the default rule in this country is that the federal government has no power to control the boards of private corporations and that background principle is especially strong in this context where we're talking about a nonprofit international break it up in o t s owned by lies it's wrong on both counts here i could i interrupt for one second even if it were right about the bylaws isn't the point of our opinion in california independence system operator that there has to be a statute in order for which would authorize the government to take over a board yeah there has to be oh yes i think i think that that's a good point   problematic that a private a private corporation could to sort of draft a federal not just problematic if the statute doesn't authorize somebody a federal government official who remove and replace a board doesn't matter what the bylaws say you know even if the bylaws say we'd like the secretary of defense to be our chair to decide who's on our at any other officers and directors for different kinds of organizations so i think i think that's correct relatedly mr kerik if you we have to reach the question of the limitations on mr pa r organizations that are authorized under the statute if that's that's what he's relying on and that is also the identical terms in the bylaws that he is relying on  and so i guess i guess what i'm asking is it seems and i think you're bracing supports this as well that when the district judge said the statute doesn't authorize this but the bylaws do it seems internally inconsistent to incorporate and if both the relevant parties say oh we think this puts us on a par with radio free asia yeah well i mean just st off i mean there's certainly no evidence that that's what that up it says but all the provisions regarding appointment of officers and directors say that they may be appointed as maybe i theorized under that act and i don't know why they would have appointing directors and whether there is a conflict of interest in that case and it says that there will be no conflict of interest from a c e o appointment provided that such appointment is authorized under the act that's that's pretty is not there as under that for the simple reason that it's not like the choir is a government broadcasting entities that are governed by the act it's not mentioned anywhere in the act medication resolve this litigation well that i think your honor that the primary questions in this case are the ones we've been talking about which are questions a federal statutory interpretation which i think is well within t the background in in the normal assumption is that the directors control their own leadership and i think as long as this case isn't going to turn on the doesn't seem to include any entities at the moment radio for he didn't just think of this idea you could have it actually your written document is better that it over it and you know back in two thousand and four when congress created the middle east right casting corporation he did that in the appropriations legislation and it didn't mention it in the international discussed this case focuses on whether primarily whether his in organization authorized under the act and so i just want to be clear as to what we think authorized under the act means that i could i just interrupt if you want to nd do you agree that  it's not authorized under the act that the bylaws are by law argument is not relevant so your honor i mean i don't take that as an argument that plaintiffs have made here and so you know i'm asking you a question now that the district court said it was not ok under the statute but it is ok and of the bylaws what's your position i don't understand how that's possible and i would like to know what your answers i mean your honor you know at least as far as the question your honor i'm not sure what the answer to that question is i mean because it hasn't been briefed i would say it was briefed it was in the amica sprigg so you knew this was coming so the government must have an answer to this question i don't have an answer to this question i guess i would yes and under this court's lot as i would you want to focus on the statute and i want to explain what what authorized under means it means authorized to function as a u s international broadcasting entity with funds provided by us a g m and that requires that you agree to be subject to the i b a and its dictates which are you know which include promoting u s foreign policy and acting consistent with u s foreign policy and if you know and being subject to usa james close oversight and if we to congress and said congress please provide the funds to spin this organization off so because we think we can oversee it better and streamline its operations better congress agreed to do that it was incorporated by radio free asia as president  its board its initial board and at all times has been us a g m is governing committee so if there's any organization that's authorized under the act it's this one and i would also just like to point out the history of u s international broadcasting there are very few entities that have been in this realm but you know as times have changed as audiences have changed as technology is of changed some of these organizations structures have changed you know radio free europe and ready for liberty was merged the middle east is to provide you know to further the policies of usa g m and u s foreign policy in this will not you know open the pandora's box i think that the plaintiffs are presenting here to say that you know authorized under means in organization that was spun off of another radio broadcasting entity that was done so at the request of us a g m with funds provided by congress to do the work that it was doing the same exact work it was doing to radio free asia there's no suggestion it's doing anything different so mr secretary i must confess i've been distracted by your earlier assertion that the technology find didn't make the argument that  incorporation of the act can't give the agency more authority than the act itself gives in other words if the act doesn't confer this authority that by lies can't either and i had thought that was squarely in there in their briefing and in fact it is so well yeah i mean i guess you know on their argument as it goes no further argument is that that should be interpreted to you as at least the founders understanding it but even if your are exceptions the variance argument so if if that the open technology found argues that it doesn't matter whether or didn't flip the negatives but that you're making an argument based on the bylaws in the alternative even if you lose the statutory argument and they're saying it just isn't an alternat argument if you lose the stats are you and your answer that is you're not addressing no i guess i mean are the answer that we gave was that you know as i was ordinarily or interpreted according to contract principles and that if everything about the by the understanding that the initial incorporate are not incorporated but the initial board understood it would cover o t l that's that's argument the separate argument that it couldn't have done that must have had authority under the statute is not one that the plaintiffs themselves have made others saying i understood that when judge sun tel asked me the same question you said you agreed it was likely that yes your honor i don't want to and i don't want to fight about that particular promise because i do agree that ok case law as it has on their side about that and what they did make that argument specifically but i think we should focus on you know focusing on the statute itself you know o t s is