federal law governing quote any person was presume to not include the sovereign a few years later congress enacted dodd frank which uses that exact stevens formulation of any person dodd frank created a new federal consumer finance protection bureau that bureau turned around and issued c i d s to the three tribal entities before you today those see i d s are improper or are you meant is because they are not persons under the travel and it's not persons under the statu of course congress could have swept tribal entities into dot franka could he use a different word or could he use the same words any persons but defined is one of the definitions of person in the act an entity an entity absolute  a state official and the argument to the supreme court was hey you know a state official is obviously a person and the supreme court said and this is a page seventy one quote obviously state officials literally are persons but a suit against a state official in his official capacity is not different from a suit against the state itself and we think the exact same logic applies here congress knew exactly what words not to use which are the words any person when they wrote the statute but they did and if there's any page in our briefs that i think you should look at it's page fifteen of our opening brief because that is you judge by statute after statute in which congress has used words like entity or corporation or company and still go on to say person doesn't just mean that it also means indian tribe here congress didn't take that path they had the opportunity to so we certainly don't doubt that they have the raw power to do so they just didn't do it here now for what to do with our president that donovan first and stevens the supreme court words about any person and we thought for two ways by which you do that and i don't think the bureau offers anything to the contrary the first thing is that precedent only kicks in when the statute is silent about plague ability to tribes this statute dodd frank is in a class of one it's the only statute this court has ever confronted in which congress went out of its way to actually mention tribes and define them on par with states as explicit provision that takes it out so that the donovan contact would you think that's one way in which that alone is sufficient to do so and indeed i think the bureau's not even disagreeing and this judge panzers your first question as well they took hypothetical in our opening brief which was if you buy their view about company it means they get to regulate state of all the thousands of consumer facing activity that state companies in gauge and they said yes that's right we get to do th not regulators they're commercial lenders that's quite different from the state as a regulator we think it's exactly just bad just like states which are both regulators when they regulate their state lending but they're also lenders so they're lending billions of dollars to in student loans and housing loans and the like and then what you're saying is that the this see if p p cannot regulate a case correct the argument is a pure statutory interpretation case and judged by absolutely tribes themselves are engaged in regulation the record here are forty three one thirteen one thirty two is all about the tribal lending codes that actually do wake you late these lending activities pervasively and so the question is did congress and dot frank when it used those words as a matter of statutory interpretation mean to go further and say no the tribal regulation alone isn't enough this is new bureau gets to do so as well and the argument if you buy it here for tribes boy they're making a massive grab of authority to also say that's going to go for states as well because as i was saying to just rawlinson there's equivalence provision now the other thing about court elaine to return to that question judge rawlinson is that korda lane has a third exception and the third exception in court elaine is whenever a statute whenever there's a legislative history or something that indicates that the statute wasn't meant to be applied well what was it meant to be applied to tribes and this is again the only statute we've said the court has confronted it's unlike  and in which congress went out of its way to say yes to govern you know they govern certain sovereigns but it doesn't govern the states and local governments and so there was a negative inference that could be drawn on the facts of that case and indeed the court threw it here you've got none of that you've got one mention of tribes that mention of tribes is to say that they're equivalent to states you have a definition of persons as judge bay you're absolutely right to say it's a long definition it's got entities it's got companies in it but if you read that to include the sovereign then you'd have to ask what the heck is congress doing when they write all of these statutes at page fifteen of our brief in which they define company to person to include company and association and other things but also say it includes indian tribes congress had a path they knew how to take that path when they wanted to encompass indian tribes they didn't take that path that's argument it's just pure statutory interpretation and then you know it doesn't seem unreasonable to me that when congress is setting up a new agency like the consumer finance protection board with unprecedented powers and an unprecedented structure that has never been before seen in the two hundred plus years of our public that they constitution that is not what we're arguing here what we are going to rule that out so i don't have to think about right what will in one way you do have to think about it a little bit because you have to just ask yourself when congress in two thousand and ten uses the words any person did they really end to include company in corporation did they really mean to extend that the thousands of state consumer activities and the all the things that tribes do when they wanted some explicit mention of that council what do you do with the language and that judicial intervention prior to an agency's initial determination of its jurisdiction is appropriate only for the agency's jurisdiction is plainly the parties agree both as the that case came to the court both parties agreed that that was the standard or abuse of the court didn't actually examine the question it was conceded by that choppa day people were not conceding that you're saying that the only reason that language is the out is because the parties conceded that's what that's what the ninth circuit decision says at page one ninety seven to ninety eight and we think that this court's decision and kerik is very clear on this point that when the the target of that and that makes sense because you know it would be i think a terrible result to say that the agency could kind of fish first and then ask questions later in these sea i d s are extremely intrusive as you know the record shows here it is you know it is every document it's every contract it's all sorts of stuff and absolutely i think eric is clear that you've got they've got to prove up that they have jurisdiction to regulate over these new entities and it would be