How have the courts interpreted the argument in the context of the government's claim that the federal government would be able to continue to enforce its position in the absence of an appeal?

¹ The government made this argument before the district court, but has not pursued it on appeal. Although the government has thus waived this argument, Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999), we find it a necessary starting point for our analysis.

¹ The government made this argument before the district court, but has not pursued it on appeal. Although the government has thus waived this argument, Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999), we find it a necessary starting point for our analysis.