bring your argument to carlos when you hear time it is up thank you may please the court i want to focus on the ice detainer issue in particular the fourth amendment in the preemption issues on the fourth amendment states do not engage in unreasonable seizures by honoring federal ice detain requests to hold an alien up to forty eight additional hours after an existing lawful detention there is no question federal officers can detain with probable cause or remove ability and no different reasonable this analysis applies for state officials especially under the collective knowledge doctrine and on preemption the district  court's expressed language in arizona versus united states providing multiple examples of how states and localities can honor federal requests for cooperation in forcing immigration law even without a formal written agreement and beyond mere information sharing on the fourth amendment analysis because there is no question that federal officials can detain without a judicial warrant for probable cause of a movability it's clear that that is a reasonable seizure and it's not any different when the state officials affecting the seizure at the express request of the federal government mr kohut it may well be i'm looking for authority it seems to be one of the forty's you  is virginia versions more which i look at as an exclusionary rule case more than an authorization of what nonfederal or enforcement officials can do can you tease that out for me why is what is your best case for that and and regardless how does virginia be more really directly or is only by implication assist your argument virginia vs moore is not squarely on point but is very persuasive authority for the proposition that in doing a fourth  analysis you're not focused on what the state law is or the precise identity of the actor it's like virginia versus more itself once laying out what the test for for them in a reasonable this is says the first thing you look at is historical practice and here we have a story a practice goes back to at least the one nine hundred forty s and second of all even if the history is not clear what you're looking at in a reasonable this inquiry is balancing what is the intrusion on privacy versus what is the legitimate government interest and legitimate governmental interest in this context is going to merge because the federal government is making explicit requests of the state and both the federal and state governments have sovereign interests in who is lawfully present within their borders now also walked through this in a way that did course you did at least in part i know you want to go all the way that he did but it seems to me that the standing that plane does have that was found in this case is violation of their oath and other matters is w proper valid in so far as the perspective of local law enforcement to be engaging in this sort of seizure regardless of if evidence ultimately obtained could be used in court so whether evidence comes in versus whether there is in fact a fourth amendment violation or going to be two different questions the eighth circuit has said that the argument that plaintiffs are raising here that the states cannot detain at the express direction of ice is  argument the fourth circuit in santos case said that the states can detain at isis expressed erection but also cite the court to the laville case this is the third circuit case that we cited that footnote to it collects not only itself the third circuit but the seventh eighth and tenth circuits all of those cases saying that for four and then else you do not look to the law of the particular state in the words you are not asking is the particular officers identity does that have some bearing on a fourth amendment reasonable this analysis rather what you're asking is is the intrusion privacy justified by a legitimate government interest and here it would be regardless of whether the federal government is doing it or the state is doing it at the express request of the federal government when when you say that the due to premises to your argument so far in the fourth amendment one there's no question the federal government authorities have authority under ice i would have said that that's an extremely controverted point at the moment when you you know citing the fourth circuit decision the four circuit says quote until today this court has not established until today has not established local law enforcement officers may not season to vigils for civil immigration violations so that's the four circuit sa ice but because the ice detain or request there came forty five minutes after the state in oregon the that's the earlier portion but then i can't get around the language that they say today we establish local law enforcement officers may not seize individuals for civil immigration that a state cannot unilaterally detain because a unilateral detention without a federal request that would be printed on arizona versus united states you can see that the under the language of arizona versus united states and i don't want to get off the fourth amendment but that what i agree with your read on arizona in that regard but it seems to me as before in the briefs and just today you said it it the language of the statute is that you must honor the request but the actual language is honor and fulfill and fulfill means carry out convert into actuality so as before to me says all of two hundred forty one counties in texas campus police local police you must fulfill the request if that language is implies mandatory detaining that would be preempted correct it would not be printed and the reason is because every time when we're talking about a federal licensing or a class every time the federal government issues this request of the state government that itself is the federal government making a request it is information it is at the behest of the federal government and what arizona versus united states that was printed was unilateral action absent for that or well but the federal government in all their litigating posture and i'm thinking particularly the most recent litigation the moran you know versus napolitano litigation the scans of the government has always been this is voluntary look at the forms they  mplate dialogue they contemplate verification it's not mandatory and the problem with and the federal government can't do that correct me if i'm wrong because largely of the tenth amendment they can't conscript the problem that i see with this before is it's achieving the same thing the federal government can achieve it's telling if you get one of these requests and informal requests for notice now you must fulfill the request that's right but there's nothing wrong with it when the state does it and the reason for that is the commandeering doctrine is saying the federal government but there are many interrupters i mean not to be rude but i think i do see where you're going it you would agree it would be improper constitutionally for the federal government to do it but your position now is but texas can do absolutely but that's that runs in the conflict preemption because all of the federal authority the i in a everything the forms themselves the way the circuits have interpreted these ice detainers everything has been premised on the understanding that federal law makes it voluntary so you do have an arizona conflict preemption problem once the state says well i know federal law makes a voluntary but we've chosen in our own not to make a voluntary judging as i don't believe  preempted and here is why there is a difference between the federal government saying this is voluntary because we cannot compel it and a state saying we are directing our localities as part of our sovereignty because localities are creatures of the state to honor us and when that is made there is no conflict with her uncle phil ancyl still there cannot be a conflict ok keep it there cannot be a conflict with federal law because the federal government lacks the the supreme court is constantly said the federal law about entry an exit is