well your argument this morning in case fifteen twelve fifty one national labor relations board versus southwest general incorporated mr acting solicitor general thank you mr chief justice and may a please the court th acts limitation on an individual serving as both the nominee and as the acting official for a single office applies only to someone who is currently the first assistant in that office and is acting pursuant to the automatic service rule set forth in  subsection thirty three forty five a one both the g a o and o l c adopted that interpretation of the actually after its passage and in the nearly two decades from passage of the act of the d c circuit decision here presidents of both parties have made designations based on that interpretation of the text without recorded objection from even a single senator or staff member general can i ask as you read this statute suppose you just took out these words notwithstanding section subsection a one what would then the effect of the statute big so your honor i think that our textual argument would be much more difficult and that the effect of the statute would be effectively to override a one a two and a three the notwithstanding clause really is the anchor of architectural interpretation but its strength i think comes not only from its text but also how it fits so well with both the history structure contemporaneous interpretation and track but just focusing on tax for a minute it'll that's true if the entire textual argument really does rest on the notwithstanding subsection a one i mean typically when you have a notwithstanding clause it means you know take away the sex subsection a one not you know close your eyes to subsection a one but it doesn't do anything more than that so why do you think it should be taken to do something more than that in this case your honor we think that because it's a routine application of the expression scan and in the context of the notwithstanding clause and so we think it has power for at least three reasons first and we're on pages eighty two and eighty two eighty three of the government's the the expressly implication is very strong here because if you read the statute on page eighty two a a one sets out the first assistant rule a two sets out the the p a s rule for a senate confirmed official  a three then sets out the act the career official or the agency with substantially the official with substantial service the very next words in the statute are notwithstanding subsection a one so after a one a two and a three congress said not standing only a one we think the express can is particularly powerful because congress could have said if we wanted to do what respondents say notwithstanding subsection a but it did not do that and it's particularly powerful as well because the notwithstanding clause as your honor suggests is one that congress uses all the time congress will say notwithstanding any other preview in the code no standing any other section of the can i give you a hypo short so the hypo is a matter restaurant and i am talking to my waiter and i place three orders i say number one i have the house elad number two i'll have the steak number three i'll have the fruit cup and then i told the waiter not withstand an order number three i can't eat anything with strawberries so in your theory the waiter could bring me a house salad with strawberries in it and that seems to me a quite odd interpretation of what's a pretty clear instruction no strawberries so you think this really is fundamentally different for a number of reasons first of all we have before us in contrast to your your waiter hypothetical we have before us the very history of this clause which suggests an interpretation very much in line with the government's interpretation so i take it you know that you have some arguments some strong arguments on on history and on practice but you know again i'm just sort of isn't that a just a curio way to understand the you know notwithstanding order number three no strawberries so i don't think it is your honor and i would a footnote the if for example you had been a root a regular member of that rest a regular diner at that restaurant and had always understood that you couldn't have strawberries with only one of those things then the waiter would be justified in interpret it differently and we have that contemporaneous practice here but getting to your honor's textual point only for the moment i do think that's exactly what this court held in so in in where there was a notwithstanding clause that said notwithstanding the provisions of the act funds did you have to rely in advance appropriations in this court said no that doesn't override the existence of the tucker act i'd point the court as well to the case cited in our briefs f c c versus mount vernon memorial park which is a situation extremely similar to this if i could just take a second on that because i think it will help that was an interpretation of the investment company act and it said an investment company is an issue where who meets one of the following a one a two and a three and for a three there was something called a b one limitation and it said notwithstanding a three an issue or is you're not an issue or in less you're in the business of issuing securities and what the court said was that the issuer who fell within that limitation the same be one limitation none the less was an investment company under a two precisely because the introductory limitation was limited to example in your restaurant hypo that would be a it would be clear from context but here we really do think that all of the other aides to statutory just as there is another explanation for why the notwithstanding clause of the one refers only to a one if it without that there would be a direct conflict between be one and a one because a one says shall the first assistant shall