not i wouldn't lead with that argument either the district court is right or the district court is wrong under an abuse of discretion standard can you get to the merits and right turns on one question why the good apartment of education with its legal and political obligation to weigh competing interests its own interests in preserving flexibility for future decision making and its eagerness to accept a procedural victory in this case may in adequately represent proposed intervenors who have a single minded focus on ensuring the broadest possible free speech and due process protection on college campuses in interesting curtailing the flexibility of the department of education by demonstrating that the final rule is consistent with the constitutional floor and multiple interests in avoiding the procedural ruling on this console when you cut what you cut through everything you just said what you basically what i pay sickly come away with is the proposition that this regulation of these regulations are being defended by the department on a grounds that that like to be in the case to was sure it with respect to the validity or constitutionality of the regulations and to me and my immediate reaction is that we wrestled with this question or a virtually identical question seven or eight years ago when the massachusetts packet sure association case and held that that didn't make any difference that the government agency was a proper representative and the private party always had a separate series as to the status of the regulations put a short that theory by way of this different argument this additional constitutional argument of course that's not true in our case we also have our argument directly subverts the institutional interest of the department of education which is what this court said claims are directly relevant to the issues presented and the additional constitutional question so my take on it is you want to be allowed to enter van as bright so you can convince the district court to abandon the rule of constitutional avoidance and instead reach out and decide a constitutional issue which the agency has preferred not to advance why would any court of appeals ever do any such thing right i think i respectfully disagree with that characterization i think we are actually imploring the district court to take a posture of constitutional avoidance of our constitutional arguments assuming that they are true for the purposes of intervention assuming that they're accurate and right for the purposes of intervention they could change the statutory interpretation of the plaintiff's a p a challenges they say that you know you want to bind any success as administrations to your constitutional view and  you're afraid with the change in administration and coming out that possibly the agency well x series size its rulemaking a sorority and a different way and you want to stop  happening again i know of no case that says you are entitled to an intervention as of right on that basis and going beyond that i can't imagine well we don't have to face the issue in this case of whether permissive intervention would have been appropriate but i have to tell you i doubt  those circumstances it would have been appropriate well just to clarify our position it is not the department has no discretion to depart from this rule it is that the rule as it stands right now is commensurate with the constitutional floor of no and yes you're saying it's constitutionally compelled and that any such ruling would presumably be buying on future administrations isn't that correct that's correct and i think that demonstrates the inadequacy of the department's representation they obviously have institutional reasons not to tie their hands but the constitution does and it should be addressed in this case well there's sort of basic article three issues about not reaching out to bind the other two branches of government with unnecessary judicial rulings on constitutional issues so i think your theories are actually quite dangerous our theory our theory is twofold one it has the constitutional element you're talking about but also in the constitutional avoidance sense eight the district court interpret in title nine or the cleary actor any of the other things the plaintiffs invoke could not read those statutes to require a more speech response strict of more due process restrictive rule under our theory so it is not an additional not simply an additional argument and it is also relevant to the statutory question in this case her i understand your presented your and are venturing now as a right do you want to say anything about intervention yes i would your honor i know you noted that at the outset that you're not really moved by the one sentence order from the district court but it really is important to know that it came after zero briefing not even positions from the parties and after the district court in the district of columbia had granted permissive intervention on these exact set of circumstances there is no way to review or respect discretion that we don't even know is face of a docket entry or other order that is on the loose sedating on the face that we still get the district court the margin of it's of its discretion  itself there is no record here there's no positions there's no arguments there's no opposition the team mobile order set and see if i might i don't understand there is the compliant yeah there is your theory of intervention what do you mean there's nothing in the record no nothing in the record that would oppose a permissive intervention and there's no arguments that there certainly rights but but you look to the record to fill in what the district court must have been thinking i think that's the language used in katherine around her and we don't know what the district court must have been thinking because there was no record at that time and it is our position that we meet your device attorney chad if you could unmeet your device and introduce yourself on the record good morning your honors may please the court michael trying for the plaintiffs the movements in this case cannot distinguish themselves from the movements in cases like massachusetts food association and t mobile or the countless other groups that have interests in case of great public importance and district courts are not required to grant party status to all groups in this position and so the district court here did not abuse its discretion in denying the motion to intervene or dress the intervention as a right issues before turning to permissive intervention on intervention as of right church tell us absolutely right that this is not the st time this has confronted a prospective intervener that wants to jump in and supplement the arguments made in defense of an existing party's position massachusetts food association is just one of several cases that squarely on point here and i heard my friend from the other side this morning i tend to distinguish massachusetts dissociation in a couple of ways that were raised in the briefs so i'd like to address those now so my friend on the other side said that in massachusetts association there wasn't a divergence of interest because here the to subvert the department's interests and i think actually the same argument was raised in the briefs in massachusetts through dissociation the prospective interveners said there that the government didn't have an interest in making a constitutional argument that the movements wanted to make in this court was unmoved and that also even if you wanted to look beyond massachusetts food association i think certainly what my friend on the other side said about this case could be said of the name case where you had environmental groups arguing to limit the government's ability it's the government's flexibility in