subsequently and reynolds the united states supreme court held that quote soreness registration requirements do not apply to create act offenders like mr ross until the age of the attorney general specifies if they do apply mr ross contends that h delegated its legislative authority to the executive branch in violation of separation of powers principles and second even if the delegation to the attorney general was constitutional issue in general fail to validly specify sora not applied to people like mr ross until mr ross was convicted of simply failed to decide or to give any guidance on how to decide whether to apply to anyone on the day it was passed you could have applied to no one or could have applied to you know half a million people who were who had existing  made such a vast delegation of its authority but the supreme court ruled that it had a knowledge it was a constitutional question present that whether the delegations constitutional justices scalia and ginsburg expressed concern that such an extraordinary delegation was not constitutional rights and specifically said it's not entirely clear to me that this is justice scalia writing just ginsberg joining the congress can constitutionally leave it to the tourney general to decide with no statutory standard whatever governing his discretion whether criminal statute will or will not apply to certain individuals that's a statement that there is in no intelligible principle stated if there is no statutory standard whatever governing his special although other circuits have all rejected discretion between a fine it's no one applying it to half a million people on and choosing and picking i don't know that there is a guidance there is a boundary you can either get somewhere in that spectrum but there is no guidance on how to exercise discretion within that boundary the general didn't recognize the delegation at all i mean to say he was given clear guidance but he didn't realize he'd been delegated to you know as strange i'm so this is a truly unique situation congress created a federal crime where the as not only have an intelligible principle but it's tying my hands on this decision so the a g u thought there was all kinds of direction here and so what do we do it made more sense you know really to interpret the other way and i think that's because it makes no sense to delegate but because of violated how does how does one find a violation of any delegation doct but how this is going to work implementation wise is a mass and that's come out of maybe change from state to state you figure it out with me any intel delegation problem there i don't think so because that would be the implementation and interpretation that the train general you know did a great job on in the stark outlines and he really figured out a good way to operate it and that was all great but the fundamental specification you know was never  everything that's in the guidelines i mean my challenge you to sign on to all of them but everything that's in those guidelines would at least be consistent with any delegation principles those would all be the kinds of decisions the a since that time to all sex offenders so unlike in the interim rule and unlike in a final rule where the attorney general says very clearly we think congress did it i think i did it in the interim rule but i'm doing it again and use the word specifies cited one thirteen d in both the interim role and the honorable here does not do that does not say that's is a very formal argument i mean belt suspenders and another belt you know that it almost becomes awkward for the short term home to say i thought it was in and if the interim guideline is not wasn't supported by good cause to to bypass innocent comment the attorney general here might be to his mind well he does walk back you know between the proposed guideline and the final guidelines he does change the only thing that gets changed in the retroactivity section is that sort of critical passes that we're talking about because in the proposed guidelines the attorney general does cite quote his or talk about his own interim rule and says service requirements apply to all sex offenders including those whose convictions predate the attorney general has who provided in twenty eight c of our part seventy two percent to the authority under sworn to one thirteen d saying i specified it and it also cites the preamble to the informal which does say that congress made that way all along but it's interesting that in the final guideline he just says he kind of takes  state under preexisting correct not just i'm under sooner but like you know your registration to expire for example i think mr ross is registration was within months of expiring when the fence was charge our time moments we're too sure we're going to change them yeah i mean i guess that could happen but i mean as far as what the effect of soreness is on mr ross and whether it's a notice question or not you know it's i think it's much more fundamental than that does he is he subject to its requirements which is they must go and do x y and z and if he doesn't goes to jail this very good attorney general had the comments that were submitted following the interim regulation when the smart guidelines were proposed and when they were adopted is there anything that was submitted in response to the interim rule that raised any substantive issues that were not addressed mean it's our view that there was that the people who commented were not sophisticated stakeholders they were but that's not is fault that's the action of the supreme court i mean so that seems like that goes to harm a sense if i mean it i mean i guess it seems important to your claim that then doesn't it turn on whether there was a kind of bait and switch in terms of when the specification was being made and that had it been clear in the smart guidelines that they were disposing of this question that your client and people some of those situated would have commented and perhaps implement the final loans that's in the sara lee required and i and that's