of course the first time all we're doing is asking to preserve the status quo to do what exactly has happened for the hundreds of years that the american government's been around and look if if somehow they're right and there's an abuse by some tribal lenity if judged b don't act as the co regulators that you are you know if they fall down on the job absolutely congress can pick that up in change and the white dot rewrite dodd frank to give it jurisdiction over these areas but they didn't do that and it's so telling that congress has used exactly the formulation when they want to regulate tribes by defining tribes as persons counsel let me ask you if the standard is not  not the supreme court in louisiana public commission versus f c c says quote an agency literally has no power to act unless and until congress confers powers upon it and we live in a limited government and here congress has not conferred powers on the agency to act in this way dodd frank was an enormously controversial piece of legislation debated every which way not a word about them regulating tribes not a word about them regulating states the supreme court you know if they're talking about giving an agency power to do new things there would be expect some mention of it somewhere in those debates there is zero we review that no we did that's what kerik says explicitly to review it to nova there over a million words i looked it up in the english language congress picked the very two words the supreme court told them not to pick if they were worried about governing the sovereign about governing any person if you want to think time  without complying with the same laws as apply to everyone else and as most relevant here these lenders are persons under the act and they must comply with c ids from the bureau and this is true both under a straightforward application of this court's court alayne precedent and it's also true under the stevens line of cases it's never been thought that you need an express mention of tribes or that you need an express mention of states to subject the tribe or the state to commercial regulation when that sovereign is acting not in its special sovereign capacity but instead is engaging in commercial activity just like private actors do and you see this time and again not just in this court's court alayne line of cases which of course have applied generally applicable federal laws to things like t to casinos to restaurants to enterprises like that what about state activities so in a council analogized the tribes to states and say that the statute treats film call equally and that  there is no practice of regulating states in this manner so could you give us an example of where the government has regularly a state in other the and it's governmental capacity sure and yes you do you see this time and again in the stevens line of cases from the supreme court the supreme court has held for example that states when they act and they engage in commercial activity they are subject to laws regulating wharves and piers the subject to railroad safety laws they're subject to taxes on alcohol sales they are subject to the antitrust laws and the reason for this is intuitive as the supreme court explained in united states v california last like this are designed to prevent a particular type of harm and that harm can equally well result regardless of whether the person acting in commerce is a state or a private and  hopes in the united states be california the supreme court explain this statute is designed to print prevent a particular type of harm states are equally capable of causing that harm when they're operating a railroad and so there's no reason to think that congress would have  and similarly in jefferson county pharmaceutical there was an antitrust law issue and the state there was buying the drugs and selling them on the reselling them on the retail market in competition with in ordinary businesses and the court there said that there's no reason again to think that the evils that congress wanted to prevent with the antitrust  giving the state regulatory power to get right i don't believe it did your honor but that language has no bearing on that separate question of whether the tribe or the sovereign has to comply with the law when it acts in a commercial capacity and engages in that regulated commercial conduct the definition of state and the c f p a performs an entirely different function as judged by a i was noting earlier that the definition of state is used throughout the statute to identify entities that can play a regulatory role in helping to police the consumer financial marketplace so in every provision in the act referring to states you see things like state regulator state agency state bank regulatory authority state attorney general things like that nowhere does the act refer to state owned commercial enterprises or state or tribally own lenders w making loans over the internet to consumers nationwide there are different connotation between persons in the in general your honor the word person is used to describe the people who are regulated by the act so for example the bureau can issue c i d s to persons and petition to enforce i d s against persons of a can also enforce the law against persons by contrast the word state is used throughout to describe the entities that play a regulatory role the definition of person excludes sovereignty and no your honor does not in the statute  not it does not and and the fact that the statute designates a regulatory role for these kinds of state regulators in no way implies that when a state has a commercial arm that is engaging in the regulated commercial activity making loans over the internet all across the country that that statement or the tribal in any gauges and that regulated activity doesn't have to play by the same rules as everyone else something act defines person is an individual partnership company corporation association trust a state cooperative organization or other entity so you would agree that it does not include state literally within the definition a person right no i would not your honor to responses that first of all the lenders here are companies they are limited liability companies that have been separately incorporated and so they fall under the plain meaning of the act for that reason if we disagree with your description of them and companies separate and apart from try what was your response the second the definition of person also includes other entity and the word entity is certainly expansive enough to cover tribes of themselves as well in fact the expanse of enough to include state yes your honor and in fact the blacks logic dictionary definition of entity expressly identifies government entities as an example of an entity do you have examples of your agency regulating any state but both court elaine and the stevens line of cases show that when a sovereign a tribe or a state is acting engaging in commercial activity that is regulated that there's no reason to think that congress would have one would have intended to allow that commercial actor to play by a whole different set of rules simply because it's affiliated with the sovereign and if there are any remaining