environmental regulation because the groups there had a single minded interest in greater environmental protection a friend on the other side also said something about the ability to file an ambiguous brief and i think that point squarely cuts in our favor nowhere in the briefing that the movement submitted in this court or i think this morning did the movement even attempt to explain why they couldn't just offer their constitutional theory as a meek and that does not turn on permission to file an advocacy brief that would be a terrible rule for any court to adopt it may be a plus factor here in favor of a firm and but you don't seriously want to argue that it turns on the question of filing an atm a spree your i want to be precise about what we're saying all we're saying is exactly what this court said in massachusetts food association which is that one up a perspective intervene or has a supplemental argument that they want to make and they can also make the argument just as well an amethyst brief that does not satisfy the prospective interveners burden to establish and another reason is the one that your honor alluded to in your questions in the st half of this argument about the nature of the constitutional argument that the movies are trying to make here so this court sat in cases like me and students for fair admissions that another thing the court looks to when you have a movement trying to make these sorts of supplemental arguments is whether those supplemental arguments are obviously necessary to the shared to the shared result and here one of the many reasons that the move is constitutional theory is not obviously of the plaintiff's claims and that the government has already regressed those are the more direct responses to the plaintiff's claims and they're already being made by the existing party in this case so for five minutes remaining so for those reasons i think the district court's denial of intervention as upright on the adequacy problem was squarely within what this court has already howled in massachusetts through dissociation and maine and the other cases and i also want to be clear about that the standard review which several of the questions touched on this morning under the abuse of discretion standard of review that applies here the burden is on the movements to show that the district court only had one permissible option here that it in making the judgment call to other groups that might otherwise just participate as a mickey to insert themselves in mandatory parties to the litigation i'm happy to answer other questions yeah i'll tell you the concern i have  not in this case i did have it in the main case it's sort of a hypothetical concern but sometimes especially on these issues of national importance a understaffed under funded state attorney general's office is left to defend a major national case and sometimes they say gosh the arguments aren't inconsistent we do think we can do an adequate job in terms of sciri but we're just outgunned here by the arabia of counsel on the other side so we don't think they can intervene as of right but we're asking you court  them and as permissive enter gainers because frankly we need their help they're on the same side of the issue that we are so i just now on permissive intervention as i said this case doesn't really raise that concern but do you think that something that a district court can consider on permissive intervention is not present in this king's the department is now on it and a vigorous defense of this rule is filed many extensive briefing it sent a senior department of justice lawyer to argue the case at trial and so i don't think there's any claim that could be made and certainly the movements haven't made it the department is not vigorously defending the rule in this case and so i think even on the permissive intervention issue we need arguments to the district court that it should i deny permissive intervention here and and but as i was saying about the state of review it's not our burden to show that the district court was required to deny entry here i am not never worried about the department of justice being undermanned with or under woman  lawyers and not having adequate resources but very frequently out here in the hinterlands of the circuits it is this state attorney general's office which gets landed w defending these lawsuits and the justice department frequently decides that they're not going to claim a role in the case so that at some hypothetical concern not really raised and th case but i thought it was worth mentioning absolutely or are and i think that i think it absolutely makes sense if your honor was concerned about that better solution to that concern is a very broad discretion of the district court has under the permissive intervention standard but in this case that broad discretion that's where lee in our favor are in favor of affirming that just for court because the district court's decision here was squarely within its discretion  as the movements don't even seriously contrasts with a move in some permissive intervention aren't aren't disputing that the conclusion that the district court drew denying prisoner permissive intervention was within its discretion on this record even the record that was before the district court at the time they just want to remain for the district court to give more reasons but the discord already in its order gave two reasons the very two reasons that this court relied on in massachusetts food association in affirming to deny all permissive intervention probably situated sufficiency of interest and probably situated are satisfied in this case and it all comes down to adequacy of representation for purposes of this appeal i'm happy for the court to assume that because that's all the appellants have asked the court if you could reintroduce yourself you have two minutes thank you alexa both this for proposed intervenors i'm just three quick points to make on rebuttal your honor st i wanted to clarify in case i misspoke we were permitted to file an amicus brief that was part of the order my point was that that didn't sufficiently protect our interests we couldn't have raised new arguments in that amicus brief under this court's case law and the court when a blanket is required to consider them in any event it also w given us the right to participate on appeal or in oral argument all the all of the other factors that go along with being a party nd while we maintain that the department's representation is an adequate if this court disagrees we respectfully request that the court know in its opinion as it routinely does that proposed intervenors would have the opportunity to renew their motion if the department's representation ever becomes inadequate why i was sorry i know we've done before but why would we do that well your honor i think if they depart that out that suggests we're dealing with some future case which we don't have and front of us that's right in some sense but it is this case in the sense that that's that's part of the whole theory about maintaining flexibility to to maybe not defend this rule in the future this court has has noted the ability to renew a motion in c ok well we would encourage you to do do so just so it's clear in that they do now and then finally my rd point your honor is is is just a note our strong affirmative case for permissive intervention that may have gotten lost in all this where repeat players in the st amendment and due process feel to be able to assist the court there is no possible delay from our participation and it would limit spin off i'm going to go away thank you wait wa point thank you very much ok that's case but yes judge that concludes arguments in this case attorney faults assent attorney chan you should disconnect from the hearing at this time