effect and third that the f r a is role in developing the metrics and standards to not share the due process concerns and that third conclusion was necessary because as the court recognized due process allows for these and purely private  seventy arbitration provision the core reason that had the f r a and amtrak been unable to agree to metrics and standards that dispute would have been resolved by the arbitrator who the court help would have been unconstitutionally appointed and who might have sided rules by neutral and self interested and sees the supreme court upheld in current sunshine anthracite an raaf royal the statute would also be operational without the arbitration provision and it would continue to serve congress interests in acting  where i'm wrong if it's right and that is these mexican standards apply to their performance standards and efforts for amtrak that's right on time clean stations these types of things and they don't regulate in that regard the freight railroads but if amtrak is found to have failed some of those metric then the surface transportation board may choose to investigate and if they choose to investigate and if they discover that the cause is great for a road not ceding track all right thing else i'm not sure then there could be could be an investigation a favorite is that is that the only certainly agree with your honor of the metrics and centers do not directly regulate the freight railroads its side most an indirect effect on that further supports our argument that the statute would be constitutional without subsection to us seventy once you remove but severability it is a separate question it's remedial question that most naturally comes up after a constitutional violation has actually been identified so at the point that the appeal was before the court severability wasn't an issue because the touch would have been up as constitutional now once the court identified a constitutional violation the next step of course is that remedial sapone you know the fact that the court didn't say anything about severability doesn't foreclose the issue you know decided the issue and i don't know one way to think about this but i still don't understand why anybody would think of that severability in the context of this case since it had it had declared all of two of seven unconstitutional it didn't  seven as constituted was unconstitutional because of both reasons and your argument is the first reason doesn't continue once you and i the second but exactly right your honor in the fact of the court simply reversed the gran to the government is telling your own silence the fact that it didn't direct the district court to do something on remand i don't think should preclude the district normally we are often we direct the district court to issue an order vacating and ration of powers that reflects to go narrow not broad so should is that are you proposing that as a rule of interpretation for a prior prior panel that's ever unclear if there's ambiguity should we assume they did simply silent on the issue that should not be inferred that the court therefore intended to preclude suffer build analysis of course it was left to the district court to enter judgment as a as required by the court's opinion and everyone agrees that the that issue simply wasn't addressed by the prior opinion it was left open to the district court but on the severability question but as i understand the government's position you don't regard the panel as ambiguous with respect to why  appointment of an arbitrary that's the way you read the panel decision in at least two place right that's right you know so that's not you know i tend the u s plan on we should adopt some rule of construction on our own panels is that your reading of the that right that's right there the opinions reasoning clearly indicates that the statute would be constitutional without the arbitration vision you can see that by going through pages thirty four and thirty five of the opinion the the court first addresses decision that suggests that that scheme would be constitutional on fact would you let me just we use parts of your opinion tell me why they go the principle point of your opinion is that giving a that's true but the problem is is that even in that scheme where there's joint koshary authority you are still going to have amtrak's bias present in the rule that issues in other words it's not as though the or the f r a can just not issue any  metrics at all well for one thing the statute says that in tracking the effort a shall issue so i'm not that's very nice but if it also if it also says both have to agree we have to read that as a whole what do you think it means what do you think happens if you have already does not says no and amtrak says yes i think it should anyway well i think one of two things would happen either the parties would compromise because both are operating under a statutory mandate to issue these regulations within a time certain if that didn't happen no rule would issue but the point is is that the cases that the government is relying on to suggest that this short sort of extraordinary and frankly unprecedented power sharing approach is constitutional the cases that the government relies on are plainly distinguish and in footnote four and in page thirty five of the prior panel's opinion to be sure the court notes the presence of the arbitration provision as one way to distinguish these cases feelingly way i put before is not right  no where in the scheme is there any suggestion that f r a must safeguard the freight operators interests or constrain amtrak's profit pursuits moreover f r a is powerless i reckon the second record that it gets so it doesn't say that both of those two reasons is anything other than the failure of the inability of am f r a to judge here well your honor i don't think in all fairness i don't think it's a plausible reading of the prior panel's opinion to say that they devoted ten pages federal report to explaining why the grant of rule making authority absent the arbitration clause just a grant of rule making authority violates due process and then effectively an write everything they did in a sentence in a footnote where all they did was distinguish these two cases that the government hadn't even cited in the brief user's supreme court opinions that were distinguished and the only reason they gave for distinguishing those screams or opinions no longer alas than we are stuck with the supreme court opinions we don't have a rule that says don't pay any attention to our footnotes we do have a rule that says don't pay attention to your foot but we don't have that rule with his back to our own but your are i think that the courts the prior panels ultimate decision the mandate in this case is just table nobody was to strike down section two zero seven in its entirety the government conceded that point in the district court they told judge posner they said yes the d c circuit struck down to seven in its entirety the government didn't say no severability could easily have said that as well it's a difficult problem because the court says that the free operators fail to preserve their arbitration claim at all and let that and yet they let you raise the claim it's a little much to claim that the government should have off that the court was going to allow you to raise the arbitration claim and then having raese arbitration claim ruled against you and then have to argue severability the arbitration cla was raised both in the prior appeals to dischord and the supreme court i think what the prior panel was saying was that in our original complaint you know five or six years ago we didn't raise it but by the time that the relevant  complaint it has been fully litigated in the last three or four iterations of this lawsuit in all those iterations when we were fully briefing in arguing arbitration we were