discretionary it has to contain the discretion and what texas has done is exactly what i think arizona was told they can do which is to make it mandatory now texas authorities will mandatorily retain and detain these individuals but only when the federal government in its discretion has requested requested it and said please hold this for also the individuals we're talking about are individuals that are already within the state criminal justice system but that's over the whole premise of the forty eight hours is they're no longer lawfully detained that's correct but that may be a situation where the state has said we're not going to prosecute the individual it could very well be a situation where someone is out on bail and yes there would be an additional detention in light of the ice that's a request but it's not that all of a sudden there is no interest or whatever in those forty eight hours it's not it's not disputed they are in state custody that's correct that's correct no it's not a warrantless arrest because the state has the authority to seize these individuals based on what based on the federal immigration warrant that is being issued to the state that says we have probable cause of a river that's the t forty seven eight for correct then there's a there's going to be it and i said to request there's also going to be an immigration was not just collective knowledge it's collective knowledge from federal to state officials about a civil offense where the underlying communication from the federal said that these ice detainers are not informal i thought that's the only way they could be valid under the fourth amendment is that they're voluntary and informed the federal government can only issue requests for voluntary compliance to texas can turn that into mandatory texas can tell its localities you must cooperate when the federal government has given you the request in the discretion of the federal government or are we to read qualified or been trained to do i believe the training wouldn't matter in this context because localities have to rely on the federal government for movability determinations and all that is going on here in the ice to tell your contacts to someone who's already being detained in the state would continue to detain them and they wouldn't need any additional training to know how to detain someone it would simply be continue doing what you're doing for up to forty eight hours because the federal government in its particularize determination has said there and possibly for ensuring there but again when an officer is going to be only responding to a federal request there is not going to necessarily be a training issue because they're going to be serving at the be federal request but even if there were a training issue the the language of these three says it speaks of assistance and cooperation with a federal immigration officer so it's only going to be after the predicate federal request and second as reasonable or necessary if there really were an issue or an officer simply was not trained to perform whatever function into that would not be a reasonable or necessary cooperation therefore wouldn't be covered by the statute would that read more unnecessary crawford cation where that protect a local police department it gets overloaded with domestic matters and they are not responding and what would they be accused of possibly material limiting their response or with the reasonable and necessary thank which protect them if they were acting right it would protect them but i have with one caveat that if there were not actually bonafide resource constraints rather it was the reason given was resource constraints but that was a pretext masking a pattern or practice to deny these requests all the time that would be a different case but otherwise yes it could provide protection accounts which was going to feel left in place  predicate for what i'm raising why is the line and how what a a an official no the line between an outright prohibition you may not assist immigration enforcement and material limitations and regardless of where that line is isn't the state at this stage in the state of an injunction sufficiently protected by the prohibition language to being in place judge southwick the the facial vegas in korea i ask is there a core to the statute and when even else nizo says that its policy that quote limits the situations in which city officials can engage in immigration enforcement is in fact covered by us before then the law cannot be facially vague but for the reasons explained to judge dennis that the reasonable or necessary language and our concession that the term material would also void for vagueness as to materially limits in our precedent like eaves your position is that we should construe materially limits to have more bite to it than language we struck down in cases like that that  all the sharks here wouldn't know whether they're impeding if they deploy people to go after gangs instead of assist given our position that reasonable or necessary and material also encompass or protect a bona fide resource constraints given that the court is under the duty to use every reasonable construction to court the supreme court scaling to save a statute those would be reasonable narrowing constructions to save the state if we do that in  eve's not whether the court would have done that it needs or not if the construction is reasonable it would proffer that it is and it gives clear guidance that there are bonafide resource constraints that this is a way to save the statute from any possible vagueness concerns the district may have had even you first is there a difference between a being made mandatory by us before in time for it is and is the fact that it's voluntary and that's what is the thing to do on the tenth member with the same problems exist even in the absence of those before and so far as if even holding for forty eight hours beyond strictly in a matter of a federal detainer when you have the same constitutional or the same legality problems of the state can do that only based on the detained yes and this is where the plane disposition of the district courts position is the state and its localities cannot on the ice detain or request based on probable cause of ability rather what the plaintiff position district court say is need probable cause of a crime the state has never its powers to detain have never been limited just to crimes and that would invalidate not only the compelled ice detainers that we're talking about  before that rationale violates even voluntary compliance and voluntary compliance has existed since one thousand forty's and even beyond the fourth amendment analysis in turning to preemption which would be a separate question than the fourth amendment reasonable thi there what arizona found preempted was a law about unilateral decisions by state officers and what this court in its villa's case found was when local officers were state officers were the ones making the move ability to terminations that's what was preempted my concern you know is when you look at these forms the federal law seems to say even give the detainees the form the detainees himself can call the support center that's correct but but now texas says now it's mandatory it doesn't imply that they could be any dialogue verification that a texas law enforcement officer campus cop could go to jail if they don't fulfill the requests they need to fulfill the requests they need to detain but that doesn't prevent them from the engaging in a dialogue with the federal government saying ok we're attains adversity and so you will have a period of time where where we have state custody based on something that the third circuit is called purely a notification and even the latest iteration of the form rest probable cause on a simple fact that a box is checked that there is proceedings pending i don't see how that even establishes a civil offense to any level of probable cause by the second ability and then it says here is why you have four boxes to check it's one includes proceedings against