take the printz case. it went out of its way to say it was an enumerated power case. the majority opinion says this is not separated from enumerated powers. >> let's assume that there is such a thing as a claim where you say is within article one powers but there is a 10th amendment limitation on this. do you have any claims like that? >> i do not want to bet my case on remand that i will not say something in making an argument that the government thinks is too much of a commandeering claim and not enough of an enumerated power claim. >that is the basis of our claim. >> you are at no risk if the court limited it on article one section 8. if there is a difference for commandeering claim, when the case arises, we can deal with it. >> you could certainly do that. as long as it is crystal clear that there will be no obstacle to my client making a constitutional attack on section 229 on remand, that is fair enough for my client. one of the arguments we've preserved is that it is not a blank check for the government. it requires a balancing of the state's interest against t