deny a party release this easily by a mere ratification there's little reason for any plaintiffs to try to vindicate the constitution's core structural protections under the influence clause i'd like to begin by discussing ratification cannot take place after a challenge to the action has already been filed here that's that clearly is the case the gali ratification did not take place until well after more than a year after the challenge was file of that argument even if it doesn't think we raised it below in order to preserve orderly process the alternative would be for this court to issue a decision that conflicts with supreme court precedent and so for that reason given the importance of the structural guarantee  constitution and the need to reach the right result here the court so we're talking about two different things here i just want to be clear you did not raise in the district court the post filing of the complaint clearly not enough that does not satisfy the appointments clause the official has to take responsibility for everything in the rule being issued it would be like the quote of a judge letting a clerk write an opinion issue and later saying or even at same time saying that's right that is not sufficient for the probably point official to take responsibility but but are there any cases in which we have actually looked at the sort of the substance of the articulation by the ratifying official and said to me and we don't really think that you considered that it's and therefore that we invalidated it is not ratified no in part because yesterday goes to a different question whether the official properly considered everything he needed in order to ratify this is about whether there was the intention to ratify in the st place he in all those cases whether the ratification itself or the circumstances around the ratification made it clear that what the official was doing was ratifying in the space of a problem if there was an official who is ratifying all that same officials prior actions before he or she had been properly pointed or some other context made absolutely clear what was being done and why here you talk about a ratification that is included in every single delegation document under agency rule and reflects no inten ratify and sure there is no evidence whatsoever that that boilerplate language has anything to do with appointments clause while ations that caleb had in mind any one is caused by elations much less this appointment clause violation this simply a case unlike consider some sacked or that he should have or that he didn't provide enough detail it's that there's neither any indication the ratification itself or any of the circumstances surrounding it but he actually intended to ratify a women's clause violation in this rule or any other so what would support your girl would be that the agency would have to say well there isn't a presence cause problem here and therefore we're going to extend it i think that would be a very easy case and you know there may be other problems of the right occasion but at least in that case you would know that d the ratification was intended to to ratify in the face of the challenge but i think you can also get it from context many of the cases that you referenced earlier it was clear what the official was doing is either a board that was improperly constituted reconstituted in compliance a department clause and then ratified all of its own prior actions everyone understood what the official or the board was doing in that context rules on the record on which they were made and so unless there is no ratification of all they have to be able to look at it on the record now i disagree on it because because of the it was caused by elation you have to discredit the rubber stamp will suffice when there are there is no reason to think that a rule would come out differently if the agency to repeat the a p a process here we should have shown through their recent studies that are now before the agency and by reliance on you county that that standard has been sounds like the agency simply can't show that is inconceivable that a properly appointed official going through the rule making process would not result to change but you're also right your honor that if the ratification were valid that and to plaintiff's point about the problem with ratification being that the agency can somehow avoid review and avoid correcting a lingering appointments clause problem through this mechanism that overlooks what it is th ratification accomplishes ratification is a remedy and so when a question is raised about the validity of the finding official the person taking the action it's entirely appropriate and indeed commendable for an agency to ratify that  in all of these cases the properly constituted board or properly appointed official asserted sort of across the board that it was ratifying all action during a particular period and that that is what calif was doing and your honor the i do not think it raises the nd sir and there's certainly full accountability being taken by the agency in the way that it has ratified this rule him out is that is the purpose of the appointments clause that is the principle that it limits who can do certain actions and if others who don't have that authority take that action and then years later persons who concern notwithstanding the passage of time as your honor notes the the one caveat to that in this court has described it as a very narrow exception a clickable only to limited circumstances not presented here but that's the situation we see in landry where you had vision like a recommending entity whose decision was not a decision at all but subject by statute to further review by a deciding official and there the court found itself in a sort of catch twenty two dollars where it couldn't even challenge itself in the same way that the door is open and closed before one can access or yes your honor that's you're familiar with that so the question here though is counsel argue then we are at commissioners and you have to rely on that and what is your response to the argument council has admitted they never raise this post filing the complaint so that argument is not before us and that challenge is not before us but his other concerns commissioner means ratification is what i thought my question was getting at and the way the brief is written true here that we are in a rule making contacts rather than the enforcement contacts that you see and might attack or what but the difference in contacts doesn't provide any basis for a difference in outcome here in both cases suggestion here that the agency necessarily would come to the same conclusion even if he had looked at the studies so i don't i don't think the court needs to refer to this evidence but there actually is a very strong basis for taking plaintiff's contention at their word at this point that they're there are suggesting that there may be evidence that puts the cigarettes in a more favorable light but the plaintiffs and others like in the same position as they are have been making that argument since the comment period from beginning also this is i did not mean to and i sense i'm trying to understand about our president is in the two cases that are reference we have been very clear that comes much later i thought your response was well the record closed two years earlier so what the studies might say even if they totally undermine typically occasionally it is the same official that's not what we have here but looking back at what it sees and did in expressing approval with knowledge about the thing that was done at the time so absolutely your honor is correct that our argument is that the the record was closed that's the record we have when you make a further point that it was very refreshing you can see in the course of proceedings that we see that by an officer of the bullet it was appointment was in question well the case was on appeal the attorney general ratified that final rule and that was was treated as resolving the matter notably on the merits not not as moving the case but resulting that intent is intent to approve the thing done not intent to correct a particular problem with the thing done there's no case to suggest that it needed to be with reference to an alleged appointment clause problem at the time always shared by the commissioner and the secretary was delegated to her by a bomb and it has recently been revoked so as of september th the secretary has announced that he will be signing all rules coming out of the department so i think inferior officer at the time she could always be removed with very little showing or reassigned by the commissioner or h h s and as recently happened her authority could always be revoked simply by  issued in every delegation docu document automatically invalidates any possible form it's clause or other challenge that could be made against anything the agency has ever done and then there fallback argument is that an official can selectively ratify something that has been challenged in litigation while ignoring the evidence us before him and this means that the plaintiffs must be to my relief if that is upheld there's little reason for any plaintiffs in my clients or any other or any other person that that as a matter of discretion the court will accept ratification in circumstances where it's clear the outcome of the end of the day would be the same that the agency would just reissue the same rule or make the same decision should occasion here the government can't before the official at the time would have had to be considered here it wasn't therefore the official didn't have the authority to ratify i see i'm out of my time thank you sir for thank you thank you council will take the case under a