perform whereas a two and a three say that the president may do certain things so there isn't the same kind of direct conflict between the remainder  won and a to win a three as there is with respect one so your honor that is the argument the respondents make and we simply disagree with that we think there is a direct conflict between a two which says the president may appoint this person an acting and be one which as the president may not be a poor person as an acting when that person is also the nominee that b two is a very is a is a designation of a and delegation of power to the modifying it a bit if she if she were to sally or if i were to say to the waiter you may bring me the soup of the day but you may not bring me soup that contains shellfish because i'm allergic to it there wouldn't be a conflict of the same sort with ther between those two statements so your honor i do think that there are i do think there would be and i think in particular even apart from the restaurant hypo itself the whole purpose of a two is to give the president the power to make a designation when he believes there is a superior official serving elsewhere in the government that grant of power is every much restricted by b one as a one absent the introductory clause the the b one says the president may do this he too  circumstances he may not do this and that is precisely the kind of conflict that congress was getting at but even if you thought the text had some ambiguity here i really do think that the other reads to statutory construction which this courts have looked to which this court has looked to over and over really do  work in our favor and really not at all in response favor here the principle e if one looks at the contemporaneous interpretation and consistent practice what one sees is the sponsor of the legislation identified precise the government's interpretation responding directly to both of those with respect to see our point is not that this court should defer to it or defer to the reasoning on our port our point is from the very beginning from the moment the statute was passed congress was aware of the interpretation the executive branch was putting on it and raised no objection and with respect to g a o the g a o letter i think is quite significant because g a o recall under section thirty three forty nine is the congressionally designated watchdog for the vacancies act and when g a o issued its let which i respectfully disagree your honor i think the g a o letter is quite clear if you look at it what it says is there are four ways to make an acting appointment and for number one a one it says and you can't be the nominee for the other three it does not have that and the whole point of that letter was to give guidance to congress that letter was circulated not just to the senate majority minority committees but to the office of presidential personnel to the white house counsel's office  you're putting a significant burden on congress to sort of speak up there sort of the stoppel against congress if they don't speak up in every instance where they think some parag interpretation is is being misapplied or prague have taken away from them then there can deemed to have acquiesced in it and this is a context in which that might be particularly inappropriate because maybe the particular appointment contravenes your your theory but significant number of people in congress want to see that they can see filled you know under even though it contravenes these more general provisions and it might not be a particular battle they want to fight at that time i think it's a very serious burden to impose on the legislative branch so your honor it's that we're not imposing a burden on the branch but we are asking you not to turn a blind eye to what really happened in this context what led up to the vacancy reform act was was decades of congress raising exactly the kind of objections that one would expect there were oversight hearings there were g a o letters there were congressional research reports there were letters back and forth to the attorney general complaining about that way the justice department in the executive branch was handling the vacancies and ignoring the vacancies act then what we have is an interpretation then we have as a vacancies reform act and an interpretation set up by the author of the very provision withstanding language but even if you thought that was sort of a draw i would note that senator byrd who again was not shy and had weighed in on these vacancies actis use never raised an objection when the when presidents across three administrations continue  contradicted by one other senator and even for those who at times find legislative history helpful i think this is worth at its weakest and most persuasive so your honor i disagree and we're not really i don't i don't disagree has put this should put particularly weight on this silence here is because it reflects a contemporaneous and uniform interpretation of congress's understanding of how its own powers are being are or are not being infringed  everybody understood and has acted for twenty years on that assumption sounds like a text i was trying to make is you are putting weight on the fact that they didn't do anything so you say you've got other arguments too and i appreciate that but no one wanted they do th absolutely i know i am putting weight on what they didn't do it to me it is very much the dog that didn't bark congress had been barking quite loudly and vociferously for decades on this very issue and then it it adopted a statute that was interpreted by its own watchdog in a certain way and then the barking stopped and it seems to me this court is really ignoring reality to not it's not see that that has important w and on that point eight judges have looked at this and every one of has come to the conclusion that the respondent three