an individual correct but but they've also also told us there is probable cause a river ability and also an arresting officer under the collective knowledge doctrine has never needed to have awareness of the specific facts that's the hensley supreme court case and so really the state must leave all of the men of honor ability is collective knowledge federal to state on civil all resting on a document that has a box saying there's a proceeding that troubles me as a fourth amendment matter but but i do agree with you there are separate issues most of these sub federal immigration laws are tested under preemption so back to that because your time limited and i'm taking up a lot of it i'm thinking clearest example of friction is if you're a federal defendant and you come in and the government says we think you might be unlawfully present the statute clear thirty one forty two d you can get temporary detention only if a court after hearing with a defense attorney finds risk of flight or danger none of those elements exist here but most importantly for me as i read us before it says to this campus cop you could go to jail if you release him based on anything other than a texas driver's license or government id right government id you have are but twelve but federal law thirty one forty two doesn't require government id there's no limit on the proof that the detain see thirty one forty two day and the government will talk so they may know that better but that as i read it the proof to teenie can show to avoid temporary detention is not limited or restricted but i look at s p four and the texas police officer will go to jail if they release unless it's a government id if it's proof of lawful status but doesn't have to be a government id to show proof of lawful status i believe it have to be a government under arrest before but does federal law require the federal government is going to be in a better position to speak but even even we're talking about just a worthless or a us on probable cause a move ability at that initial stage able says that this is a longstanding historical practice and there's nothing in that about would be an as applied challenge in a very hypothetical narrow context and here ronnie facial fourth amendment posture and even if there were concerns in that particular situation it could not possibly sweep away the other ninety nine percent of applications that us before would apply to  what you are seeking from us in this immediate period of time you certainly want the injunction stayed looking at what's in your papers i don't see that you have separately address of is there a exception to end this period until the merits found that there's no purpose for those penalty sections to be in place is that something sort of implicit in the way you stay in motion the court in balancing act of the factors could determine that for purposes of its analysis to maintain status quo or the balance of harms the court of course can factor in those various elements in if the court were to conclude that that is valid that would also mean there's no preemption for enforcement assistance for cooperation with a federal official when there's a predicate federal request and issues about facial vegas and issues on the endorsement free speech question would be separate from the ice detainer component that is the primary basis of the state motion that we're seeking today i see my time's expired and you want to ask two more questions once just sort of a clarification of that point in my mind it may have been a sort of softball question to you because in the briefs it didn't seem like you were challenging the status to the penalty provisions and if you weren't then the played us harm would work surely slip  away we are asking for a state even on the penalty provisions even pending the expedited appeal where you roll the dice again in a month pending the expert other people we are asking for a stay of all of the elements of texas law that has been joined but we do acknowledge that the court and it's sort of unusual to have you at the table with the united states government the my question is is no a year ago or snow this year in texas versus kline are we had a case where a task a state officer was with an f task force charged then by travis county for manslaughter and that officer was able to remove and then dismiss based on immunity would the effect of s b four be that all local officials if an incident occurred pursuant to their assistance would be federal officers for purposes of removal and immunity you understand my question yes and i want to give a definitive answer here just at the podium having not thought through these in a state posture but i believe in that situation we the action will be taken at the behest of the federal government and the qualified immunity principles would apply this goes to partially why the harm that they're alleging particular to ice  nearly as strong as what they're saying and i think the fact that texas is obviously with the united states here in this longstanding practice just goes to show the historical pedigree of this practice of licensing years thank you sir recorded been indulgent and increasing the time on both sides in this case and i'm not going to ask my colleagues not to ask any questions but we do try to stay within our or allotted time from here on out thank you we also hear you and we hear you a between the detainer provision in this case and the i two forty seven a detainer forms sort of to explain how these would work in practice how they would lay away some of the mandatory his concerns get into the cooperation that the federal government invasions with these with these points if i may third circuit's right though the department litigating position the forms the case law the law itself all rests on the department's position that the federal immigration law is these detainers are voluntary requests correct i would say they're voluntary in the sense that we're seeking cooperation your honor i mean they're not they're not demanding action we wouldn't want to run into into in any kind of commandeering problem how can texas convert it into you must fulfill what what what texas form does ask for notification it does ask for local officials to maintain folks in state custody but it also says and it makes this very clear a notice that says if the alien may be the victim of a crime or if you want the the alien to remain in the united states for  longer foresman purposes or if you have any other questions or concerns about this matter you should contact the ice law enforcement support center at a number that's available they'll twenty four hours a day seven days a week on the back the team needed the need gets that same opportunity right you that's according to federal law but it doesn't sound like that's how texas reads it your honor i think a fair a fair understanding of this law of complying with an ongoing a request is is is to is to is to read read the statement as a whole and understand this is  is before is really requiring is that what it says on the form being carried out which includes the nor occasion the discussion the calling of the twenty four hour day seven day a week number is that how you would interpret the of the requests if they detain remains in effect your honor with the idea i'm i'm getting at is that a lot of the way this case has proceeded on the part of the challenge has been that there's no sort of back and forth here that if the arresting officer has other knowledge they can't do anything about it detain or foreman as it interacts with the statute here says you know you can reach out to ice if you have other information if you have you know know this person is not the right person tell them ice has no greater interest in local officials and in creating fourth amendment problems they can hear the evidence begin their policy is to comply with the laws including the fourth amendment their policy makes very clear that they are that once they make a determination they won't pick somebody up in custody this is paragraph two point eight of the