arguing no severability the government never said anything to the contrary hidden in your committee somewhere it says we're going to give you a we're going to let you do it anyway basically because if the court thinks it's an important argument but that's not that's not a reason why we should take away from the government the ability to raise severability  there is a portion of the statute which is deemed unconstitutional and that's the focus of the court's opinion and severability inquiry then looks at whether a separate portion of the statute that was not declared unconstitutional can unless survive in this case the panel devoted governmental intermediation like there was in the other cases and why because the arbitration provision took that away so if there is still a colorable possible severability argument he made in the opinions absolutely clause no regulation commission without without the affirmative support of the effort right right to what do you disagree with that words without the arbitration clause there is no constitutional infirmity in the statute and that's wrong and what's that's what i asked you the question tell me again why it's wrong right it's wrong because it first of all it does not fit the model of the cases that the government says the statute short of the arbitration provision but just what is that he his question was about this statute his question to you was with out the arbitrator isn't the due process problem resolved because amtrak on its own can't issue any regulations that bind its competitors but it the due process problem is not solved your honor the reason why is because amtrak would still have fifty percent of the authority and that the end product of the yes so your argument then is that well because it's fifty fifty they'll compromise right and therefore the amtrak's  compromise right that's right because i think what the f r as you know at bottom you agree that if the f r a doesn't want to compromise then the regulation will not issue correct if the f r a doesn't want to compromise the regulation and issue but what i would say on your whole argument then is that this is it remains unconstitutional because amtrak a non governmental agency has  that there would be a constitutional problem with that particularly if added to that statute was there quorum you have here which is to say you shall issue regulations within a time certain i think there is  congressional command from congress that you shall issue this i think a typical good faith government agency would seek to issue something even if it means compromising well they wouldn't cripple the good faith government agency wouldn't seek to issue something that was in the public interest does there's there's never we have never identified a statute in the government never identified a statute that gives fifty fifty three hour sharing does it really fifty fifty i mean the supreme court was pretty clear that in issuing these metrics and standards amtrak acts as a governmental entity now the prior panel was concerned with the arbitration provision in its pocket it's naked self interest would empower it to override that but if that's gone it doesn't have that in its pocket and we have to assume that at least it's not to some degree and frack will act as the supreme court said it would as a governmental entity which in government lands and cities but i don't think what the supreme court did not say that just because amtrak must be treated as a governmental entity that therefore it is not self interest that it doesn't have a profit motive i mean ok profit motive can converse that's converses judgment that's the public good in congress is a view is that they make money but the supreme court was quite clear that when it is a system where you have one quote unquote pure government entity and you have a nother entity that is a for profit government corporation and what the prior panel said at length is that the fact that amtrak must be treated as governmental doesn't make it appropriate in the due process context for it to regulate its competitors because it is motivated by profit it is not regulating in some larger public interest untainted by its profit motive pursuits that's what the prior panel held i would also point out that the government filed a rehearing petition in this case it never mentioned severability even after this panel had acted this court has said in many contexts that an issue is if it's something that could have been raised in the prior appeal and was it there is absolutely no reason why the government cannot have really waive all i mean i you know if someone brought a challenge to a teeny tiny provision and huge tax act that was just adopted and then didn't bother to argue severability with the court have no choice but to take the entire statute down i think we have our own obligation to do we not it yes but i guess i agree with that but at the same time doesn't matter had the same issue the prior panel had the exact same issue and you're absolutely right that court had an obligation to act in the narrowest possible way and the fact that it didn't do what this court almost invariably does either do severability itself or be a man with instructions to conduct severability i consequence of the mistake can't and that is even if the executive branch made a mistake the consequence can't be that we can't that we have to take down a congressional statute and unless of course it's actually unconstitutional  on the question of whether we can even consider separate bill well it would be something to have the government could fail to defend a congressional statute maybe even malevolently failed to come to defend a congressional statute and its lack of defense would require us to strike down congress's work well first i would say that we cite in our brief a half a dozen cases where the courts of appeals have said that severability like any hunter stiction argument can be waived even is look at page thirty five of the prior panel opinion when before getting to the point your honor read to me from the bench they give additional reasons why the involvement of the f r a in this scheme didn't salvage the statute at the end of that paragraph you are right they do go on to say oh and moreover by the way say all and more they say over fair enough it was it was a rhetorical embellish it on my part but they did say moreover and then they provided an additional  i think that to say that the due process flaw the only due process flaws the arbitration provision i respectfully submit is not a fair reading of what this panel decided this case comes to this court on a motion for entry of judgment we respectfully submit that it is not a fair memorialization of the decision of the prior panel striking down to zero seven in its entirety the point the government has conceded to memorialize that decision in something that says well you know it's and in fact if you look at rock royal there the secretary of agriculture was directed to issue a minimum milk prices that could be approved by milk producers over the objection of no campbell or to have to pay the price and the statu stated that those orders were intended to benefit the milk producers so the secretary of agriculture actually had a directive to benefit the same party that could approve the prices over the objection of another government entity was actually on the other end  ere certainly wasn't a requirement that the government entity have a mandate to oppose the private party that is involved in the regulatory process and here you know once you take away the arbitration provision there's also the fact that amtrak is not a private entity take the arbitration provision the scheme certainly compares favorably to those schemes that have been upheld and there is no longer any due process problem now and i'm happy to answer any other questions the court may have otherwise thank you