so you are i think there are important consequences so first congress understood that there are often important director in the national nuclear security administration they're the folks that oversee nuclear counterterrorism when the door can senate confirmed director of that of that agency left there was no first assistant and the president president bush put in linton brooks both as nominee and to act to take over so congress was well aware that there often weren't first assistants around and i understood history about the consequences going backward yes your brief to not talk about this but do you think that if we find against you that that's objects to some uncertainty actions that these one hundred plus officials talk yes and if so what actions so your honor and it does that and that's the second point to justice kennedy question it does subject the past officials to substantial uncertainty in truth we don't know exactly the extent of it because we don't know when we'll have defenses of waiver we don't know when we might for some things be able to ratify but there's no doubt that judge henderson was talking about in particular was the n l r b situation which is a different situation because there are particular hearings and the end l r b has an ability to ratify that other agencies don't suppose quite suppose you didn't have those defenses because you know i'm not sure why you would necessarily given that the statute says there void up initio if if people take it as against these procedures so if you didn't have those defenses as you look down the list of these officials what kinds of actions are you most worried about being unsettled so your honor we have for example adams you been who is the undersecretary for terrorism and financial crimes he does  the the terrorist sponsor designations in the treasury department we have the deputy attorney general we have the head of o p m these are people who issue may issue regulations who make designations who make important decisions in the executive branch it is i think the reliance interest of the executive branch are quite strong here this is a situation we have put very senior officials in place at the with the understanding that what they were doing based on what they were doing was lawful at the time based on interpret least on the language of the statute and the interpretation for riding on it surely i mean those are all very important positions that you named but it's it's it's not absolutely clear to me that those that there are categories of decisions that those people take that we should be worried about and if there are i would like to know about those categories of decisions so your honor i can't list them chapter and verse but i do think the kinds of things we're worried about  makings by the heads of agencies the particular designations by the by the senior officials and decisions on litigation and other things that may be subject to challenge we have not gone back and catalogued all of the potential ramifications but we do think that with over one hundred officials over the course of twenty years the effects of this are really quite sort of that hundred include or exclude military officers you know it is not including th officers your honor these are these are the acting officials in the in the executive branch and i don't think their military officials the interpretation that that the court is putting forward if i could make a couple of points on the structure and why we really don't think the this is the that this is the right way to read and why our way makes sense we think what's reflected in the in the vacancies act is a judgment by congress that before an individual serves as both the acting and the nominee that there be one of two protections that the individual either have been senate confirmed before or that they need a length of service requirement so in eight to what one sees is that that's in a prior senate confirmation in a three it's a length of service and if one looks at c one which addresses senate confirmed officials whose terms of expired again its senate confirmation the entire purpose of b one is to extend those protections to first assistance so what b one does is for first assistance it puts on a length of service requirement and then in b two it exempts from that length of service requirement what the very individuals who have received prior senate confirmation the package works as a seamless whole moved into an acting position what it was doing was making sure that first assistants who were both nominees and the acting had had one of the two protections it's also consistent with the way the the legislative history is in the drafting history with respect i think is very important to the p a s positions it had been the president's prerogative expressly under the vacancies act back to eight hundred sixty eight to take a p a s officer and put him into an acting position and then still be able to nominate him the first draft of the bill preserve that so after all of the rancor after all of the unhappiness of the vacancies act the first draft of the bill allowed the loud acting officer to come in automatically under a one  s under a two and the b one restriction only applied to a one there's no dispute and so then what happened then then there was an objection that the bill didn't give enough authority to the president and so changes were made to the president more authority and what respondents would have you believe is that congress overturned subsequent without a single complaint one hundred thirty years of executive branch practice well why didn't ryan lizza do you think that that change was made then because the change clearly was made and in the initial draft and obviously applied only to first assistance and then in the final draft not so obvious at all and you know i agree with you that there is no explanation but