six page policy that it was issued april second what about the discrepancy in pro question i asked right you know department of justice attorneys can't request a dentical temporary detention if the detainees gives them proof that they are lawfully present how does this before is a texas police officer doesn't have that ability to release unless the detainees gives them a government i d how can those be reconciled your honor he does have a duty he does the local officer is able to release i is canceled and that is has not my question as before the second paragraph says you the detainees got to give you government i d we you know we've been we've been litigating what is appropriate idea out of texas for a while i don't see a government facial challenge is that the a lot of the problems that arise in the in the reason this is that the district court held that this was a facial violation of the fourth amendment was because it it somehow operates on constitutionally in every circumstance and what i'm saying is you know everyone agrees that most most of these detainees are complied with you know presumably consistent with the fourth amendment you know there's not a claim to the contrary and if that's true and if there's a way to deal with these case by case concerns as there is by reaching out to ice who can then cancel a detainer and will do what their policy is to cancel detainers immediately when they they know that determine that they're not going to pick pick somebody up there's a this ensures that the facial problem disappears at their you way around facial but in the rain you legislation which i think is the most recent litigation on this issue elsewhere right the government asked the court said we don't need any more factual aberration this is consistent with the ins and it doesn't exceed our authority in the district that it does exceed authority you are not what i do what i'd say here is that this is consistent with a regime that the supreme court recognizes legitimate in arizona versus united states by was there's a cooperation there request on the part of the federal government and the local local law enforcement can read it and local law construed that it's own law to make that cooperation request and dialogue mandatory with misdemeanor sanctions would you agree then it would be in conflict with arizona i'm not sure of the answer that question your honor i you know we haven't taken a position on it here i don't i'm not i don't think it creates a problem here because in the vast wealth of cases given the cooperative approach it is consistent as a facial matter before i before i miss too much time there's another point that i'd like to emphasize your honor and then i hopefully get to judge southwards point about virginia versus more that point is the notification piece mentioned in texas his reply brief there's and as well as the united states states amicus brief there's nothing in the district court that casts a legal doubt on the legitimacy of the information the notification of release portion of detainers each each detain or ask for both notification of release as well as potentially detention there's no argument here that the fourth amendment is violated by that notification piece yet the the the injunction and in this case prevents that notification the price declaration emphasizes attach the united states brief your honour's that notification is a hugely important thing to the united states it lets us at least have a shot even if we don't get the forty eight hours of detention to go apprehen sort of activities we're talking about no and when is it enough just to be cooperative wonders to know you're i'm not sure that i can capture it very specific very with with perfect precision i do think though perfect decision and we need to make sure that what we're dealing with here is on one side of the line or the other right what i doubt the size here is that when you at least when you have a request on the part of the federal government for cooperation for you know a request back here's how we'd like you to help us in our in force me to the immigration laws that's sufficient without a written agreement that you say this before does not go beyond does not require any local law enforcement official to do anything that is not at the request of federal government insofar as actual activity you can adopt policies and that's one thing but is before is enforcing assisting in the enforcement is it always going to be in your mind and under the category it's written as it's structured and and as it i think operates it would be at the request because the detain or is a request you know for assistance so so that it would be proper under preemption concerns in this case i don't think as a result i don't think the district court pushed the versus more recognizes that history is primary in deciding what is reasonable and consistent with the fourth amendment there's a long standing history of detention and arrest for civil immigration violations and i think that's a very  county are you guys putting up issues you're going to cover the same issues loosely splitting up issues your honor but prepared to answer a question on any of them how much time are you saving today we're dividing equally at twenty minutes each ok under s b for texas sheriffs and police chiefs local elected officials and every employee of cities counties and community college districts face fines of up to twenty five thousand dollars per offense mandamus actions injunctions and removal from office for those who are elected this threat of substantial harm to the plaintiffs here which include collectively five of the sixth largest cities in texas with a population of over six million people including their employees and their residents far outweighs the weak showing by texas of its institutional interest in seeing its law go into effect just getting to the merits because times quick and i don't want to extend over that time the district largely based it's it's the junction on preemption that that's very hard for me to see not just atmosphere rickly where we've got the government of texas in the united states the same table but as i read immigration law all arizona ever ever since nine eleven the law is contemplating encouraging states to assist  what texas is doing here is fortifying federal enforcement and so so that you know i think back on whiting that well was said to be by definition no conflict because it's just mirroring the federal enforcement agent whiting in us fear is on a here on a really show why it is that as before is preempted whiting being largely a savings clause case where the federal government said explicitly that licensing  regulations were permissible turning to the preemption arguments here on a piece of the statute that was not addressed by texas involves the enforcement provision of seven fifty two zero five three big and that is a provision that authorizes police officers and other local officials magistrates booking clerks district attorneys to use their own discretion without a requirement of federal supervision and federal supreme court emphasized tenby the final clause it would make sense that thirty fifty seven g as well we've got a big comedy or a problem so we're going to all when the government wants it it's got to be by agreement and supervision and training but when the state wants to mirror the government they've got authority under ten b and thirteen fifty seven g ten does not bear the weight that texas tries to what they said recently you have to be ten doesn't bear cooperative enforcement provisions seven fifty two zero five three b three which is separate from detainers here and i know the focus has been on two tanners but we didn't want to leave today without talking about the enforcement provision and in fact to eighty seven d or thirteen to fifty seven g in its entirety supports our position and undermines the position of both the united states and texas because thirteen fifty seven g three says all of the activity dist carried out under this provision including under ten has to be done