doubt on that score there are contains various exclusions from the bureau's authority that's section shows that when congress intended to exclude entities from the bureau's authority it did so expressly so it would be odd to think that it silently meant to exempt these entities without saying anything about it also those exclusions are primarily about entities that are engaging in consumer financial activity as sort of an ancillary part of their business none of those exclusions is addressing lending or companies that whose primary business activity is lending across the country and so that to make that expression be hard to believe that congress would have wanted to exempt a significant part of the market from having to play by the same rules as everyone else another thing about these exceptions they are very carefully crafted and they're careful to preserve the bureau's authority over preexisting consumer protection laws for example so even if an entity is otherwise excluded from the bureau's authority congress made sure that when the truth in lending act or the fair credit reporting act or something like that was that issue the bureau would still have authority to enforce those laws against those and it is and that you know further makes it hard to believe that congress intended to give tribally affiliated lenders a blanket exemption from all laws and all enforcement respond to opposing counsel suggestion the court elaine does not apply here because the statute mentions tribes somewhere under court elaine that doesn't matter the question is whether the statute expressly excludes tribes or expressly includes tribes if it's silent on that coverage question you apply court elaine and court of lane is not an intention with stevens you end up with the same result regardless honor i think the bureau spent the last twenty fifteen minutes running away from the text of what the statute is in the stevens presumption the judge rawlinson you asked her what's your best case for this idea that the see a p b s regulated and she identifies she said that that there have been statutes that have regulated antitrust and alcohol in the like those statutes are generally express about regulating the sovereign regulating the state and indeed today is our brief points out a page fifteen congress when they want to include the sovereign or we want to include the tribe does so she then said what's your case california the california case that from just a stone california case doesn't even use the word persons in it if that's the best they got they got nothing at all a did when that california case was used by the folks in the stevens case the plaintiffs in the stevens case justice stevens used it in his dissent as long with the jefferson county case and the majority rejected it saying no hear the words or any persons the words any person are presumed to exclude the sovereign justice stevens disagreed with that to be sure but stevens jay lost stevens the case and so they are relying on weak old authority the congress had when they wrote dodd frank in two thousand and ten the most recent case before it which was the supreme court's case in stevens which said if you use the words any person's this is what it means it's going to click screw the sovereign's now judge be a look i exception to court alene which says that argument is not about that our argument is twofold number one the statute has to first be silent with it's put billeted to tribes before you get into court alene and second if you disagreed with us then the statute the legislative history in that you'd have to look at and see what did congress intend and our point is never once has this court ever confronted a statute like this in which congress went out of its way to mention tribes and then a tribe that is co opting with the federal government in regulating some activity is what they mean by tribe in the act but where it's be regulated for commercial activity the argument of the government is that you look to the word person which includes any entity so so again if you read it that way you'd be opening it up to all sorts of state regulation but more importantly it judged that's exactly the argument justice holmes rejected in the pringle case in one thousand twenty five he said so long as when congress mentions a sovereign once in a statute and then if they use the word persons there's a name for cation that that meant that they had the sovereign on its mind but they didn't go so far as to extend a regulation expressly to the sovereign therefore the word person should be read to exclude it this is a very standard presumption in law there's nothing unusual or fancy about it or we're asking the court to do is apply the time honored standard about what any person means that's after all the words congress gave you and if your intuitive judge kind of ideas about commercial exception you know are persuasive they can persuade the congress but as  bay mails in kiawah it's not the court's job to read a commercial exception into the law it's rather the job of congress to do so they've said both of those expressly also may i ask you then what do you make of the language in jefferson  they've said the word person just follows the stevens presumption even when it applies to tribes and so i think there is some earlier language which they rely on indeed justice stevens relied on but i think that language has now been eclipsed by a modern  which it which you joined judge rowland sit in that case which said you know look the tribes are acting here like commercial actors so why judge bastion they just be governed by a different meaning of the word person and the court majority judge kozinski majority for the court said no the same thing in the in the in the cook case the same argument was made in judge fernando's you know you were sitting on that case as well there was an argument that well this is a casino so it should be governed not by the same standards because it's commercial and the majority opinion said absolutely not there is no commercial exception when we're talking about it the words mean nothing about whether the tribe is acting as a commercial entity you or as a tribal into that would be right if that were the only language this court was meant to deal with but of course stevens was very clear about it after all that was the vermont natural resources agency that was at issue in that case and the supreme court said that when we when the congress uses the word any person it is meant to exclude the sovereign and that's the language that the ninth circuit is applied subsequently in script homesh and in errol d and so when i talked about the commercial stuff i was maybe just going to little too quickly i was thinking that you were trying to distinguish the case on the basis these cases on the basis it's commercial activity or not and i was just simply saying that there is no such distinction in the ninth circuit case law you'd really have to break some dramatically new ground to buy the government to buy the bureau position here could you sum up now just simply that this is a unprecedented agency seeking unprecedented powers that congress didn't authorize and this court's precedents are very clear including