there is a change and you suggest and it was you know just a mistake that somehow happened absolutely not your honor and if you'll bear with me i can explain it the initial draft of a one required a provided that the person be a first assistant to the officer and be one red as it does when congress congress changed that to allow the appointment of officers who were not who were after the officer dies and so they change it to first assistant to the office the significance of that is that somebody could be appointed first assistant even after the vacancy arose that was a very big change if your honor looks at  page nineteen a of the of the appendix to the petition where the bill is set out the original bill the way the bill read it it put the restriction only on the person who was serving at the time of the vacancy so if the if congress had left to be one the way it was it would have created a very odd situation where the current serving first assistant would be subject to be one but after put in someone put in later was not subject to be one so what did congress do congress changed it so that it was limitation applied to all first assistance but then it added not withstanding a one and that is the critical thing so congress did it made this change to be one precisely to deal with the after appointed first assistance and then it added the notwithstanding clause to say notwithstanding only a one and so it does seem to me your honor that it was a very important change and i think if you time and that congress understood that that's the consequence of the time limits and that they can see that what respondents are arguing is that that should only be true for first assistance but should not be true for for  individuals that the president appoints under eight designates under eight to an a three and it's that irrationality that we think the statute that it's that difference that we think the statute just doesn't justify so just to be clear it is it is crystal clear under both responde our view that an individual can serve for a very long period of time that's the consequence of the of the two hundred twenty two hundred ten day period and the various ways you can extend it the question before you though is whether it makes sense that congress decided only the first assistance could do that but there were real reasons to doubt that a two in a three were put in precisely to give the president himself and it could only be the president is not delegate the chance to choose a  superior a superior officer a better a better place the more talented officer then the first assistant it seems very odd in that sister ration to say that the eleven hundred days going to or however many days could only be served by the first assistant but not by someone mr chief justice in may it please the court for features of the f e r a's text in drafting history compel our interpretation first congress used the broad terms a person and this section second not withstanding is a of expansion it does not contract the broad meaning of person and section third the government's interpretation makes subsection b to superfluous in multiple ways and fourth at the time the congress added b to deleted language from the initial draft of b one that expressly limited the provision to first assistance the revised language in compass is all acting officers agree that person and section are very strong arguments where you circumstance that person section would apply a three but the reason that that would be a different case is that there is no meaningful distinction between a two and a three and the role that they play in the statute there is a meaningful distinction between a one on the one hand and a two and a three on the other hand and it makes sense because of that distinction the congress would single out just a one i don't get that mr diverts and maybe this follows the government's line of thought but you know i've been a one says the first assistant shall be the acting officer and then be one says no she may not be right and a two and a three doesn't use the word shall but it says the president may appoint any of these people and then b comes along and says no the president can't appoint some subset of them so the basic conflict seems to me to be the same in both cases which is that the second clause says not so fast not with respect to those people justice kagan the difference is that a one is a self executing provision automatically places the first assistant into the vacant office and b one then takes the person out eight to any three or grants of discretion that have to be understood side by side with solo grants of discretion a very broad and then b one again takes the person out takes the person out of the grant of discretion just as it takes the person out of the self executing provision before them they're brought only if read in isolation but they can't be read in isolation as a statutory matter and oftentimes the president doesn't read them in isolation as a practical matter in other words there is no way to avoid the conflict created between a one and b one because and puts the person in the job and b one takes them out if the president however simply reads a two and a three together with b one then he knows what the limitations are on his discretion and he can avoid that ripping out if that ripping out of the nominee from acting service the creative particularly stark conflict that congress sought to address through the not withstanding a one call i have to say i find it a little bit odd to think of this draft or thinking of the kind of distinction that you are making say well this is self executing and this is not self up skewed in it's only a broad grant of discretion and then not realizing that just by virtue of saying notwithstanding a one the statute creates raises this question about well you've said a one but not a two or a three