under federal supervision and direction and you will see time and time again the position of the united states federal supervision and direction with respect to the enforcement provision it's entirely lacking not just b to ten b right there are statutes i'm thinking thirteen seventy three sixteen forty four that congress has explicitly invalidated state and local efforts to be non cooperative you're familiar with those provisions your hon i was thinking that you were talking about the provisions that authorized state officers to make arrests and those are those are congressional enactment saying states and localities you cannot impede information sharing oh yes there are two hundred seventy three yes of course your honor and here what we're talking about is an foresman which falls so closely to the core of the federal or phenomena exists a second area sort of damned if they do and damned if they don't write in farmers branch and you know i wrote an opinion there as here we said localities that to restrict immigrants aliens to the rental licensing that's that's conflicted but now localities that want to be pro immigration how can that just put it put aside as before how are all these non cooperation provisions consistent with even without as before where restrictive some federal legislation is being struck down by courts including ours but legislation that would encourage a migrant to come to that community wouldn't be well your honor here in this case there is no jurisdiction that doesn't comply with thirteen seventy three is communication provisions and the jurisdictions that are here today also use their own discretion in many cases to comply with detaining requests so i'm i'm not sure that before the court today is a situation where you have a local jurisdiction that is flaunting federal requirements for example of argument goes into force as before you said when we primary discussion with the government side or the detaining you now are you saying that in so far as that part of the argument is concerned you're not really alleging a unilateral action has been authorized by us before you want us to focus on what you're now looking at or and are you making an argument even the insistence on detainers falls under arizona falls is invalid under a zone with respect to the enforcement provision of seven fifty two zero five three our argument is that arizona does speak to the fact that g ten which is in the two eighty seven do provision cannot bear the weight that texas plays on it i can turn now to the issue of the problems with detainers which is that there are two big preemption problems and there are two big fourth amendment problems to pick up on the questioning of judge higginson the two big preemption problems include as you were mentioning that the the escape valve of the mandatory nature of the detainer is that the police officer would evaluate the driver's license to make an immigration determination and as your honor has written in the on bank decision in farmers branch local officials cannot make immigration determinations that is not their job but texas has i mean the form itself in texas dozens in fact is embracing it has the support center numbers to call they have any doubt on top of that it has the four little boxes that say here's the p authority to take a step back your honor the detain or mandatory detain or compliance requirement and as before isn't tethered to the form or the civil war and that is sometimes issued with the form as before on its flight face mandates compliance with any request including the written detain request the entire argument today has been based on the assumption false here that detainers are always issued on the two forty seven a form and accompanied by a civil war and but as before specifically contemplates a requirement to comply with any request but could be over don't assume duty is a bonus april since they revised the form in the new policy description that it will always be accompanied by sign since april when it is not verbal or faxed over because remember as before talks about every request not just written request it says every request including written request so as to written  don't have anything in the record about this probably not even in the june hearing about verbal requests to detain the don't conform to the form doing in terms of the dinette the john or i'd have to go back to the declarations it is certainly very common whether that phone call occurs by the side of the road or whether that phone call occurs at the jail or if it's a fax but the requests are informal in nature and can either come on a form or can come by other means and with respect to the form and the civil war yes it is now the practice to attach the administrative warrant but on the face of the form also there's a false assumption that probable cause is presented there is the box that your honor pointed out which has to do with an individual in removal proceedings which doesn't establish probable cause of or movability also there's a second box a box to which talks about i'm sorry all right said the first ten minutes of your time as is about to expire yes  do have twenty minutes i was hoping to be able to use all of them i thought you said you want to share your time with somebody here i am deallocation is forty minutes to be divided twenty minutes each y you've got the twenty minutes but but nobody else can have a part of that twenty thank you your honor thank you very much with respect to the boxes on the detain or form they do not always show probable cause there is the box identified by your honor involving removal proceedings and the box lower down i don't ice fourth amendment difficulties correct me if you disagree all of them would preexist as before they would be in common with any ice detain or enforcement except for the part about the mandatory nature your honor because although there are can be a fourth amendment it's it's unclear to me whether they do think as i heard the federal government they think it's still dialogue and verification in informal the solicitor general as i understood it is saying that a texas officer would be in trouble if didn't mandatorily detain the only way i see mandate is if we put a stress on the word fulfill as opposed to on our request where your honor on the face of the statute it requires though it doesn't it requests that to forty seven forms were amended a long time ago to not require they only requests understood your honor and following up on the fellow language which does make it mandatory that your position yes your honor that this mandatory nature strips the officer of the ability to make that individual assessment of probable cause now here today we've heard that it's ok because the probable cause is provided on the forms of course the detain or request is not always on a form but even then these forms are not signed by a neutral magistrate they are signed by an find a fourth man by later because it didn't reach the issue because of a type of immunity that the court was working with both ovando and the portion of santos that found an acceptable moment of detention which happens after conference and the exercise of discretion by the individual officer don't really speak to the mandatory nature of the requirement here and certainly do not grant either inherent authority or some kind of broad general authority to officers to make civil immigration arrests look at what you say is a specific problem with this before this independent a broader issue you would probably raise against the detentions at all if in fact there is still communication which may be disputed on the others but at the other table i would say that maybe not but to the extent the consultation communication still occurs under detainer is there anything different about we quarreling that that local law enforcement officials participate in that and not ignore it because they are still cooperating and still making the communications and if that all that results in deciding not to detain as it would before as before doesn't seem to me there's a new level