last case in iraq callan there state of new york state of connecticut and tom and city of new york versus united states department of justice new your honors may please the court want to have the department of justice the conditions that issue in this case ensure that states and localities that receive federal law enforcement grant money provide a baseline level of cooperation with federal enforcement of the immigration laws invision by the immigration and nationality act plaintiffs here insist that they may demand these funds while refusing this basic cooperation to the point of refusing to certify that they comply with eight u s c section one thousand three hundred and seventy three a federal statute that exists to ensure the free flow of information between states and localities and the federal government where they exercised their regulatory authority over the same individuals just so i'm clear as to where are  language it's that cause itself you are the including cause what's going on is confirming the relevant authority here because otherwise it carries no meaning and it meant that congress added that provision to no purpose at all which is not what we can only presume congress does statutes you don't you think he can put any condition on grants or the statute confers on him the authority to place special conditions which you know obviously there are constraints some constraints on that might go that far and we think separate provision that's being relied on the point is that unless and you just record the plaintiffs here no one has identified any other provision anywhere that would actually that this including clause would be referring to which would render fifty three requires the applicants to maintain and report information as may reasonably be required so it would seem to me that they could impose a condition that you a requirement that you have to certify in a form acceptable to the age appropriate coordination so it would seem to me you could impose a condition along those lines and you have to certify that you will comply with this part and all other applicable federal laws so you could impose that condition you don't think the statute gives the statute vests any condition authority on you the burn act that is i think the point there is that those powers would exist and would be the same if congress had never amended the statute in two thousand and six and the a g would have been able to carry out his duties under the berne ja statute without congress adding the including clause of the statute at all so in order to give that addition any meaning it has to be that it's conferring some new authority on the assistant attorney general to add special conditions in place pony purposes you know violate the constitution we are it certainly has to be germane to the purposes of the grant and there's been no argument really made here that the you know particular condition is itself not these particular conditions which right directly to the relationship between federal law enforcement and state and local law enforcement are somehow not germane under that sort of understanding so you know in order to give the statute to the statute meaning it has to be the case that there is some novel authority being confirmed here and that's confirmed you know we think by the legislative history as well which emphasizes that it's conferring authority to place special conditions so you know that provision itself is what's doing the work of providing the sort of key authority here for the assistant attorney general the the other and then of course the other condition issue here is the requirement that the plaintiffs certify their compliance with a u s c federal laws and there's no serious doubt i think that section three thousand and seventy three applies in a general sense to the to the plaintiffs issue in this case and we know that statutory language he sure is that that want to receive federal funds federal law enforcement funds will in fact comply with federal law and there's nothing unusual that congress expecting yes i mean we certainly expect th jurisdictions across the country with section one thousand three hundred and seventy three and it singled out among other jurisdictions the city of new york as a jurisdiction of particular concern that they might not in fact be complying with that statute and so in two thousand and sixteen the department identified section  seventy three as in a place of all federal law for purposes of the burn jag statute in a two thousand and seventeen simply added the certification to draw sort of particular attention to jurisdictions compliance with that statute and in fact in the f y and sixteen grant that the city of new york received there was a condition placed that asked the city of new york to conduct a review of its own compliance with section one thousand three hundred and seventy three which the city be accepted as grants subject to that condition without complain so you know yes you're right but i think certainly we would expect generally that states localities would comply with federal law but to the extent that there were specific concerns that were raised about that statute and the department has since two thousand and sixteen recognized that it's in a political statute for purposes of the current jag program you know there were reasons for the attorney general to exercise its authority to you know require an application in a form acceptable to him you know good afternoon your honor may it please the court and you should to skip down on behalf of the state plaintiffs and i'll also be presenting argument on behalf of the city plaintiffs the disputed requirements here are unlawful custody after they serve their state jail time why isn't it appropriate as a part of the coordination obligation that the states have the statute to  ever coordination with what ever agency it deems is effected what that language means is that there are agencies that will be affected by the grant proposal and there are also various provisions of burn jag and if statutes a political to burn jag that require coordination with other if you can see so for example using federal money for re entry offenders and for residential treatment programs at that point the federal government has an interest in why that's happening as opposed to the people just being turned over to gratian authorities so i find it hard to understand how it's not appropriate coordination at that point and therefore why they can't require you to certify that you're doing