prevailing parties in this litigation and as such there's a presumption that they are entitled to attorney's fees or the equal access to justice act unless you government can prove it can be gets burden of proving that its conduct that both lead to the litigation and its  during the litigation itself was substantially justified and here the government cannot meet that burden on either ground the supreme court appears to be under would explain that the test for determining whether the government was substantially justified is quote whether urging the opposite possibility of success and quote it here that there was no such possibility the government id mission knowingly and purposefully violated the constitutional rights of my clients and they'd never sought to defend that conduct all right the justification for defending your skates with equal access to justice act you are required to look at the litigating position of the united states and i understand your argument to be there once the president decided unconstitutional or not just because the executive branch and opposition i will say too many members of congress makes a decision does not mean that the cases  well the issue is really the litigating position of the united states have the government taken the position and probably just to judge which the problem is the government is now well i got a position and in this case that it did not take it is true that it was a five four decision and windsor law doesn't deal with cases like this isn't it really artificial to say that the president's position was that the law is unconstitutional and president took the position he believed the law was unconstitutional when he did believe the matter should be submitted to courts to be determined now that it seems to me is the position of the united states when the king court as a practical matter i think a very artificial distinction in saying your position on the constitutionality of the statue can be divorced from the presidential respect ruggedness of your branches with your i think that's a situation that arises in almost every unconstitutional he should stop it shouldn't happen and the president has that authority the same way a police officer that's making sure i use unlawful use of force or not you want the police officer not to shoot first but if times when the executive indulges in the presumption of constitutionality of statutes impacted by the legislature and defends them in court even if there's an branch says face value and here it attorney general holder's letter of february twenty first twenty thirty thousand a letter to congress sleighs out the d o j position which has always been he says its laws didn't practice if any reasonable argument can be made in defense of the a statute that a cutlass policy is to make that argument that the president any attorney general the president here up is to be a conservation law expert concluded that this were there was no reasonable argument that was the government's position now maybe four members of the supreme court thought they were wrong maybe they thought there was a strong argument that could be made on the other side well you also had a situation here where you're dealing with a very we was terror in cognito as the church has just pointed out there in terms of the law where the congress of the united states recently had an act of the statute that had recently made a determination therefore the statues constitutional isn't the president in those circumstances and titled to show some respect for the decision of the other branch and say despite my personal reservations i believe that the integrity of the process requires decision by the executive judge ripoll has rightly taken you up on what that decision actually was but i do you seriously think congress intended to add to the power of the president in this situation when congress was on the other side of the issue this is a unique fact is but i don't see why we are required to give deference to the executive and look only at their position when it refers to the act refers to the government well i mean the general holder had taken this position and the president decided to stay out of it i mean these were the tical choices were made well if they had made that choice then we would have the same ca we still would about life our benefits we would have said no we hadn't gotten to that they had sat on the sidelines i think you would have the same situation essentially you'd have the government not defending a case versus what the government actually did here was to say we should lose this case but it is important it's not completely terry incarnate it happens all the time that the presidents are faced with situations where they have an unconstitutional law and the normal response is not to enforce it president obama has refused to enforce laws without taking them to court good morning may it please the court jeff sandberg for the united states the district court did not abuse its just crushing and denying the request for attorney's fees in this case and the conduct by the president which is challenged by plaintiffs here was an act of fidelity to our constitutional didn't i didn't say that i said when the president decides he's not going to enforce the law and there is some basis for certainly the president has a range of options available to him when he reasonably believes that a statute is in conflict with the constitution and we certainly believe here that the president was substantially justified in taking the tack that he took because it paid  to the congress that hadn't acted the law and believed it to be constitutional and appropriate respect for the role of the courts is the final arbiter of the constitutionality of federal law what plaintiffs are arguing here is that is unreasonable for the president to do anything other than unilaterally nullify a statute without providing an opportunity to the courts to review the question and plaintiffs are quite right that it is an extraordinary act by the president to decline to defend a law but the president did here was he was put in a very difficult position it was litigation filed in the second circuit in which for the very first time the executive branch was going to be required to take a view on the appropriate level of scrutiny to be applied to classifications based on sexual orientation and what the president determined was that operating from the principles set down by the supreme court about two years of scrutiny that classifications based on sexual education should be subject to hate and scrutiny and under that standard no reasonable arguments could be made in defense of the law of course at the time that the president made this determination no court had yet adopted or applied these principles of heightened scrutiny to classifications based on sexual orientation to the contrary every court that had considered the question and applied rational basis review several courts have since adopted heightened scrutiny but at the time that the president acted the president realized that he was employing a novel doctrinal and alice and it certainly maintained the equilibrium of our of our constitutional system of government for the believe that the president was substantially justified in the choice that he made a small chiding to both counsel we do have an on bond case in this circuit aronoff which neither of you bother questions the government would ask that the judgment believe the act is unconstitutional i'm going to force the action violate your constitutional rights believing we should get this act into a court that quote requires there to be a litigant on the other side it requires there be people like the plaintiffs in this case that will come forward and the reason  knowingly or believing that their conduct is unconstitutional that meat and takes away the good faith basis for there being a substantial justification the government strategy here depends upon litigants being able to fight and the reason all the l