of potential illegality from the statute it's our contention that it's the mandatory nature that creates that new level of illegality me by mandatory detainer is a request it doesn't have to be fulfilled and the individual office or the police official can make an independent fourth amendment evaluation of whether there is probable cause or not and could for and make a decision ultimately which is what the fourth amendment requires if s b four were to go into effect now individual police officers are subject to the most extreme sanctions under the statute which is jail for up to a year for failure to fulfill it strips the officer of the ability to make that independent evaluation it doesn't matter what the officer knows it doesn't matter that there's dissipating information related to probable cause the officer must fulfill the detain or if there is dissipating information like a texas driver's license then they can release that then walks us right into the preemption problem farmers branch says that that two answers your honor one walks into the preemption problem because local officials cannot make immigration determinations second legal permanent residents are subjected t day they are often arrested in eyes places to detain on them it is not simply people without any evidence of status so the preemption problem comes because the individual officers now require to release the person with a driver's license when i used to actually want that person to be kept in custody because they are in fact subject to a detain or possible remove ability or that is a larger attack on the whole creature of ice detainers the c f r whether or not the underlying statutory authority supports it outside controlled substance offenses no euro circuit has seemed to sort of pull the trigger on no your honor the driver's license provision is unique to s b there but but as before does say such as so much as and and  reliance on the driver's license is preempted that provision that so called safety valve right a safety valve to try to read is in actuality federal law has two thirty one forty two d contemplates any information that may be the case your honor but here the problem is the preemption issue that is brought to us by as before whether or not another court or even this court would find that to be a problem is for another case and for another day right now we're in the position of a motion for stay you draw support for your arguments from the luna decision out of massachusetts or not your honor is the reason i worry that you don't get support from it is that it it seem that state officers couldn't see pursuant to detainers because there wasn't a state law texas this bill stepped in and created the state law it's our contention that preemption principles inform this situation in a way that makes it impossible for texas to step into the immigration running grant that authority but in any event your honor whether it says can't but localities cam this gets back to my real asymmetry problem can a locality in texas say a pro immigration ordinance and yet we keep striking down anything that's a restrictive immigration why don't they both preempt it because it's a plenary power federal government to do entry exit in terms of conditions i understand the question honor and the answer may not be that satisfactory but we do see a difference between not regulating an area and just staying back out of it because it doesn't raise the same kind of preemption concerns that stepping in and requiring action or  and acting as state law non cooperation statutes yes your honor the trust act in illinois and in california that is true but again circling back whether it's  a non cooperation policy your honor i think that would that raises a host of issues which i'm not prepared to answer right now but i do think we would still be getting into both a preemption area and a fourth amendment area that would be extremely problematic just to follow up on massachusetts whether it's massachusetts whether it's some toss whether it's small under us versus our pio in the ninth circuit that the law is moving whether it's mercado in the in the district court in dallas the law is moving and we don't know where it's going to end up and the question of detainers per se is not really an issue here as much as for example the mandatory nature of the fulfill provision which we believe causes preemption and fourth amendment problems where we are procedur ally right now is that the court can tackle some of these issues more deeply after additional briefing in oral argument in less than seven weeks and right now it is our contention although the state has raised arguments that these do not create a likelihood of success on the merits or even the kind of substantial case given that the equities way so have really in favor of the plaintiffs here that where we are in the case right now it is more appropriate to avoid th e threat of the first amendment violations which aren't monetary and cannot be repaired even when they occur once or the threat of jail time or the threat of remove all of office or the dot the threat to public safety which was found by the district court the you do read the district court's injunction to extend to the penalty provisions only as to the portions of the statute that were struck down so for up here and attended by paper so i jumped in to quickly i didn't with admonition from our presider i didn't want to extend the previous person's argument but but what she was getting to is one of the concerns that i have legislation is being enjoyed by a federal court and that in the nature of things almost like structural constitutional error that is automatically irreparable injury according to not the most thorough authority but a couple of pinions that one of the attorneys on the outside sided from chambers by the chief justice rehnquist and robert what's your reaction to the the injury during this immediate period if we leave in place which we may not them i'm just feeling is that you would leave a somewhat odd statute in place because you have these mandates and i think that you would have local sheriffs police chiefs and other government officials trying to act in good faith and not being sure what to do because they have an oath to comply with the constitution they're going to be struggling with it they're not sure what they can do because we do think there are vagueness problems they may be worried about the fourth amendment even without the penalties i think that would leave a somewhat odd structure in place but i i fully agree with your point that you would be ameliorating a bunch of the harm if you took out the penalties i just don't think that it would leave these people on the ground the plaintiffs on the ground making split second decisions in real time with a satisfactory feeling of do i comply with what i see as the law here and protecting my communities even though i'm not going to be put in jail or removed from office i still think that would a struggle and i would feel very differently i think if this court said argument out for a year and a half from now but we're going to be back here the week of november sixth that's a very short amount of time and just in relation to that the two opinions that trying to make it determine over give it so much weight that merely because it's a state law that's been invalidated that tips the scales so significantly at the state factors that it's here one of the four elements of the  i think law all those just any day when it just means a short with that on their son i think we're not going to discount that invalidating state law has no effect but we think in this case the balance of equities even without the penalties if we go back to our clients and say to these police chiefs on the ground lucky you won't be put in jail you will be removed from office but you're still going to make have to make these very difficult decisions about whether something limits or prohibits the question you were asking the other side which is a very difficult question the judge garcia could not figure out i