what does that mean i mean that seems just like a very strange drafter to make somebody who's so in the winds that they can't figure out that pretty  obvious objection to what they're doing well perhaps one way to think of it and this goes back to your first question of the argument what if you had a statute that didn't have any notwithstanding clause at all at the beginning of the one in that situation it would be clear that person and section would make be one applicable to a two and a three there would be a question in that situation though whether b one also applied to a one first of all because of the of the conflict between a one and b one and second of all the government argues that the general vs specific canon would apply there but it wouldn't necessarily because the general vs specific canon is typically invoked in order to avoid superfluity where you have one general provision and a specific provision that would be meaningless if not read as an exception to the general here however in the hypothetical statute without the notwithstanding clause you wouldn't have that superfluity concern because b one would apply to a two and a three and so you'd be left with a particular question not about two and three but just about one and so it makes sense the congress singled out one because of the particular role that it's playing in the statute so does that see see one isn't under your reading it it will never be a no no your honor first of all the officials under see one are not acting officials they are receiving term extensions the language of c one talks about those individuals continuing to serve in the office a one through three all talk about performing the functions and duties of the office temporarily in an acting capacity the legislative history likewise talks about three categories of acting officials and it consistently talks one two and three and so see one is just functioning separately that's just a different thing so why aren't any three functioning separately from one if you see one can function separately and that was the thought of the drafters why don't we carry it to its logical conclusion so the way one is separate from their written almost identical president's major writers may appoint me they're all sort of exceptions to the rule the reason that c one function separately is that it describes the work that the official is doing in a different way it describes continuing to serve in the office a one through a three all describe the work that the official is doing in the same parallel way performing the functions and duties of the office temporarily in an acting capacity that's why the three categories of puzzle i'd like hear what you have to say i mean for the purposes of this question i'm sumi all the text which sounds to me it person came from mars that he would expect a legal argument to be like the it seems to me but this exception here is saying this we have the secretary of the treasury he has five assistance each is a presidential appointee one day sekret assistant secretary of the treasury number two guys and now the president can fill that role with any one of three people on an acting basis his first assistant some other assistant secretary or deputy in the treasury department or a g s of i got it right so far yes yes i'm using examples that now with this statute as you read it would seem to say if you appoint whichever one you choose but any one of those three people nominate those one of those three to a presidential position roughly they're out all of them are out oh wait there's one exception the first assistant is not out if he served for ninety days as first assistant if i got the statute right yes you're ok i would just wonder were it from mars what's the point of such a statue why is it you're perfectly willing to have stay there and do the acting job the first assistance if you serve ninety days before but you're not willing to have served the acting job this guy who was a g s eighteen  in the same department or the person who was a and an assistant secretary of the treasury number two why i can't think of an answer given your interpretation i can't think of an answer given their interpretation i say what they were worried about on their interpretation were our friends number two and number three the g s eighteen and the assistant secretary number two they can continue to serve on their interpretation why did they do this the name of that explanation is called bill lann lee because that was the problem that gave rise to the statute and on their interpretation they passed some words that solve that problem so there we are i get an explanation for his assuming that you like purposes more than you like numbers i get an explanation on his and i don't get an explanation on yours so that's what i would like you to respond so i'd like to respond first of all to why it makes sense to treat first assistants differently and second of all to bill lann lee and how that is relevant to the statute the legislative history explains in multiple places that first assistants are particularly well suited to be the acting official because they represent continuity and regularity in the office we know from the one that congress was concerned with at least some acting serviced by nominees and the reason that it created an exception for first assistance even as nominees is that they are the least likely to represent change in the agency it's just the deputy being pushed up one spot and that's continuity and regularity on the other hand particularly when congress added for the first time in the f b i are a this category of g s fifteen's potentially thousands of employees within an agency there's no accountability there to congress and there potentially a much greater concerns about those individuals serving as acting officials while the nominee the facts of this case illustrate that concern