breathtaking and i use that phrase advisedly it asserts that the appointments clause in the statutes governing vacancies are effectively an enforceable everyone can agree i think than are facts at the least has the outer boundaries of the constitution and the governing statutes for the st time in american history the president displaced a senate confirmed deputy with a mere employee and did so by overriding an on point law governing that specific office but the government says that even assuming those actions agree just leave violated both the appointments clause and the statutes the courts are powerless to do anything about it it argues that any time a designation is challenged the president can name a successor who merely needs to quote unquote ratify his predecessor's actions and indeed given that these challenges are two temporary acting appointments which almost always last just a few months i think every case will surely become moot during the years it takes to litigate the challenge think the two principle issues for the court to confront in the case involve the question of whether we have accepted or challenge the ratification and if we have challenge to properly whether the ratification was valid on one hand and the erroneous leave that we had conceded the validity of the ratification by attorney general barr and i think what happened here was a pleading glitch if you will and that is the court disposed of the case through the government's motion for summary judgment  and on that basis the court kind of went off and eliminated a very significant body of our claim of course it's quite important if the action is going to be ratified if the adoption of the rules going to be ratified and we challenge the no i think that's it is fair that we do not ask for the remedy of the ratification itself being declared invalid but we do challenge the rule i think it and to be clear i think it is fair that it would be even simpler and more straightforward if we had added that claims in the complaint i think it's a perfectly fair criticism but when it's the case that our pleadings have to be construed in our favor when it's the case in the district court we made this precise argument and when we are challenging the what do we do with that in terms of how we consider your arteries sure so if i could deal with the standing question there is ancillary issues in the case and i'll deal with them both interesting to put them in order there's an ancillary issue in the case joe johns here about whether you measure our standing from the time of the initial complaint or instead operative amended complaint in the this court does not resolve that question the th circuit is the case the court that has dealt with it most directly in southern utah wilderness and i think they correctly recognize that when measures article three standing from the time the complaint is adopted it's particularly fair to do that when we are dealing with actions that are kind of moving on the ground we filed our complaint the attorney general are comes into office the rule is ratified i think it's pretty fair for us to then not to lose our standing just on the basis that we end up filing in amended complaint but in terms of the remedy that we seek i do think the complaint is fairly construed as you said prospectively and that is to say we want the rule declared to be unlawful and that's fairly encompasses a determination that the ratification was unlawful again i'm i don't mean to be saying that it couldn't have been done more clearly what i am saying is that particularly in light of the fact that we make this argument quite expressly in the district court and it is and i will say that there is one of the district court that has faced this issue and that court gave us leave to amend to add a specific allegation it would seem  entirely efficient use of judicial resources so porous out on this basis because to be honest all that's why to happen is that we end up pre filing with another plaintiff in the same court making the exact same allegations because there is no obstacle to us doing that and so just as a matter of fairly considering our pleadings and the efficient way of dealing with the case i would suggest addressing the ratification question let me ask you this a primary with respect to the no because of the voluntary cessation doctrine assuming that we are wrong or we have raved waive the claim under section three thousand three hundred and forty eight dollars there remains the fact that we have validly challenge the rule and if the government voluntarily ceases the policy that we're complaining about which is the adoption of the rule by an invalid lee designated official then that case can go forward so that i think is are are safe i'm i'm i'm feeling wilson but i don't understand what you mean by voluntary association challenge we have not challenge the rule in the abstract and that is we have challenge the adoption of the rules it's an a p a challenge for example we have challenge the adoption of the rule by an invalid lee appointed official that's how  would have to work in this context if we are wrong about that then every single i'm causing a conservation to struggle but i believe that the that's the right way of conceiving of it and that is to read it but i think you're moving into your general challenge to the policy rather than showers to the particular rule because of its value ratified it's in effect and that's the end of the floor that well one of the not getting i think you're not getting the nature of our challenge and that is if we were just challenging the existence of the rule of well not that is is the rule in place then i can understand the argument that that ends the challenge but the application of voluntary cessation in appointments cop cars context has to operate in the way that under striving and that is this nation will want voluntary sation of the adoption of the rule by an invalid li appointed official so now it is a different rule for appointments cause for voces it is now a rule that has been adopted or  by an official consistent with the constitution and so our point is that if that's not right and there are no they're never going to be appointments cost challenges which is the opposite of what the supreme court has instructed because every single time on the view that that ends th case every time you challenge a temporary officer there successor comes in and says waves a flag and says ok i agree with everything my predecessor did that that is what is voluntary cessation means in this context you  intends to engage in the practice in the future and that's why i began with the fact that if you look at who the attack acting attorney