my argument of the smart guidelines primarily is you know if you just look at it what he did and how he said it it's pretty clear that he does not intend this mark redlines to be a specification to be taking action and it's only later in the final rule where he says i think i need to take action here and he did that and that at that point i think the the problem solver that was no too late to catch mr have good cause and sort of asserted it without it and then some second you know fail to limit this error to a brief window like you could he couldn't see issued the final rules at any time after he received those comments and waited and  that mistake was i think again because he was wrongly confident of his good causes in so i think that there was you know he was close minded and it was somewhat appropriate given his understanding of what was going on but he was just wrong and it's you know it's unfortunate for what they were trying to accomplish but they failed to accomplish it and the good cause i think you know five circuits have agreed that there is no good cause and when there's an utter failure like this to fire with the nearest requirement the court has to be certain and there should be no certainty here as to what would have heard if the attorney general had you know for example been made to realize that this really was his decision you know what i mean we really don't know what it would have happened if he'd understood that it was his decision which he never did understand throughout this and good cause reasons that  were given or not you know i like to say also that you know it's sort of ironic that you think he said we don't know what would have happened if he understood this was his decision don't we i mean i thought you know that wasn't really the government you're arguing because we do know what would have happened he would have probably back to a much quicker of interim role and finalize that well once once you're locked in i think you can't really look back and say exactly what would have happened that you would've done the same thing if you hadn't already lock were caused it was sort of ironic that the government treated this like an emergency when in fact he didn't think it was necessary at all but that makes perfect sense i mean it undermines your position you say we don't know what would have happened i assume you're suggesting that he might have not fully exercised the specification power to the maximum ability but even to the position the government took and reynolds i mean the government's position was that was precisely the power that the attorney general had to roll back to any degree he thought was significant in the pic ability to pre act offenders he knew he had that authority didn't exercise it so isn't the converse of that  it's very clear even on this sort of counterfactual record that the attorney general intended the fullest practicable a plurality to practice i mean he did make some changes in response to comments about like they obligation to juveniles and going forward and some other things and he was open to realising that it doesn't have to apply to every single person you could possibly apply to many mr ross you know that would be a potential line that it might just be that that the practical difficulties of doing this are so great and that it's just not worth it to impose this on the states there's too much pushback that's the sort of thing that happened with the juveniles so i do think that there's possible it's possible that without proper notice and comment and really harmlessness is generally only relied on when the dispensing doesn't undermine the purpose of the procedure and here the purpose of the procedure was undermine retroactive was not my call not my decision to make how can that possibly reflect him making any independent judgment as the grand old supreme court decision required i disagree that that is the either the tone or the effect of the attorney general's office and the final smart guidelines the attorney general understood congress through three retroactive indian rule explained that were he i had i can't imagine that any clear statement of this is not my decision to make you're asking me to second guess the legislative policies it's ledges and decided this legislative judgement is wrong so how what do i  able to anticipate all future regulatory measures and that really support judge my let's point in that if congress has made the choice and there are objections the attorney general's taking up the constitutional objection because that really was a specification and in those guidelines were guidelines that address issues beyond constitutionality of address the fairness issue as well which would go to the attorney general's judgment about whether someone should apply retroactively to all founders as to your honor second concern there's no suggestion in the act that specification need to be aimed at a particular audience and in fact the jurisdictions understanding their responsibilities for these very active vendors and who they need to do look for and how they need to look how to implement that broad requirement in a way that would satisfy the regulation these are just the whole concept of considering comments and making a decision only works if you actually have the my call you've got to take it to the other person down the hall and that's how do we know the a g would have given any open minded consideration when they take comments about whether this should be retroactive or not and to whom when the a g said congress has already decided that who's going to spend time concentrating on that which we know that because that's what the attorney general did in the final god once we know that because of the edge of a pretty   he does not say congress decided this matter full stop congress he believe has decided the matter but he goes on to address these other circumstances and in fact in the final he said i but i think that's i guess what i'm having trouble is i think he says congress made this call full stop and the quote i gave to you and later in