the president designated mr solomon to serve as the acting general counsel some months later he nominated mr solomon perhaps emboldened by the nomination mr solomon then took some very controversial actions that led the senate promptly to make clear to the president that this individual was not going to be confirmed rather than at that point finding a new nominee the president allowed mr solomon to continue serving if even after the nomination had been returned by the senate waited four months before renominating the same individual and then only a few months later after that finally came up with a nominee that the senate approved in the meantime mr solomon served even though the senate quite clearly did not consent to him served in the job for a profit for over three years and so it is that kind of concern about g end of its opinion but under our reading of the statute when he was nominated he needed to step aside and he couldn't serve as the permanent official until the senate confirmed him so that he his confirmation would be irrelevant to what someone because senate confirmation for one position is not fungible with senate confirmation for another when you're talking about a senate confirmed first assistant that again is a combination of senate confirmation and somebody who's in a first assistant position representing continuity and regularity in the position somebody who is confirmed for a completely unrelated senate position is much more of an end run around the senate's advice and consent role for the vacant office and the legislative history includes examples discussion of congress concern about p a s officials who are being moved around from one position to the other you want to respond to justice briar's point about mr lee i do want to get back to the point about lee the concern about mr levy was not just that he was brought in from the outside at the last minute which is what the government emphasizes if that were the concern congress could have imposed a restriction on short serving first assistance as acting officials instead what congress imposed was a restriction on acting officials and acting officials who are also the nominee and there's no reason to think that congress is concerned about nominees serving as acting officials was limited just to first assistance the text doesn't support that concern and as the example of mr solomon's own service illustrates in practice congress can have very serious concerns about people outside of the first assistant category serving as the acting official while also the nominees and that's a vivid illustration of the example in our brief of somebody who can serve almost an entire presidential presidential term as the permanent as the acting official even though congress has made clear that the individual is not somebody that the senate will consent to as the permanent nominee and i asked mr dreier about the post and happened history because you know we're generally reluctant to demand that congress object to things but on the other hand the history here is so strong all of these appointments one hundred plus of them in a time when congress and the president i mean this is this  been a time where there's been a lot of partisan bickering over appointments and you would think that in that context if anybody had thought that the statute could be read differently we would have heard about it and yet we hear absolutely nothing so how do you explain that several points in response to that first just identifying these f b i or a violations is not an easy thing to do it took the government months of study to do it and it's an arcane technical issue second of all even if congress had identified the violations what was it supposed to do about it if the nominee is somebody that the senate wants to approve there's no point in rejecting them based on their past improper service that's not what the f b i requires and doing so would only prolong the vacancy with another acting official that congress hadn't approved if congress doesn't approve of the nominee odds are it has a reason for doing so that is much more of a headline issue than the f b i or a b f e r a does not make the front page of the washington post its other objectional i don't know what didn't you say something like i don't like this nominee and anyway it's illegal for the president to make this nomination you might add that but it would be a gratuitous addition to what is really the fundamental concern with the nominee it seems that what gives it some real extra right it's not just it's not just a matter of you know my preference versus the government's preferences now the president's preference is illegal it's off the board congress has said he can't do it who wouldn't say that in that circumstance somebody who then was going to be pressed and had to explain the but there are thousands and jobs in the government where they have to run departments where there is no controversy and people leave or they die or something happens is a vacancy in the main institutional imperative is keep the job being done keep the office work so an obvious person is to say mr first assistant you carry on ok and maybe you bring in somebody from next door and maybe you look for a g s a team in the department you know the guy next door is has a presidential appointment so you put him in the job that's all no problem and why all of a sudden congress when these thousands of instances where there's no problem or hundreds anyway congress would say if you decide to appoint him permanently you have to take him immediately out of the acting position and there's more disruption in the apartment why would anyone want to do that now i can see they might want to do it with that first assistant where it's a runaround and they have an idea that it's a runaround when he hasn't served as first assistant for more than ninety days you might say