general is right now that isn't that but then you're you're sending the owner into the question of a broader of the operation of voluntary cessation is not that the question is the ultimate act by the officials here the adoption of the mumps are rather the constitutional violation is the designation of the official mr whitaker as an acting attorney general when he's an employee and contrary to section five a weight that has when it has been voluntarily ceased that's what our complaint is about fundamentally that's where our rights are violated our rights aren't violated we have standing as a result of the bumps our rule but that's not the constitutional violation here and so the way voluntary cessation works is if that official who has been unlawfully designated is then replaced and you eliminate standing through that mechanism that doesn't end your case and the way i think to conceive of this is just to ask if the government is right and if your conception of voluntary cessation is right will it always be possible for the government to end that the temporary appointees practices and eliminate every single of woman's cause challenge in every single federal voting rights vacancies act case and it will because all that will happen is that every time because it's a temporary official when their permanent successor comes into office they will waive their hand and say everything that my predecessor did i now embrace i have ratified that's the entire purpose of them and terri sensation doctoring if that is the opposite conception is true then you will never have any of these cases adjudicated despite there being structural  conduct and here the defendant was the acting attorney general but the people who see if sed the practice of having this person acquainted in this matter what was not the defendant it was the president on the s nominating and confirming somebody else so well why why is it appropriate for us to think of that conduct as voluntary association within the meaning of the doctrine a couple of reasons the st is we do disagree with your conception of how it's ordinarily described maybe it's how it's ordinarily described but when the court actually confronted that question in the demaris case it came out the opposite way and it said despite the fact that what was ceased there was the operation of a website by a rd party the fact that the individual that was responsible for the constitutional violation intended to keep doing it was sufficient to trigger voluntary cessation and that's true here both president trump and then president biden have used the same policy the nd is i think the way you would resolve that is to actually just get back to the root question of why do we have this doctrine and why would we have it in the context of appointments caused challenges and if what we say is every time a temporary employee are temporarily designated officer here the attorney general of the united states is replaced by a permanent person then all the appointments cause challenges to the to the individual who is temporarily appointed are thereby mooted then it we have come up with a rule that causes all of the problems the voluntary cessation doctrine was intended to eliminate in addition i would say the fundamental actor here is the president of the united states that's the person who designated the mr whitaker temporarily and then the president named a successor and according to the government the president could just scary item name successive acting officials and end all of these cases it's true that we sued the united states but that's a matter of pleading and how litigation goes and the doctrines relating to the immunity of the president from litigation it has nothing to do with the fundamental point that we are suing the government and the government has ended this practice so i do think the amount of the government's under the practice of all on that's your problem there we're w e're going to keep doing it i think it is a question of what the practice is we are complaining about one thing as a constitutional matter that is it is any did the temporary designation of an employee as the acting attorney general of the united states it is true that the ultimate act that gives rise to standing which is not the constitutional violation here is what the acting official did has been ratified in our view is if you allow that to negate the voluntary cessation doctrine then the doct cessation that we are talking about we do make the point with respect but that once once that but once is reframed that this is not a challenge to the ruler all this is a challenge to the practice this goes back to the original stand question if it is i think a challenge to mr whittaker's appointment we had standing as a result of the bumps rule they say that we lost that standing when mr whitaker was replaced by a duly confirmed attorney general we do have the policy related argument and i would say that the government says in the district court agreed that there was this impossible set of seven steps that would have to occur all i will tell you is that the st five are happening today one of president biden's very  was to do exactly what we complain about here and that is there was an acting assistant there was an assistant confirmed assistant attorney general for national security under foot section five hundred and eight who was the designated acting attorney general he became the acting attorney general when the deputy attorney general resigned when president biden became president president biden removed him and replaced him with someone i regard as an employee but certainly is not senate senate confirmed and so i think what we would ask is for the court to take a pragmatic view of how these doctrines operate in the court is going to have to decide is it possible to litigate these challenges is there any way that someone is going to be able to resolve these critically important constitutional and  or are they going to be effectively political questions even though they don't satisfy the political question doctrine we think it has to be the case that one can litigate these issues if i could reserve the remainder of my time so as to not un played out the way plaintiffs could have tried to litigate their appointments are appearing challenges would have been to actually challenge the mastication industry court which they failed to do is the courts already pointed out the complaint makes no mention of the ratification at least in terms of challenging it and then the only reference point us made where they said they made this argument was in the reply in support of their motion for summary judgment so not a part of the motion for summary