eleven eighty chase criminals in this court i believe the state of them before smart the statute is a criminal statute so if you think gov is a little over the top i apologize for it but the d o j is here today to help brooks brothers achieve that goal but your it's not just rhetoric and a lot of your argument as i understand it hinges at least one of your arguments on the notion that the lower court a sexual way to deal with improper pardons well if you pardon something that realize that i think the district court came to the conclusion that congress has the power to grant acts of general amnesty and i don't believe that the constitution did they grant that act in general amnesty i think this is change the law well the effect a law is in my in my opinion a part when president when when when candidate and later president carter pardoned draft resisters during the vietnam war era he didn't sit down and write down the names of everybody that granted that relief to and neither does the content of the statute it's a general statute that relieves people who have violated the law from the impact of that will so it is in my my opinion a pardon there is no part consistent with our respective oath of office which panel should join me in defending the constitution by holding that new to ninety two was unconstitutional on regional pardon ex post facto takings and seventh amendment preservation cl read anything in my appeal i did not raise before the district court all of these issues were raised before the district court brooks brothers and the d o j have taken the position that certain my arguments should be ignored and not reached because they were for the first time put into a brief for this court knows a reply brief is filed by a moving party in closing support of the movie party's motion i didn't move to dismiss my complete this court order judge trying to address the merits of the case including the group's brothers motion and date and later filing numbers and my own case and then instead of ruling on brooks brothers motion he brought on a grant of his own motion so i don't think that i'm moving party i don't think that you should fail to reach any of my arguments because my brief may have been titled  flores which was an origination case i think the court said quite clear of the supreme court said quite clearly that the president's signature on a law doesn't turn let's say for example of a law that violated the first amendment the president's signature on the law doesn't necessarily president can do that that's exactly what i'm saying and just as the supreme court held you i'm sure added up with that article two years affirmative grants of law enforcement appointments powers to the president precluded congress from exercising similar powers so too should this court poll that article to use affirmative grant the pardon power to the president precludes congress from exercising that power additionally insofar as the president's pardon power is limited by the common law in that like the king's power don't you also like standing because you're not a competitor well no i don't think the statute says competitor and i think that congress is predominantly a lawyers body and we presume that our elected officials understand how your injury as a competitive injury will and what do you think that work rules that you would like to read it out of the i don't want to know i don't want to read it out of the statute but i don't want this court to read competitor tore into the statute as judge signed i have because parliament may have had the power to release the informers interest even after the plaintiff commenced suit however they cite no aspect of the constitution that any measure pardon power in congress nor that they cite any aspect of the constitution that divides the pardon power which we president the president and congress i think that the only possible construction of the two ninety two is one that suggests that there is a divided pardon power and that that portion of it that is possessed by congress is greater than that portion of it that is possessed by the president i think the statute unconstitutional in both respects as i said that the d o j cites no aspect of the constitution that that's any measure of pardon power in congress or any aspect of the constitution that divide first congress abolished the key can action in second congress changed the substantive liability such that people are no longer liable for marking a product with its own patent number where that patent has simply expired congress made clear that both of these changes are decide the outcome of a lawsuit it's not a vested right such that the takings clause would apply when someone filed a lawsuit obviously a risk that's built in is that the law may change rules that they may lose the lawsuits and up to the minute i mean the well accepted law for hundreds of years that if the law changes during the course of your lawsuit your lawsuit ends and units the extent that mr staffer may be trying to back door in some sort of a due process challenge saying he has some kind of a right and it got taken away from him that's something that i think this seems to have more for a little bit between this report between his briefs here he did clearly raise the pardon argument in response to the order to show cause in the district court said let me ask you one question just speaking theoretically assume the court were to agree will because in part it would depend on exactly on what basis the statute were struck down just you know for example mr selfridge pardon argument as i understand it certainly as it was presented to the district court i think it was presented in his opening brief here and really if i'm kind of following his reasoning essentially what it means would just be that the portion of the statute that would be invalidated would i think be the portion that makes the change in substantive liability applicable to pending cases invalid now obviously as we know in our brief isn't a question as to whether that would actually apply to opening civil case or only to and in criminal cases but just setting that aside if that is the kind of scope of his pardon argument then nonetheless h lawsuit would be over because he still would have to keep his action that could continue in his reply brief he seems to have said that his partner can actually applies also to congress is having abolished to keep him action i don't quite understand how it is that the logic  gets there but i mean you know i suppose that if that were the case that if you were right that there are some as applied constitutional problem with applying i suppose any of these changes depending lawsuits i mean obviously your honor fo just shows how sort of strange that said and the fact that it's very weird to be asking these questions kind of shows up early entrenched it is that congress can actually change the law and that those changes are applied and in cases which is been accepted since the beginning of public ok morning let's look at this pardon argument and take it to the end of the argument if stauber had recovered to judge a civil judgment a civil penalty here and make whatever arguments it could now that there's no pardon at the end there so it's certainly no pardon to begin this is not a pardon power this is simply greed decriminalized certain actions and i don't see how you can argue it's a partial brooks brothers are not criminal i'm a trademark i'm not a criminal or if this is a criminal statute i'm in the wrong place and i don't see how it's to be a it's like that declaratory judgment action it just gets you into the court stauber had no interest in anything i'm still he got the judgment and he did and you can certainly see that in brook where the this court said to ninety two applies to pending cases is set those that have gone to judgment this one is not going to judge now if you take a look at two ninety two it's just kind of interesting that the it's a bipartisan effort to get rid of a problem and what happened was nobody in washington agrees on anything but this when eighty nine senators voted for to ninety two six said no nine percent in the house three hundred  irrationally when they did this all they needed was one rational reason to apply to ninety two the pending cases and they had thought look at the legislative history one of the reasons was simply to reduce frivolous litigation came at the end if there was a decision the end there would not have been pardon they didn't a limb a name a causes of action for criminal acts if they are criminal acts they simply said you didn't have the right to bring it but write a competitor if there is truly competitive injury here you saying that the government doesn't have the right so when the speed limit changes from fifty five to sixty five all the people that are driving sixty are doing something that was illegal before but not illegal now well the government has a right to make that change the government has the right to make prospective changes and all the congress does not have the right to retroactively forgive past offenses against united states or the president i don't really think that they did and i'm confused i think that congress all the time changes the laws and makes it and make it retroactive and so why isn't that the same thing here well because the pardon power belongs to somebody to be the b o j is argue that it's argument either i'd be happy to accept my congressional pardon and i challenged the constitution help but only the president has the power to do what the statute does which is to wipe out groups from those past live bilbies for marking their products with expired patents that's why it's you just for you finish your word my discussion mr jed do you agree or disagree with him about what he said would be the end of the world consequences were we to agree with your argument i'm challenging the