well why him maybe they were just trying to get this controversy in other words as i said it ministre her in non controversial matters i can understand their interpretation more easily that you will tell me that i'm wrong read the first assistant restriction in b one reflects that congress clearly was concerned about some acting officials who were also the permanent nominee congress saw that as a particular  affront to its advice and consent role and that exemplifies a lot of the problems that led to the enactment of the f e r a in which the president presidents of both parties were putting in their ultimate choice for a position long term without senate confirmation there's no reason to think that that concern is limited only to i first assistance coming in from the outside those concerns are equally applicable to any of the thousands of g s fifteen employees within an agency and it's not surprising that in the same set of revisions when congress added a three it made it made those g s fifteen eligible to serve that it also thought well perhaps this has the potential for mischief perhaps this has the potential to allow just as much of an e run around of our advice and consent role as the first assistance likewise with respect to the p a s officials it's true that p a s officials had previously been able to serve as both permanent nominees and acting officials but the  rethought this entire area of vacancies and it's not surprising that while you're while congress was also prohibiting fifteen's this new category from serving as acting officials while nominees that also swept in the a to z as well there's also a practical point about how this actually operates much of the time over thirty percent of the time the president nominates and designates either at the same time or designee or the president nominates first and designate second after apparently becoming impatient with the confirmation process and so just prior your hypothetical your hypothetical was asking why does it make sense to take the official out of the job once they're nominated often that doesn't even happen often the president is nominating the person and then making him the acting official later so you're not taking the person out of the job moreover our interpretation of the statute removes one person from the pool of acting officials there is not this is not a situation where we are taking out the thousands of g s fifteen's or p efficient running of the department at the same time because if the person who's been running the department know you're going to put it through second dislocation of having that person removed and somebody else that again in  practice over a third of the time that doesn't happen it's also something that the radisson happens because no one's read it through and invalidated that person's actions or want to know what i mean is that if you look at the government's chart a third of the time even if you applied our interpretation it would not result in the nominee being taken out of acting service because the nominee isn't even put into acting service until later or at the case after mr solomon had served for some two and a half years when the president put up a permanent nominee the senate confirmed him in a matter of months and so the senate doesn't always take a long time moreover the senate has confirmed approximately eighty five percent of p a s officials during the current president's administration and so the senate is confirming these officials what the f b i requires is that the official not do the job without senate confirmation because that would recreate the very problems that the f b are a was intended to combat in the first place there's a limited exception for a long serving or senate confirmed first assistance but that makes policy sense because of the continuity and the regularity that they bring to the job i'd like to address the question that was raised earlier about the consequences of ruling in our favor retroactively in terms of past citizens no court has considered the no force in effect language but what i can tell you is that the government has been shoring up a defen e that would be tied to the language in thirty three forty eight about the functions and duties of a particular office the only actions that have no force and effect are those that are taken in the performance of a function and vacant office in response to a senate inquiry about a deputy e p a administrator who had been serving for two years the e p a took the position that that individual had not taken any actions whatsoever that were actually tied to the functions or duties of the vacant office on the g a o website there are approximately two dozen reports of time violations over the years of the f b i and the g a o reports that agencies had reported to  of those two dozen individuals who served in violation of the f b i took any actions that were tied to the functions and duties of the office and so the government is already shoring up arguments for why the no force and effect language would defenses skeptical only in the sense that they're not at issue in this case and they have been litigated but if it were if ruling in our favor were going to lead the sky to fall you would expect the government to tell you bring more for other people to prove them they're in a real catch twenty two situation the fact is though it's their burden to show the consequences of their actions and the government's track record on this shows just the opposite  shows that these officials supposedly are not doing anything that would actually be invalidated you cannot counsel me well it's a typical in the sense that it is under thirty three forty eight the no force in effect language doesn't apply to the general counsel of the n r b it's the his actions are only voidable rather than void and that's why the d c circuit look harmless error doctrine and