think when you asked and they could they said was imprecise i think there's going to be all these difficult decisions that are going to put pressure on their jobs on their o what we believe to be three provision that we're talking about does allow for unilateral action and the reason is because texturally there is no suggestion that it hostile be a federal trigger it says cooperation and assistance obviously you can assist you know laterally and that goes to one of the problems that a lot of what texas is coming in and saying here and as well as in the district corps are things that the lawyers are writing into the stock trickle saying look don't worry you know you can prohibit anything that's unilateral you can place limits on anything that's unilateral well where in the statute is that and so these are just things that they are saying in their briefs and saying the court an obvious is this court knows that cannot be a definitive interpretation and we would have to go back to our clients and say to police chiefs look the lawyers have said you won't be thrown in jail or removed from office or hit with this is that what wasn't was in that in the arizona case there wasn't didn't the law include in validation of local non cooperation and that survived the district court and presumably there was in force in arizona speak that didn't the inquiry provision in us before the invalidation of local not cooperation in arizona that legislation as i remember it included similar it included to a provision that allowed line officers a traffic flow but but didn't even get invalidated surviving just would never even that screen court so i presume is law there is that you can't arizona was telling the calories you can't refuse to cooperate i don't recall any i pod as your i don't recall any provision or you got thirteen minutes i suggest you tell us what's wrong with this statute and what why we need to suspend all or part of it right so let me let me address the preemption i think it will go to your questions as i think here are there are two preemption theories one is the one judge gar what we have now is the trump administration coming in and it's not about to trouble mr turner it's because it's just a new administration that wants to use local law enforcement and so i speak for is writing essentially a blank check in advance and saying you must comply with anything they ask for and here is why texas can't just cooperate because this goes to your question i think about why they want to cooperate the attack would be on the federal enforcement policy itself no i think that the preemption problem comes in because what congress set up is they want certain functions to be done by an agreement so that's thirteen fifty seven one three way and those are very specific types of functions interrogate very plausible to read that whole ar legislative history the tenth amendment was only one part of commerce is concerned i think there was real concern about localities not being mandated but i think what congress is saying is look without those agreements without training where if you has been doing it without an agreement cooperating precisely without an agreement we are not your not making the agreement argument at least here now with respect to the detainers so so i hope will go on now that i'm not the past each other ok went right to the agreement that's not the part with respect to the then what do we have specific that texas is mandating people to do that usurps immigration authority it would seem to me this is much more a dispute about how texas divides its own powers their localities anything to do and that's just sort of within their political subdivisions that an internal fight that the constitution has nothing to say about i think that's absolutely wrong that that their argument because what congress has said is that you cannot agree to do immigration functions without an agreement so texas can't agree and therefore they couldn't agree for their localities not those provisions one through eight sat out immigration functions those cannot be done without an agreement that is you cannot choose to say texas your best case that's ever said that i mean i like the cap program all those are pursuant to agreements right you fingerprint everybody send it to us and we'll give you access all that is pursuant to written agreements or do we have a lot of cooperation some federal law and i think while i think one of the problems is that each thing would have to be taken on two it's on the line between what's an immigration function and what's not is very unclear and that's one of the problems with the law so you have justice kennedy in arizona saying it's not really clear what she ten means what cooperation to just what that savings clause would do and then you have them standing up but i think both both of them saying well we're not really sure where the lines so then the police chief gets a request from ice and it says can you go out and detain certain people for us is that within g ten or does that have to be done by an agreement they say can you go out during the hurricane army which happen and say help us detain people and look for people who are on documented no i don't want to do that they are both groups not in this record wouldn't that all be appropriate to be as applied stage yet and that i think raises a very important question about why in this particular situation and as applied challenge is not really possible because these are split second decisions take the call that they're going to get in used it and it says go help us even at the shelters we need help the police chief says come on i'm not sending my officials out so is he running to try and get a t r o or does he say no i'm not going to do that and risk enormous penalties it's all well and good for them to stand up there and say we would never prosecute in that situation or we don't think the law means anything but if you look at the language of the statute it is very broad it says a system cooperate i mean right as a facial matter g ten said use the word cooperate as before the big three provisions as cooperate and assist so if you're not going to render assistance redundant it has to mean something more than g ten just as a straight textual matter i think that really the problem runs through the entire statute you have is some ambiguity about what can be me but at least no coherent understanding would allow you know i don't decisions part of human homeland security or my homeland security has a few ideas situations in which states batiste baden joint task so it seems to me what we're dealing with here is in between what we know under arizona the state cannot do which is run their own immigration system and what we know they can do the examples that homeland security gave in maybe one or two others so in between those two i don't see that arizona has spoken to this what was spoken to and we can read was in there about how much further the state could go and what is specifically authorized under arizona but it does seem to me that we're in a great area where we're looking right now  this day request for some certainty there are you have made a critical point here there is uncertainty and i think that's what i am trying i think what we're trying to convey is that they don't know exactly where that line as we don't know but certainly the police chase a law enforcement on the ground so they could have written a statute that listed very specific things you may not do anything without a request and here are the few things you may do but they wrote a very broad statute that's sad cooperate or assist and you may not place limits which are real limits and so you are left with people not knowing where that line is so so be three sweeps in a host of provisions and to and to go to the question again about so it so texas cannot agree to do things outside the agreement so that part of that they could agree to anything for the political subdivisions i think is wrong but the other thing that's interesting to note is that congress in both thirteen seventy three and thirteen