c part one was a whole bunch of things that the trade representative is authorized to do why why did none of those because congress in one nine hundred eighty eight chose to take the power that they had delegated to the president to resolve unfair trade practices in ri delegated to the u s t r exclusively and therefore in doing so those those agreements those sections of twenty one seventy one are general authority to do negotiations with regard to trade agreements in in a broader sense but the specific ability to enter into trade agreements for the purpose way to see that is if one were to look at the way section three on one read prior to the amendments one will see that the president made the determination and then effect to a did the agreement are saying that pursuant to the  legislation it's in that legislation and what the thinking behind it that leads to the conclusion that there is no authority under twenty one seventy one right the congress was in legislative history bears this out was concerned that  the president because he receives input from so many agencies of the government the state department the defense department cetera was not being as aggressive on unfair trade practices as congress wished and hence they thought perhaps a little naively as the commentator saying that they could in the enforcement not not the enforcement they could enhance the protection against unfair trade practices by delegating your let me ask you this if we were to include that the u s trade representative acted under twenty one seventy one ok and not the other twenty four eleven and if we do not agree with your argument with respect to the nine hundred seventy four act as a whole namely that of those provisions or under the act do you lose on the jurisdictional issue i believe we i'll ask one more question on twenty one so what what if one were to conclude that in fact the us t r did act under twenty one seventy one but but should have acted under twenty divvy up that money if they and the coalition members had decided that they would have dividend up pro rata to all adversely affected members of the of the industry including my clients who supported the petition and without who support the petition never could have happened because sixty percent of the industry is required to support the petition and supported intellectual they support it in a right as they were required to do before the petition could be prosecuted in two thousand and one when the petition first came along sixty percent of the industry had to say that they supported the petition or the i p c c could not move forward with my clients were among that sixty percent and yet when it came time to for the compensatory benefit to be divvied up the united states big north of them gave no guidance whatsoever to the members of the coalition who decided oh we'll just give it to those members based on their contributions and as a result twenty three percent of the contribution of the compensatory trade benefit went to one but it that's one hundred fifteen million of the five hundred million dollars one hundred forty companies who are adversely affected most of them got zero now but well that's all very interesting except that doesn't seem to be for us oh it is before your honor it is all in the briefing thought that it would be important for the court that this was raised below the issue of whether three one applied and how it applied is intervene in the jurisdictional question although i think trade practices and that has existed off and on for the past twenty to twenty five years if we if we conclude that it was correct that this was negotiated under twenty one seventy one another  if your client left without any remedy at all or is there a cause of action in that district court i don't think there's a cause of action in the district court i don't see that there is jurisdiction i think you can ask if that's cause of action in the court of federal four we've looked at it and i don't think that's money mandating statute to get us into the court of federal claims and i don't see the jurisdictional basis in the district court so i think that the court be a stretch and i think the of the c i t v i think i want to come back to the point that i said is that there really is no dispute that the  l a was entered into pursuant to the trade act of nine hundred seventy four just really a question which section of it it's one law fifteen eighty one i says if this is a if it arises out of any law that provides for duties then the c i p has exclusive jurisdiction there's no doubt that the trade act of nine hundred seventy four provides for the imposition of duties as such on that level there is no question but that  falls within the jurisdiction of the i think we need it it's rather simple but i think that it's true where we get into the hassle is under which section did the the u s t r act but the fact is she acted even under either of our theories she acted pursuant to the trade act of seventy four and that gets us in the door at the cia real warm we as we argue with is where the substance of the violation occurs and we' tell him she drove drive her authority when negotiating this from twenty one seventy one and the constitutional powers of the president that somehow the c i ts jurisdiction is flatly wrong and the supreme court squarely address mart when they health had congress quote wish to to grant the cia jurisdiction over all customs laws and regulations it could have quote expressed such an intent much more clearly  behalf of the president what we're talking about here is an executive agreement it's not a treaty that doesn't require ratification by the senate so those are the provisions you basically look to those are the provisions that provide the u s t r the authority to act on behalf of president the president has the constitutional acted on the twenty four level it's possible those you're saying that the that the us t r was somehow barred from acting under twenty four eleven if she had chosen to do so if she had chosen to do so and she met the prerequisites which includes conduct the investigation of republishing those in the federal register and coming up with a section three a one provision that