political question i think the first thing is we i think you concede that there is a textual commitment of the of quite a bit of federal judges to the president in the constitution but i don't think that's the end dismissed the claim against the individual defendants but allowed the case against the government to find it's a go forward but we have to remember that these were what worth basically called the facto members of that committee issue one way or the other but i thought the issue of here's this is what's on my mind and perhaps you can dress it after alexander versus sound of all aren't we lower courts required to look to the statute of the issue and find that there is an explicit determination by congress that they're in provision for the private right of the action i don't think so i think the situation is the end of all is quite clear because that was part of the civil rights act of one thousand sixty four where there was no private right of action in title six which was it's basically stuff for the government to enforce but instead but in the same a right of action in title six in the court had you held that you held that that that was the case as far as title seven goes there is an expressed right of private action in title seven they are both parts of the same axis of the point being as you can see if there's no private right of action title six but want to title seven most likely therefore intended to make sure that there was a  sought a private right of action under an act of congress where the text didn't provide for that but the court permitted i think cheney second and cheney's like case because cheney the lower court went ahead situations where fox has been held to apply or not to apply which is which is another one of the response arguments that is they say that in cheney you had a situation where you had to factor in at least that application maybe in others as well but here this case is a much easier one for determine whether or not there's an advisory committee that is a question is whether  or established by the president now it doesn't mean that they don't respond so comported everything right out and say that the president doesn't utilize the committee they pretend to not know what the word means as fight ten friends over and invite people who might want to be judged from over and sit around to talk to me and see if afterwards i like them or write a letter to the president saying these are good people you might want to look at them it what would that be wor here and i think this is i think i think that this report probably erin this is something that we should probably go back down on remember further discovery and that is to what extent the president utilizes or establish the advisory committee and since we allege that the advice that it is an advisory committee i think the court's required to take that allegation as true but to the extent that they dispute that this is something that should go down on the like in the cheney case go down on a more diverse and have a more developed president and the president appoints them i think i know what number that is and i think it's one hundred percent on the other hand i think i know what the number of people who did not go through the jay q c advising a dvisory committee of process and i think i know what percentage of those people got appointed to the office and that would be zero percent but i think i think here that if the if the court president directly involved it's not an advisory committee wants to save some time he understands the concept of senatorial courtesy senator boxer senator feinstein may not have the time but they've got trusted advisers four or five of them in the room and downtown in a conference room of downtown los angeles and call that room and ask them their views well i think when he does that he creates an advisory committee and he can do that but then he asked to also do the other things the federal advisory committee i act by adding more than two people to the receiving end of the conference call he's implicated for well i think it's similar to the it is the answer that yes i think it's similar to into the white house on the other hand you have setting up a screening committee with a structure which we vets nominees you know one point is clearly not implicating foka on the other and it does thousand dollars apiece to be there was there any implication of talking it doesn't appear that there's a form of an advisory committee and that hypothetical and that's i think that's different than the us well it's closer refers to as i understand it was formed for different purposes by the president himself to aid him in the consideration of an important public policy issue namely reform of the nation i would certainly agree and with regard to this particular appeal we think it is properly disposed of by the concession and this to man's heart made in his briefs and opening before this court today he stated here and there that he has conceded the existence of a textual commitment to the president and the senate he contends however that the existence of a constitutional commitment is insufficient and that in order to find the question in this case this court in addition to finding a constitutional commitment would also have to find that the application of fica to the facts of this case violated the constitution he cites no case in which any court has adopted or even suggested that approach and the existence of a constitutional commitment is readily apparent in this case the appointments and rules of proceedings clauses of the constitution do commits to the senate along the means and processes by which it discharges constitutional duty to provide advice and consent the trial court thus correctly held that the procedure whereby senators formulate their recommendations and advise the president within the legitimate legislative sphere the senator defendants are absolutely immune from suit finally your honor the dismissal against the senator defendants should be affirmed because  of the statute as the supreme court explained in addition mr man's heart cannot establish the second and third requirements of article three standing namely that his alleged fata injuries are traceable to or of rest of all by the senator defendants members of the legislative branch of government the legislative branch like the judicial branch is expressively excluded from fox's coverage fock imposes no duties upon members addressable by the senate or defendant unless you're honest of any questions with regard to that or anything else i see no thank you for your argument we'll hear from your  has he asserted any constitutional right for that to occur she has argued a separation of powers claim that has been abandoned on the appeal and as the complaint currently stands there is no claim other than the not only are are no those factors addressed in the brief by power but also he's alleged the entire theory of the complaint is fundamentally inconsistent with one of those key factors which is strict management control the twenty of the complaint says defendants are depriving the president of any input or information on the process it is inconsistent then to those allegations are inconsistent with any way of arguing that the president then has strict management   the d c circuit case we cited in our brief and then you can also see that from the structure of the act itself you have a number of very important functions under the act that are vested in not just a couple of things on the issue of whether or not there is a private right of action if the court were to and i think you think that there is support in cheney for a private right of action but if the court were to hold that there were no private rights act where the government certainly can enforce the the rights in that statute here there's been no there'd been nothing there'd be no one to do it and it's not completely unknown for the court to case congress you know they've noted that section one hundred eighty three this not apply to the federal government but at the same time that there are certain rights in one thousand nine hundred three that is if state governments are allowed to deprive people of their federally protected rights neither are the federal government be allowed to do so as well so the fact is that what we hear when we have the parties basically conspiring to violate the federal advisory not saying that it's inconsistent yes the committee was set up by well you know at least in part by persons other than the president but you know they say the president doesn't have you know strict managed you know strict management or control well i mean he's pretty united states i don't know that he asked strict management or control of anything basically he delegate his duties and that's what i believe he did here to the extent that they want to say that seem consistent i would just simply say that that would be something that would be easily fixed by the pleadings and the court in that case if that were if that were the case in the courts should have allowed me an opportunity to have meant it and that could still be done i think what about you you've made an argument about separation of thank both council all council for their arguments the case just argued will be submitted for decision will proceed to the last case on the calendar this morning in the deed for the week to see you have it at all versus the commissioner of internal  there's a very fine trial judge