We would not advance this argument, but the Government has offered an argument in a parallel case that suggests a distinction between the '76 act and this case. That's not been briefed here. It's been grounded in their claim that the treaty power creates some special power.
Can we infer the following?
The argument is only advancing because of the Governments new parallel case.

1). Yes.
2). It's impossible to say.
3). No.
The answer is:
1).