it because what d o j is doing is it's not enforcing it with respect to this provision or any other provision of the project statute it's not enforcing an existing requirement that congress put on the byrne jag grant so what it's doing is these three conditions are new substantive requirements to receive the money in the st place what your honor is talking about ordination with affected agencies you have to certify  the notion that they can't ask for things have the right to ask for information data records as may reasonably be required i would think they can ask you who are you coordinating with but they can certainly a k what's the coordination involved and does that ordination involve compliance with federal laws for the turnover prisoners when you're asking for money or re entry so you're basic argument that this condition is not reasonably linked to this statute is one that i'm having trouble with ok well so in order to understand the requirements of the burn jag statute we have to see them within the context of the detail distribution scheme that congress created congress said that money was going to be available to states and local governments based on a formula to look to their population and their crime statistics and congress had certain other things certain other factors that jay can consider after the money is dispersed these are various use requirements or use restrictions that congress put into berne jag or into other statutes that control federal financial assistance but d o j doesn't have the new requirements to get burn jag funding because that would convert burn jag from this mandatory formula grant scheme into a discretionary grant so we have to understand those words within the context of what we know congress was trying to do here well congress was trying to do here was ensure appropriate coordination with the affected agencies and as the rd circuit noted when glossing this language that's in the past tense establishes that you have to show there has been appropriate coordination with the agencies that are going to be affected by your grant proposal or the agencies that congress already required you to coordinate by means of statutes that of that congress applied to burn jag now d o j says that the reason why this has to be read to impose an ongoing obligation is because then otherwise it wouldn't be able to ensure that grantees are doing what they propose to do and complying with the obligations that congress imposed but they always have can ask you to certify you will comply in the future so this seems to provide for both what is what you've done in past and what you do with the future the burn jack statute certainly does but it's that last part that's a problem your honor the contesting that congress has the ability to put conditions on federal funds the congress could even put conditions on federal funds that congress could not enact separately as a mandate but congress has to draw the link missing something it's that it's that we don't understand that the certifications make that link when the certifications say appropriate coordination the court has to consider what discord nation mean in the court has to analyze that language there with respect to who do you recognize when you're when you're involved with prisoners who is affected so so these particular requirements are being imposed on everybody regardless of how they are using the burn jag funding and the plaintiffs here using it for of a wide variety of authorized purposes and almost all of those are very remote your honor is talking about a very narrow instance of reentry services most of this money is being used for things that have nothing whatsoever what to do with prisoners like forensic laboratories at risk youth well well that narrows it right so we can at least it sounds like we can at least agree that this language may not be authorization to impose these new requirements as requirements on every grantee to get the money regardless of how that grant he plans to use that money within the terms of the statute that's exactly how d o j is using that language they are using it to impose a general requirement to get the funding one thinks it can impose without any limitations in the other thinks it can impose it at all and i'm suggesting to you that neither argument may be completely persuasive so you know why don't you defend yours are our line and our limitation is very clear that this is a funding statute and so if we would like to get this money we are bound by the terms that congress has set forth and when this court is determining what terms  congress put on the funding there to background principles that the court has to consider the st is the principle articulated by the supreme court in pen hers that when congress puts a condition on federal money it has to do that clearly and vigorously so that's part of the problem with all the laws argument but it would also apply here if you had the ability to say at will what agencies deem to be affected if the require certification that there would be fines with all of the civil rights laws that exist in the united states civil rights laws absolutely because congress made those apply couple to federal financial assistance or to understand the meaning of all the  specifically identified it's so there are some there are some it's not let me step back the statutes that congress congress has requirements like body armor standards that it has put into the byrne jag statute so d o j can impose conditions that relate to that because that's a requirement of the byrne jag statute congress has impose requirements on federal grant he's generally can impose conditions that are designed to make sure that grantees are complying with those other laws so for example your honour's hypothetical that the civil rights law that's that congress and congress made that  mandate that statutes providing federal law enforcement grants not be construed to allow the federal executive to direct supervisor control state or local criminal justice agencies and these two things the penn h and twenty eight form the background principles for interpretation in this case because what they say is that if there is ambiguity about whether a law enforcement grant statute authorizes particular d o j requirement a particular executive requirement that ambiguity has to be construed against the executive so it doesn't say anything about the scope of congress's authority but it just as if congress hasn't spoken clearly if congress hasn't linked  requirement and