united states where the you argue that the president has no power whatsoever to exten declaration of war or national emergency before a serviceman can be in voluntarily extended in his numerous men she has only aberrations chain of logic in your argument because it suspend laws relating to separation discharge or retirement yes in certain circumstances and not based on a congressional declaration of war or national the extra years during a time of national emergency player or simply to authority conferred upon the president by congress in the middle of an ongoing military conflict is actually authorized by congress now it's pretty narrow well except that the as the district court interpreted it in this case the national emergency doesn't have to have any relationship with the purpose for which they servicemen term of duty is extended and  this is exactly what was underlined taylor versus united states think it's on page round page twenty of our opening brief the court discussed there that's the third circuit and they discussed their  y power to involuntarily if standing list ments was being abused during the vietnam war because they were relying on a national emergency that had been declared during the korean war so we have a constitutional separation of powers that protects people we don't have as in the european and south american constitution a state of siege provision where the executive can declare an emergency and then  suspend all the other laws that's a very exceptional situation and i think that just to show what a protection that separation of powers is of our fundamental liberties now if congress ha to perform its own constitutional duty of transcript of drafting servicemen in voluntarily in order to occupy iraq and afghanistan then they would ha  power as commander in chief sought through his secretary of commerce sawyer to seize the steel mills the supreme court said no and if the supreme court when this court aren't in a position to guardians of the fundamental liberties that are preserved by the separation of powers then who's in a position to do it what is it i think it's the words to mean it's not coming through with your chain of logic ye even though approved the venture should have declared an national emergency itself is that reasoning that's the reasoning under the separation of powers theory that if congress declared a national emergency and made the decision that therefore justify conscription then it would be direct action and democrat and they be democratically accountable for it by the president doing it  instruction many times and i find in there no reference to the suspension of any laws and i think that our argument that that under twelve three o five there are no laws were suspended is absolutely correct now of course santiago it was decided after we made that argument it was the it was amended to include that finding on september twenty eight which was only a few weeks ago before i get to any merits questions that i would like to address the suggestion of lewdness that we filed and that my opponent has responded to just a couple days ago there was one representation in my plan is argument that i think  clarification he stated that upon completion of medical treatment and physical evaluation john doe would be required to be returned to active duty with his unit and that's not accurate that orders actually say that he would be  returned to his home station his permanent station they also say that upon return to his home station he would be released from active duty there is that's a significant difference after all his home station in sacramento california and upon release there under turn there he will be released from active duty at that time there's every reason to believe that he'll also be discharged from the service because in this new period would have been completed there's no dispute i think at this point that john doe is not currently serving under any involuntary extension of his enlistment period he's currently serving under orders that and on his consent to medical treatment active to be serving on active duty for medical treatment extension i don't know if there's a possibility but i do know that it's not currently that there is no current involuntary extension and i acknowledge they've raised  the idea in their response that in the future he could again be subject to the stop loss policy first in the order that we have now i don't see any indication that that's true there's certainly no indication that he would be returned to his unit on kind of injury that he's complaining about and therefore for that reason i think that there's no case for controversy for this court to resolve the merits however we're not running from the merits i want to make that perfectly clear we think the merits here presented leave no room for these kinds of arguments they resolved the question of the plain meaning of section twelve three of five which is and they held that that statute gives the president and by delegated authority the military to execute the stop  g is not a meaningful difference it's first of all this is not a case that any factual representation is that might have been made to this individual if you look at the petition there is only a passing mention of the name of the trial one program there's no representation of any alleged fraudulent misrepresentation concerning the scope of that program or it's a fact therefore that that does not offer a meaningful basis for distinguishing the santiago  the contracts are the same and i was i didn't quite understand how the trial one issue came up but i would suspect that his counsel argued that his client was lured that and stop a claim against the government is an enormously difficult burden to carry permit of this crime by all kinds of forms i think that's right just trying to and they haven't they haven't even tried to make the argument let alone carry that burden