fifty seven g actually singled out political subdivisions that said states and political subdivisions so it was very aware in those of retaining some autonomy for political subdivisions that didn't just say states and so thirteen seventy three i think it is really interesting on the preemption or don't we brief that fully below we don't have enough space to do it here but thirteen seventy three is a federal as before it says you may not prohibit your officers from sharing information but it doesn't go beyond sharing information and there have been multiple bills introduced in congress since then that have tried to expand thirteen seventy three but on information sharing to make it sort of a federal ask and that's more critical for them in the districts opinion his view that as before isn't just communication it's in force and i fear that you lose well if it was just information but and that actually the critical thing is that as before the b two provision actually is specifically about information sharing so we know b three goes beyond information sharing and i don't think there's any dispute from the other side that the three goes beyond information sharing because there's a specific subsection that deals with information sharing which judge garcia appellate in light of thirteen seventy three texas is saying but here now the material the limits phrase restore sort of deployment discretion officers have if it's in effect interpreted to mean you know sips only you can't substantially or significantly limit i selected i think it and they are trying to come in litigation position and narrow it and say well it's a resource thing you would have to comply i'm not sure where that's in the statute i also think that your honour's could ask them a host of hypotheticals about would this be a material limit or not slice a month or we don't want you going near the hurricane shelters or if you're going to be assisting in a raid of a family we don't want you to do that only if it's criminals that ice is going after i mean there's a host of situations that are going to play out on the ground immediately and the thought that each time it plays out a police chief is going to run into court and try and get a tiro asking i don't want to do this i don't want to enforce hurricane shelter or i don't want to enforce with a family or lock you again because their biggest argument brust back to enforcement assistant that provision is can be and i don't think you've cited a case on that saying this is a flaw to it as a thing that this is the direction of ink collaborators taken since nine eleven we have to have state and now texas instead of defying is saying which is going to mirror how can we get it wrong if we mirror instead of go beyond well but i think what justice kennedy did say is it's ambiguous what a covers and he listed a few examples and so i think we'd be in a different situation had asked before listed a few of the examples justice kennedy listed that do fall within ten but i  superfluous or even conflict with the earlier sections that's the best authority is there there's been a lot of scholarship on the sanctuary city situations can you point to any of scholarship that would be more illuminati off the top my head your honor we certainly could you know that's right why supplemental now i'm sorry we have enough to read right now but i think it would you know i would be surprised if texas or the united states got up here and said that anything that has to be done through an agreement can also just be done voluntarily and signing one of these agreements was simply voluntary so i that's not the way i read it and i think you know at this point with a stay you're asking it's one thing if they had listed all these things that these chiefs have to do without broad language i really think it's going to be impossible on the ground making split second decisions all the different requirements i mean all the different things they have to do or not do under under be begins and you're absolutely correct the state can order its own localities its own self what to do just like a local sheriff can order its own officers what to do the federal government cannot tell the state what to do when the federal government cannot tell the state that must or cannot order its local officials to do otherwise and states are permitted under their own powers to say we're not going to cooperate but states can also do what texas done here to say with ice in ten years we will cooperate states can as a state wide piece  legislation say we would cooperate if a state passed a law like s b for and said we do not want to cooperate the federal government cannot commandeer a state to do that but texas is taking the opposite policy or what texas has said is you must comply with ice detainers and there's no preemption here under both whiting in arizona both of those cases were situations where federal law said you may voluntarily comply with it was either a fire or asking immigration status and in both situations the state said to local officers you at the effect of this before it works both ways to a federal immigration enforcement were to sort of lower the floor d prioritise texas officers are required to call they do call and the federal immigration support center says no without three prior convictions let him go that a state officer the didn't assist with that would be violating c s before and they couldn't even criticize that non enforcement well there's a difference when an ice  form like assisting a joint raid but either way though the enforcement assistance requires assistance so if the federal authorities choose to not enforce to d prioritize a texas officer that doesn't correspondingly not in force violate this before statutory language the plaintiffs are ignored its assistance for cooperate quote with a federal immigration officer on quote so be three only applies when you are assisting or cooperating with a federal immigration officer you must have a federal request to even trigger that and to be able to do that and judge against in your earlier questions about twelve seventy four a proceedings regarding burning the roof of those or removal proceedings and here all we're talking about is a very temporary detention at the beginning of  at the beginning of a detention and so whatever would be had really thirty one forty two is just a temporary detention at the beginning it but implicating removal proceedings and here all we're talking about is an initial detention of that also to the exception preempted under villas in arizona of the local officer making the determination the ice detainer mandate itself the broad effect of that would still be in place in the end we're here on a facial posture and they have to show that the ice the tenor of course of the invalid in all of its applications and as they've even said in travis county has said they have at least selectively complied with this for quite some time a judge southwick tier question about what is in compass within the thirteen fifty seven agreement when do you need one well the answer would be first of all be through you never allows unilateral action a three never allows you to lateral action we need a request from the federal government first and because of that this is always going to fall within g ten d's preemption savings clause because this is cooperation with the federal government and in arizona justice kennedy's opinion provided specific examples where you did not in a formal agreement but you could comply with enforcement cooperation joint raids executing warrants access to jails that is not just information sharing information sharing actually is already covered under the g ten a savings clause g ten b allows much more and allows the ice to tina requests and ask to irreparable  precedence of here in this facial posture when i sit here practice has existed since the one nine hundred forty s the state has the sovereign authority to direct its officers to comply with the federal government in the state is losing its sovereignty by not being able to satisfy its interest