clearly an organization that congress had in mind that was authorized under this statute and the difficulty then is how do you distinguish if receiving money and being part of what advances the overall objectives of usa global media how do you distinguish the daycare or other recipients of well as we said st of all there are very few other recipients in what the key is is that they have agreed to carry out u s international broadcasting activities and you know central part of international broadcasting and also the report that usa g m submitted to congress in asking that this entity be spun off and separately funded made clear that you know internet dissemination is crucial to u s international broadcasting going  forward that you know this is important technology that needs to be shared with the other entities and so on and so forth and again if you look at just their bylaws and certainly the grant agreement makes clear that their reason for being their purpose is to further the strategy and policies of u s a g m in this isn't again this is in a pandora's box where there are going to be as you know a number of entities that are you know tricked into thinking that they're now you and us international broadcasters and you have to agree to you form your policies around your your activities around us foreign policy into further the views of u s policies in so that you know there are entities that are willing to do that that's why there are there have been autonomy that work very closely with the government and i'm thinking of you know social services organizations that are when they take they get a lot of money and they absolutely are carrying out governmental objectives in the way they administer that money some steps away then but so just as a formal matter not not looking at sort of the understandings but as a formal matter your strongest argument for this authority is the statutory reference to authorize yes and there they are an organization authorized under the act is your is your position then that any if if if there is a nonprofit that's establ totally on its own and they accept grant switch require them under the statute to do permit supervision following the government's but government's policies that give the cabinet secretary the authority to replace their board if there's a statute that says you know it and we have to understand what does that mean to say you can control the board of any entity authorized under the statute in what a and it's getting grants to technology companies that are acting pursuant to those grants are they authorized within the meaning of statute as you read it why i don't know that have that have started happening but you know if an organization accepts a grant and they agree to all these conditions the you know that they are going to be a u s international broadcaster that they're going to act consistent with u s foreign policy that they will be you know funded by u s a d m then yes they would receives money to support the broadcast mission and i'm i have some programs that support the broadcast mission by doing tech support to journalists and repressive regimes that alone is enough in your view that you know i mean just again if there haven't been in the reason why there aren't private tech companies willing to do this because you have to agree to be effectively you know an arm of the u s government that you have to you know promote u s government yes you have independent some measure of independence in your operations you're e the chair that they he appoint the board is the government's position well i mean that's congress's position that's the government's position that that that's congressman you interpret this statute and as allowing mr packer set up as many grantees as government entities as he wants and to appoint the board that's the government's position that's a government understanding of the statute you know if congress says you know it's consistent with congress's appropriation yes that's in congress  extended to do that but all right isn't it possible that there are two categories of renter recipients of money from the government under the program one of your honor i agree with you that certainly this court could say that at a minimum those characteristics that you're identify created you know if nothing else authorized under means an entity that was formed as part of a different broadcasting entity that was spun off of that actually with congressional approval at the request of the agency and so forth qualifies as one authoriz provisions of the appropriations act that we cite but there is there is no appropriation that it's a line that specifically mentions us and it is there not been i'm aware that it approves money for grants but it doesn't approve it for this money for radio free asia either or yes i know that's fine but radio free asia d is mentioned in the statute you made an argument that in no way you made an argument that sounded like congress had authorized by making an express are funded by you know they are part of international broadcasting congress recognize that those are those are activities that within international us international broadcasting and those can be that grants can be made grants further those border place this is not really a separate argument on your on your part well i guess i would pretty two ways i think that we do agree that if if you agree to the i b m dictates yes why not this court doesn't have to go that far to say that o things that you're talking about that's legislative history right that this that's not in any statute or appropriations bill in mind yes and and if that now that's quite clear and and i think that would be quite right if if it fell under that category which are the consolidation of such entities you would be fun but that is not we're not arguing that walls within that category of the statute are you know but what i the point being is the reason why congress created a general catchall and usually a basic principle of steady  instruction is you look at the specifically you know proceeding items you know the reason it created is to capture what has happened in the past which is things like consolidation or spinoffs of existing entities at a minimum you know it makes sense to interpret what congress  doing in light of that history but the catch also normally use a word like or otherwise when we cite a number the statute does not say or otherwise authorized by your honor reciting number of cases in our brief where there was a general provision any election in one case any tangible item and another in that kind of general phrasing that could include the other or otherwise authorized language in congress in the supreme court looked at you know the specific list of items to determine what that meant when if you look at those items the only thing that they universally have in common is you know also held in common with o t s that they were you know fully funded by u s a g m they serve as a u s international and i think you know the government makes similar sort of connections between o t f and sort of a guilt by association kind of argument that because there are these sort of our safety with the same people and they're engaged in the same groups that ever before they're there are threats just like these other organizations are and i think the problem with that is it's not consistent with the language of the statute it says otherwise under the act it doesn't say you know conceived of within  legislation or the like i see my time has expired for the questions from the bench i thank you that's a very interesting argument we appreciate it and we'll take that under submission thank you