the de facto officer doctrine as additional defenses but even in a case where the no force in effect language did apply again on the government's theory challengers would have to show that the actions were that the actions that were taken were ones that could only have been taken by an individual in the vacant office and the government doesn't believe that that happens very much with respect to the cases that the government cites for the first time in its reply brief none of those are on point the precise case the at the operative language there was under this act that's what made clear that the particular provision there applied only to the statute issue and not separately to the tucker act the mount vernon case out of the ninth  congress specifically added b to when it expanded be one to apply to more than just first assistance and if b if b one did not apply to all of a in the first place there would be no need under b two to create an exception for senate confirmed first assistance those senate confirmed individuals could serve under a two anyway so the only reason the congress would have had to add that b two was because b one pursuant to these the changes to the statutory language otherwise applied to all of a the government argues in its reply brief that be to serve the serves a purpose because it saves the president from having to designate someone under be two that's not a plausible account the congress would have gone to all the trouble of adding b to soley to achieve that goal and again i would return to the core language here which is person and section those are broad inclusive of the serp attention that made clear that the only persons we were talking about were persons who are serving as first assistants there was immediate qualifying language that made clear and narrowed what person meant congress specifically deleted in the draft what the government ascribes to it the edits could have been much simpler it could have simply changed one hundred eighty days to ninety days in order to shorten the the required period of acting service and it could have edited the existing be one to say such person served in the position of first assistant to the office of such officer it made much broader changes thank you council for minutes mister thank you mr chief justice i like to make a number of points first justice kagan your account of what would have happened in congress had there been and any reason to believe there was a problem with the executive was doing is exactly right and we know that because after the d c circuit ruled in fact what you said w happen is what happened senators started raising objections to the president's nominees arguing that they were serving illegally that's what happened in the years prior to the act and that's what happened as soon as the d c circuit ruled that in between period i submit is very significant just a sort of my your you raised section c one i think you're exactly right what their reading of the statute does is read the notwithstanding a one to mean notwithstanding a one to mean that it applies to a two and a three but not c one i think that's a very odd thing to express with the term notwithstanding a one justice brier you were asking about why it would make sense to treat the a two a three differently and i think you're exactly right it does not what respondents said was there needs to be accountability to congress congress put in that accountability it said that these individuals under eighty two and eighty three need to be personally designated by the president it cannot be delegated that is the kind of responsibility that when congress puts that in the president this it's not surprising then that those folks should be able to serve while they're nominated because they have gotten not only a senate confirmation or longstanding agency service but the personal approval of the president counsel tried to distinguish the cases that we raise i think they're worth raising because it does change i think the way this this court has read the  clause we think that that's what this court should do here and then finally i'd like to address this the treatment of p a s officers which i think is really important what respondents said was oh congress swept in a two as well with assertion he attributes to congress the intent to overturn one hundred thirty years of practice that had raised no complaint there is no evidence anywhere in the congressional record that congress was concerned about senate confirmed officials some who were also nominated and it was not reflected in the initial draft the idea that congress blithely did that and swept in eighty two i think is just not supported by the record and i'm sorry one more point one five point justice ginsburg i think you're exactly right on the person section point which justice kennedy also had raised that language was in the prior bill there is no doubt that the provision it was in applied applied in addition to only applied only to first assistance and our point is that person and section of course it's broad but all that does is set up the conflict congress understood that so how did it resolve the conflict not in the most natural way under risk that respondent would have this court understand by saying notwithstanding subsection any which would have taken all of the problem instead it said notwithstanding subsection a one and the idea that congress did that because there was no conflict between  work in their reading if congress had just said a one and then had had b one without the notwithstanding clause this court would have understood be one to be a limitation on a once authority without a doubt and so what notwithstanding a one does specify the order of operations to specify the provision that is overridden and this court should give that that congressional decision respect thank you thank you counsel cases submitted