make that apply to the burn jag statute congress is receptive for example the body armor provision which they apply for that was a legal requirement in the burn ja statute they point to it as a precedent for applying other conditions here the fact that nobody challenge that doesn't make it a precedent for anything but what's significant is that when  to include that congress thought it was a good thing it included it so congress is eminently capable of listening to what d o j thinks are desirable requirements and including those all three if the requirements here if congress found them desirable congress could include them but you allow d o j to transform this scheme that congress has created into money that can be given out at its discretion this is basically a situation where congress has said here is money for state and local law enforcement officials to cannot do here that's that is a violation of the separation of powers that's d o j intruding on this distribution scheme that congress set and converting this grant into a discretionary grant i just want to address my violation of district court concluded that this was arbitrary and capricious for failure to address things that are in the administrative record but one of the things that was in the administrative record the d o j was aware of is that when it surveyed state and local law enforcement that it deemed not to be read it as giving us new authority because if you don't read it that way it would be meaningless there's no reason for congress to have done that and that's just incorrect what this including language does is it establishes that exercising delegate special conditions l grants and the reason why that is a helpful clarification that is meaningful and serves a purpose is that there are other statutes that give particular grant making offices final authority over the grants that they give out  is going to impose special conditions there are statutes like the statute that governs the bureau of justice assistance that governs the bureau of justice statistics that governs the director of the national institute of justice the office of victims  special conditions that came from the statute that created the very grants themselves because a special condition is a condition that's does that's imposed on a particular grant designed to make sure that that grantee complie with existing requirements of the grant so that's of course within a when it has a grant or congresses specified certain requirements and this is consistent with everything we know about the concerns that congress had that motivated  injunction against the application to the plaintiffs of one thousand three hundred and seventy three dollars that was entirely correct because the supreme court's decision in murphy makes clear that the th amendment analysis doesn't distinguish between a directive to allow some act and a directive not to prohibit an act and that's exactly what th seventy three dollars does issues a directive to state legislatures and state and local executive agencies and employees and it tells the that they may not prohibit the sharing of information regarding immigration status with the federal government and it does so with respect to their own instrumentalities and employees just how does this with respect to funding whether it's a constitutional violation in other circumstances for us today it's before the court because of this component of relief that was ordered by the disc or it's true that nothing about the invalidity of well there is a background principle that was recognized by the supreme court that says that if there is language like this all of which in interpreting that language can't be interpreted to encompass a law that is unconstitutional so that's smith right so deep regardless of the scope of d o j is authority here with respect to all of a couple laws they can't use that language to import a statute that may please the court spencer and are for me i'd like to briefly address the department's primary claim of authority in the special conditions provision and then i'd like to go back to your honor's questions about the jag statute the special conditions provision can't provide unlimited statutory authority that the department claims because it uses a term of art special conditions which refer to conditions that simply insure a grand t complies with existing terms of its grant that's how everyone in the ground world use the provision in the decades leading up to two thousand and six including every single mention in the us code the c f r the federal register and in every grant law treatise we could find the department simply has no answer to that the only thing it said is that the statute doesn't explicitly incorporate the department's own special conditions regulation at the time but of course the point isn't that congress incorporated any one regulation the point is that it used the term with an established meaning and that meaning is reflected not only in that regulation but in countless other authorities and just to add to what new york said about war was the purpose of adding this including language if you look at pages eighty nine to ninety one of the house report congress made crystal clear what problem it was addressing and that was that grantees weren't hearing to the terms of their grants i believe that the report on page ninety says that the problem was quote grantees who do not comply with grant terms exactly the situation where you impose a special condition within the term of art meaning and so why congress did on page ninety one dollars it says that it was in the amendments statute in two thousand and six it was an acting and quote integrated package of management reforms to ensure that o j p actually policed compliance with the terms of its grant so it didn't number of things it created an office of audit and assessment in  start start with fact right i agree but here the motivating factor perfectly matches the language congress used it said special conditions and i mean the department doesn't even have a theory as to why the department would use such a unique phrase that it almost never uses if not to mean what everybody in the grant world understood that term to mean you know when congress wants to refer generally to spending conditions it just uses the term conditions or appropriate conditions reasonable conditions etc you know we've cited a dozen examples like that on page twenty four of the law is not a special condition honor i mean if you look at all of their