what the real one problem is you're saying she could have acted under twenty four eleven if she chooses to do taken under three hundred one because that would have been the appropriate section otherwise no it doesn't change the analysis you are but that it was a mistake error and you can see that by the case of blocking notice that the c are provided to congress after entering into yes a law that stated that that's all it was entered into pursuant to the us years general of ari and the constitution not section three a one if it was section three a one and just happened to be a mistake the us t r would have notified congress that entered into this pursuant to section three one and we're been required to publish federal register notice similarly is it really do we and it is there any indication of do we know why hundred ninety six s l a was the result of canada unilaterally withdrawing from the one nine hundred eighty six memorandum of understanding between the united states and canada the nine hundred eighty six memorandum of understanding is more akin to the s l a of two thousand if it was necessary to get to that issue to have the c i to be in the first instance address it rather than having us on number one a non factual record on the if the court found that this was a political question if this were found there would be essentially no jurisdiction for the poor of international trade to rule on and on and in matters here so it is something this court can address and we urge the court to address it if it finds that there is that trade issues of this particular case and have a court with expertise look at the first instance and also there may i don't know maybe necessarily have if we got to what some never denture a record on there there may in fact if the court were not   i'd like to return to a point that was addressed with respect to jurisdiction the posen counsel was asked if the district court would properly possess jurisdiction if the trade court doesn't and in fact a district  may not possess article three jurisdiction but certainly would possess thirteen thirty wonders the action as a as a federal question to address this issue and a perfect example of that is a case called far stewardship council which was recently heard in the ninth circuit court of appeals which affirmed the western district of seattle in holding that there was not article three jurisdiction because there was no redress ability but as you can see if you look at the district court case and far stewardship council of the united states we did not challenge federal question excuse me the western district of washington's published decision holding up various no redress ability but it did not of the question of federal question jurisdiction was not brought up by the government because we believe the proper place t was certainly entitled to but she didn't hear because she possesses the authority pursuant to section twenty one seventy one there is no evidence in the legislative history or any other evidence for that matter that congress has amendment section three a one with drew some sort of authority that the us the are possessed pursuant to twenty one seventy one the us three are is an ambassador of the united states and possesses the power to negotiate on behalf of the president and there can be no dispute that the president possesses the constitutional power to enter into executive agreements now the lumber producers argument that just because this thing the twenty one seventy one is part of the trade act seventy four i'm going to go back to kmart again and just finish my quote and again the supreme court held in k mart at forty five us one eighty eight in the society in our brief is that if congress had wished the tree fort to possess jurisdiction over all trade matters it could have hell it could've written for that the trademark possesses jurisdiction over also the actions against the government which arise directly from import transactions desired goals of uniformity and clarity by delineating precisely the particular person's merits of which the for international trade would have exclusive jurisdiction the challenge to an executive agreement is not one of those matters this executive agreement has no effect on domestic duties it doesn't require the united states to impose duties it doesn't require the united states to do anything other than it was a side agreement that the  united states would agree to stipulate cases that were pending in the core of international trade the d c circuit and the nafta and no longer pursue that and the petitioners agreed to no longer pursue the n t dumping and count and for these reasons we respectfully request that you affirm the decision of the trial or thank your arse thank you  could file for a monetary judgment there that is strictly to correct jurisdiction and also in this case though that the c i did does have jurisdiction to grant money judgments so  twenty one we cite we include a statement by the u s t r as to how they entered and wonder what authority and if you're out of the i'm going to quote it was this is the day that it went into effect october twelfth two thousand and they say that the agreement was concluded under the general authority of the u s i'm sorry of the office of the united states trade representative to negotiate including pursuant to the u s t r s authority under the industry as a whole the statute itself provides that that compensatory trade benefit should be provided to the economic sector in which the affected industry lay and we believe that that it means doesn't want us to still run the possibility that if we went that route it would be best to have in the first instance the c i t decide that question rather than have this court decided the first instance for the reasons i suggested which may or may not be good ones but they were just what i threw out what do you think on that your are and surely would be within your purview to send it back i think that the cases are clear enough and the facts the relevant facts are clear enough for your arms to decide the political question should one last thing i would suggest runners look at the conoco case which did say surely all matters involving international trade