judgment where it would have been an essential element of any and they've simply failed to do that they haven't even tried to demonstrate that kind of injury or even acknowledge that the governing standard so when you actually step back and look at the claims that they brought part of the problem here the reason they are being l certainly impending or imminent harm from those further steps occur so even if we are even if we come relatively far down the road of contingencies we're still left in a position we are where guessing about whether or not these going to swell ever be injured again by an acting official including the current acting fishel with respect to these particular forms of it actually asserted in this case so i don't think that fundamentally alters if anything it just underscores how plausible argument based on the narrative here but if the question of the propriety or permissibility legality of the ratification is in front of us what does that do to the standing question seems to me to the the way that they now want you to read it so and some of the questions really were reporting out the complaint itself talks about this period in between the issuance of the rule and its ratification and cease sort of declarations related to that situations where a subsequent official in an office may decide not to ratify a particular action may decide to go in different course or make a judgment that they don't want to engage in that sort of stuff so you know there were very well may be situations where these questions get looked at it and i think it's also takes us back to the underlying point about ratification in the circumstance which is that ratification isn't fundamentally about move ratification operates generally on the well this rule was improperly issue it would have failed them precisely nothing right there will remain in place the only basis they have the only future injury that they can possibly assert is if they want to have a stock in the future but of course that's going to be true whether they prevail in this case or not they will still not be able to stop because the ratification would be valid on that theory sort of injuries decision theory which is precisely why voluntary station just isn't  foundation decision from the st circuit i would encourage the court to look at the procedural violation in that case where the government went back and did notice and comment will making after the objected to rule and the st circuit said you can't get out of challenges in that way by simply going through the process again otherwise the challenges could never be litigated in judge hunsicker i think that the answer to your question that you actually got how can these claims ever be litigated honestly was they cannot because the of my friend's time was spent saying well look we ratify the thing these people are always going to be subject to the mom stock rule nobody can bring a claim that's exactly our point i do think this comes down to the question of whether the court is going to say look we recognize that the plaintiffs made this express argument under this express statute section three thousand three hundred and forty eight dollars challenging the ratification but and it was fully in front of the district court there is no prejudice to anyone it's fully briefed here but despite that fact we are going to say that it is out of the case that it was something that had to be cleaned pleaded as a cause of action the only upshot of which is going to be to cause us to go file a new complaint and we think that that is and i don't understand the government's argument to the contrary just a wildly inefficient course of events when the court itself has the authority if it wanted to to simply allow us to amend the pleading in this court on a question that is fully litigated i just don't understand what the point of any of this cessation and i understand it's a click ability the reason i focus on volunteers as ation is it puts the shoe on the other foot and that is the government in ceasing the practice here in removing mr whitaker as the acting official has the burden of proving that it extraordinary rigor then the answer is no ok i cannot prove to you that the acting attorney general right now is about to adopt a firearms regulation that will affect my client but no one will ever satisfy that standard if that is the rule if what we do have to prove i think has to have suffered the initial injury the doctor and requires them in the st place to have been hurt so we can't just be anyone with a generalized grievance it's a way of protecting the doctor the jurisdiction of the courts so that it isn't of a did by the executive branch which is avowedly what's going here remember the executive branch tried to get mr whitaker to sign nothing at all and then mr barr frankly stated on the record that he was ratifying the rule to eliminate the challenges to the whittaker appointments but if  supreme court cases are full of capable of repetition it evading review doctrine where they say but it should be capable of repetition the end of a review with respect to this particular plaintiff that's right i understand that of course the voluntary cessation cases are even more or at least as numerous i should say and i think on our side but with respect to voluntary suspicion where you have to focus on i think is the constitutional violation that's what has to be capable of recurring in particular if you apply that rule to require not merely that the constitutional violation the unlawful appointment is required but that i can predict to you that they'll be another official that will adopt another rule affecting these particular people then the doctrine meaningless then i think everyone agree that it can never apply and the courts will never have jurisdiction well you know it seems to me that there could be some jurisdiction you could do this if you want to damage suit which seems now not to be what you've got that is to say of someone who's complaining well your honor if we haven't done so i think you'll find a hard time finding that anyone could do so and that i think is the fundamental problem of the government's position it is not unique to us right is it a question is can the government and every functional lawsuit those what that that's what the doctrines are intended to prevent so i take your point about the damages you but i hope you'll take my point that if that's not possible then i really do and making a and important point and that is that the government shouldn't be able to immunize itself the executive branch when the challenge is fundamentally to the executive branches appointments practices of evading judicial review that question