regulations the types of of conditions that qualify as special conditions are accountability measures things like reporting requirements training requirements things like that all they do is reinforce the existing grant terms for a grant you that has some risk of noncompliance if the language though seems very awkward way to do that but what's the agency's delegated the authority says that he can be a required gather information meet the grant itself may not specify all the information that as i read this now the agent might require in order to make sure you're complying with your conditions we now want you to document eight b c that would not have been a condition of the grant itself but it could now place those on the ground that's right but that's because  a is left to the discretion of the yeah well that's true but those are meant to be like the statute says programatic and financial records about the funded jad program turning though to the jags because i know your honor i had questions about that if i could just briefly address the co ordination certification that you mentioned but the rd circuit unanimously rejected the argument that that provides authority open i suggested counsel for new york you're not saying that isn't a question like could you coordinate with what ordination involves and when the court nation does not involve the federal government with and the reason that it's not just that it uses the past tense though that's obviously important it's that all of the neighboring certifications are narrowly about coordination leading up to the i think that recent let's be precise it doesn't ask you a yes or no we're asking this just for information you have to certify that you did khawar that's right right and so my suggestion is when you're not certifying coordination with the federal government you have not you cannot certify that you did coordinate with the type of cordon that d o j is asking for here is an ongoing daily operational also have to comply with applicable federal laws one of the african laws pertains to the kind of cooperation have to do with the federal government to me to turn to the laws provision the reason that that doesn't support it it's only one condition that they're claiming that relates to release programs are you taking the position that there are two hundred and seventy three dollars is not applicable the statute doesn't require a certification of compliance with any law out there that has some logical nexus to one of one possible use of jag funds and again side note that most jag grantees aren't using it for that purpose they're using it for school safety courtroom technology what have you the problem is that the statute doesn't impose that kind of a more feste you know identified the including cause itself needs to be given some purpose or meaning my colleague didn't suggest there was any question prior to two thousand and six whether the a g had the authority to exercise you know powers that were already vested in him as what you're turning to the compliance condition which is section thirteen section one thousand three hundred and seventy three which again has a different statutory hook that is that is required because congress has made that statute  stash raised my question how is one thousand three hundred and seventy three your main to grant for body one cameras because your honor what we have here is a federal law enforcement grant going to federal law and going to state and local law enforcement entities and in the course of giving that grant out it's not at all odd to think congress would expect that jurisdictions would be complying with federal law that regulates the way state and local law enforcement interacts with federal law enforcement and that area to the very end of the you the relevant question for purposes of what counts as in a political federal law in this context is whether it's when it's germane to the purposes of the burn jag grant and the grant itself again as you pointed out it goes to you grantees for all sorts of different purposes but the overall purpose of the grant is to provide federal funding to state and local law enforcement entities and in doing so congress expected that those entities would comply with laws that you know address the  no your honor but that's i think a reflection the fact that states and localities don't generally say that they don't want to comply with federal law i mean you had as i discussed earlier the th report that race specific concerns about compliance with from a variety of stations including the city of new york one of the plaintiffs in this case and as a result the department singled out that statute for particular attention and i don't think there's anything i mean what's novel is the fact that you know we have  do not want to assert or do not want to certify their compliance with with federal law turning briefly to the term of art discussion and there's no indication in the statute or in any of the preceding regulations that and indeed it still wouldn't solve the core problem with plaintiffs reading in the statute which is that it would render the two thousand and six amendment meaningless because again the regulation they point to existed before the amendment there was no doubt no one had challenged it no one seem to think there was any special conditions for a long time and what of this give us some examples of the special conditions so in the past in some post you know conditions related to body armor purchases conditions related to training requirements to  the purchase of certain military style equipment these examples of special conditions where the there was no statutory authorization for the record some of them yes so for example the body armor all of them all the ones i just mentioned are i mean purposes that go beyond purchases that go beyond what is already laid out the statute so there have been instances where the department has imposed these conditions again without much surprise or objection i think from from the grantee community talking about grants under title forty two community development block grants or other such things and then others would have made certain requirements mandatory on the department would have given the a g or the a g no discretion as to the particular requirements that they impose on the grant which is different from what the special conditions authority already does which is give a discretionary authority to the a g to make conditions as appropriate argument the role of counsel very much and your adjourn