the room when he was talking about the required retroactive application of the attorney the attorney general himself understood the final smart guidelines to have addressed the comments on retroactivity eight five zero the first guidelines addresses those concerns that's what the attorney general himself understood even by the time of the fight was in the final rule itself prevents it was your honor but the attorney general understood the final guidelines to have comments about the application where implementation they were how are we going to implement this how is this going to work what's the timing how is this going to intersect with the state systems that is i have no doubt that the a thought he had discretion to deal with that and was explicit about that talks about the authority to interpret and implement so he knowledge is not authority but i don't see how the age he addressing comments that address all right rubber meets the road how is this going to work or any evidence of the age he thought he had that made the fundamental dependently made the fundamental decision about right or to activity or not that's what i'm having that's just going back to congress and not to some second guess the legislative policies then body it was looking at the legislature but also it's underlined sorry to interrupt and i think the the burden is a little bit different if the attorney general is reading the statute to say congress has made this determination yes i have the authority to roll it back because that's the position of the justice department in the supreme court and rounds yes i have a thirty year old back but given my understanding that congress made that judgment and my question is whether to trump that or push back on that i'm deciding i'm not going to do that wouldn't it be a different question if the bur interim rule that even though he thought he was found by the statute he was going to make a judgment notwithstanding being bound and that judgment was to apply just a few months later he promulgated the interim smart guidelines which reflect and the attorney general himself as evidenced by the final rule believe that these comments officially addressed consist sufficiently considered and addressed the that day final smart comments so even though you didn't think you could make the call how you responded to comments is good enough do you have any case that would that fits that model i don't you're  actually a tree green judgement here with legal consequence as to whether or not it was going to apply to his conduct so it wasn't just notice but then you actually had to have that trade green decision by the attorney general independently by the attorney general which is what's missing and so i got i understand your notice point i understand your point your honor in the attorney general did not say i am bound by this full stop he said i believe congress has decided it and then explain why his judgment  same and he understood himself to have made that judgment call and at least made that explanation as to why the policy would remain the same in the final smart in the final where he refers back to the final smart guidelines in this they've got the  only with respect to pre employment ation clarita all react offenders the the interim rule early excuse me the proposed guidelines made that clear and in the final guidelines the attorney general said for the reasons i've explained on the same page we've been looking at no changes have been made in the final guidelines relating to retroactivity based on the comments alleging an adverse effect on sex offenders so the attorney general understood that the the language your honour's pointing out under section c retroactivity to be making  reactor founders and in fact the basis of the guidelines of explains jurisdictions how they're supposed to implement that rule for offenders whose convictions predate the act not simply offenders whose convictions predate the registration program although those would be no registration program renders a billboard to group because of the both offenders who predate the act and those who fall in between when the act was passed and when  informing registration program right thank you very much with all due respect to the five circuits i think that it's pretty clear that they're wrong because the if you compare what they try to general said in that final snark outlines of what he said in the final rule it's just a very very different approach and there's a large contrast between the two even though harry would then mean not just your claim but even the final rule that's out there now wouldn't have traits still would not be triggered  anybody retroactively as of today because the final rule was pretty reynolds as well as the final guidelines or do you agree the final rule was good enough i think to have that's a hard question but i think that obviously does not affect him but i think that might be a question of the day that he does say no i don't think it is i think if we buy this rationale that i don't know how we didn't think race i'm not sure i'm not trying to take a pass on even if the final rule in the last little section of the agenda i'm sorry the bottom there he says the guidelines like the rules state need that's a contrast from saying specify and then he points out in the next paragraph that the sixth circuit having said he said no that's just an offense and about the int specify that the requirements that quote the requirements of the sex offender registration education act apply to all sex offenders including sex offenders convicted of the offense for which the registration is required part of that out so here and saying he's he specified he understands his background he still specified right he determined there was good cause for receiving public and after i mean isn't that the the statement of having exercise of judgment but he believes wrongly that he had because i mean yes the interim rule didn't specify but it did so in violation of the a p a but that's a separate question but we were just talking about whether one could