So what do you do with that?

that?Yes.

I was just, I'm glad you asked that, I was trying to get to that.

And I think, respectfully, I don't agree with the characterization of a residual preexisting state interstate pollution law, for the reason that if you look to the court's precedents, as Justice Kavanaugh was mentioning, they say things like, "Federal law preempts state law in interstate air pollution." It's not a thing that exists.

And I think the only way to make sense of Hulette and the way it parses the saving clause in light of that federal common law and, and history, and its constitutional underpinnings, is to recognize that.

Because it would be very strange indeed for the court to have held that, as a matter of, based on this history and based on the text of the saving clause under the Clean Water Act, that there is no way for an injured state to sue under the injured state's law if there was some preexisting body of state law that was, like, like, out there.

It would be a sort of weird displacement.

And again, that would've been a very strange choice to make if it had at the front of its mind the idea that the Constitution itself, by virtue of the plan of the convention, prevented states from touching this area.

But how do they do that when the government argues that The rules are unconstitutional.

Yes, we have not disclaimed enforcement, and it's the same way that the government has done so in cases such as Windsor and cases such as Chaddow.

The government and executive branch has traditionally distinguished between declining to defend the constitutionality of a statute and continuing to enforce it, particularly in situations like here where enforcement is something that preserves judicial review.

Now, you don't even have to agree with that proposition.

You can cast doubt on government enforcement if you wish.

The reason this case is easy on that score for jurisdictional purposes is that FICA also has a private enforcement mechanism.

And it is abundantly clear that there is a very credible risk of enforcement through that private mechanism because many parties avail themselves of it.

I don't think that this has any difficulty meeting that one.