authority includes the power to impose special conditions on all grants and determine priority topics is for formula grant and here the notice in access conditions are special conditions that he imposed on the burn jag grant and we think that they they clearly fall within the special conditions authority and does the fact that it is a formula grant change the calculus of the argument here i don't think so your honor the provision clearly applies to both formula grants and non formula grants the text of the provision states that he has the authority to that the authority includes imposing special conditions on all grants and determining prairie purposes for formula grants there's a bigger difference and some of that can many of the conditions that have been imposed in the past are really more ministerial or go to the integrity of the funding process rather than something that has substantive like like the ones we have here yeah of course there are some conditions that are ministerial and go to you know the mere administration of how the grant program works but there there's a long history of a g p imposing a number of different types of conditions and we've noted a few in our brief including  for example the prohibited expenditures list which you know originally rose out of a working group created by an executive order but wasn't you know otherwise required by by by law it was and imposed as a special condition by the a and addition the mandatory where policy for years from twenty twelve until twenty sixteen that was imposed as a special condition pursuant to the support and we think that this condition which really i think it's very important to focus on what these conditions do they are sort of if the special conditions authority means anything it wouldn't it includes the authority to impose these types of conditions which they do they are just designed to ensure that the very departments that are receiving the federal funds are not tying around and exercising their law enforcement in a way that directly interferes with federal law enforcement but when you say they're not turning around and exercising then you're getting beyond  something that really has to do with with the grant you're actually imposing conditions that aren't related to the grant what what's the limit that you would say can be imposed on these types of conditions what what's the outline factor of the limiting factor there doesn't seem to be any well you know first i would like to know that these conditions are limited to the program or activity that's funded by the grant and that's true of all three of these conditions that we're talking about here and  don't get the grill a shift to the program or activity but that's that that's an explicit limit in the conditions the conditions require that for the program or activity that's funded by the grant that apple can't will have in the notice condition will happen place a policy that they will provide notice when d h s presents them with a formal request for a notice of an alien's release date similarly for access with respect to the program or activity that's funded by the grant they will have in place a policy that permits us to access illions in that's given under this program yes these are these conditions are being imposed in all of the fiscal year twenty seventeen grants my point is just that the the conditions in the certification are limited to the program or activity that's funded by the grant and that's the same for for example if you know anti discrimination conditions those are limited to the program or activity that's funded by the grant but how do these relate to the program matic integrity the green side the program or activity but  most of the conditions most of the conditions that i have seen that have been found permissible relate to the program matic integrity and these do not seem to do that they seem to go beyond if i can supplement that when you look at one zero one zero two a first five seem to do exactly that they way to relate to the program coordination whatever it might be but then six would seem to follow from those and yet you're saying that some ho six which exercised much of the powers of punches may be vested in the a assistant attorney general pursuant to the shaft or by delegation of the a g t don't you need to have some sort of independent power given elsewhere other than here no you and i think it's important to look at the statutory history and what what happened with this particular provision so prior to two thousand and six the this provision stated that the agent could exercise the powers elsewhere bested inst in this in two thousand and six in the same statute they created the punjab programme congress added the including cause and that clause must mean something under the citizenship lateesha it doesn't mean anything it doesn't authorize the a g to do anything that he couldn't do previously and there would be no there would be nothing to clarify if if they if the statute already bested the then a g with the authority to impose special conditions and some other provision there wouldn't be a need to add this cause to clarify whether he could do that but any living has to be a subset of all the powers vested or delegated or to have done i don't think that's correct we noted in our brief that the supreme court isn't including a subset of in many many instances it would be because it would be clarifying the category previously described but here there was nothing to clarify if a statute already provides that they can impose special conditions or if the attorney general has already delegated that power to him there is no reason that congress would have added the including clause to say that he could do those things that were are the he already could do then that a legislative history confirms that this  this clause the including clause was added to quote allow the assistant attorney general to impose special conditions and determining priority purposes for all grants or there's other special conditions that are across the board applicable to all grants as compared to special conditions having to do with certain specific grants we are at the i mean the attorney the assistant attorney general's authority isn't limited to only imposing uniform conditions since the grant awarded to the grant recipient and it includes all of the special conditions and the recipient has forty five days to review the special conditions and decide whether to accept the funds and agree to comply with the conditions what's a special condition  not sure about conditions in other grant programs we the briefing is just focused on the conditions imposed in this grant program and i think again it's important to note that these conditions they are really they're very targeted at ensuring that the grant recipient isn't engaging in law enforcement you know way that directly interferes with the federal government's law enforcement so that we're not funding a police department that is acting in a way that's directly contrary to the federal government's own law enforcement section ten two two eight reads prohibition of federal control over state and local criminal justice agencies probation  discrimination goes on to say that nothing in this chapter or any other action be construed to authorize any department etc to exercise any direction supervision or control over any police force or any other criminal justice agency in any state or political subdivision thereof and it's housed in the administrative provisions are the same chapter as when i won five three does this pose a problem to you or is this  this something that has to be overcome or is it no use it's over come on i don't think that that that provision is a problem at the legislative history which was discussed in a fourth circuit case that i apologize i don't have the name off the top of my head indicated that that was enacted to ensure that there wasn't the federal of local police forces and that's clearly not what's happening here we're not directing how localities spend the funds there still is a lot of flexibility in terms of the bob criminal justice purposes of the grants all the conditions do is try to ensure that that i in a in the i in a i operate smoothly in the way that congress and vision and here we're talking about when two different sovereigns are regulating the same people and congress chose to allow the state criminal prosecution to generally proceed before federal immigration removal proceedings congress instead could have chosen to provide that aliens would immediately be removed and couldn't continue in state criminal custody but instead congress allowed them to stay in state criminal custody based on the premise that when that custody ends the sterile callate he won't interfere with the federal government's ability to assume custody of  restricts the ability of government entities to prohibit or restrict sending receiving etc cherami to acts entirely on on local law enforcement does it not in just the same way that the airline that's what i'm talking about as well in in murphy the supreme court i described the different types of preemption and when it was discussing express preemption provisions it explained that it's a mistake to be confused by the way in which an express preemption provision is phrase and then it explicitly noted a a preemption provision that stated no state shall an actor in force any law that that type of preemption provision is constitutional and that's exactly the same type of preemption provision that we have issue here thirteen seventy three is part of congress's regulation of individual illions just as the caribbean and i would urge your honor to to look at we are murky discusses the airline deregulation act this is the exact same type of preemption provision it fits within a larger regulatory scheme of private individuals while you're on this tell us again why prince doesn't find the commandeering section prince prince is different because  involved the actual conscription state executives into the enforcement of federal law is the the statute issue in prince required the state executives to actually perform the background checks these section thirteen seventy three doesn't doesn't impose any any requirement like that instead it's an information sharing provision and the majority in prince as well as justice o'connor's current's recognized that m information sharing is different than the actual conscription of executives into enforcing federal law and here well again what we're talking about this is information that the state has because it has aliens in its criminal custody that the united states seeks to remove and the only way that that operates smoothly and safely is if the united states can take custody of the individuals when there are states and it's is released and i know specifically contemplates this because in some instances it will quires the federal government to take custody of of individuals with certain criminal histories immediately upon their release and that simply won't work if states are releasing individuals without telling the federal government and again we're only talking about with respect to the notice condition we're only talking about when d a just sends a specific request to the local facility when it has probable cause to believe that the alien is removable and so it specifically asks when the alien is going to be released and as even the city recognizes it's much safer for the federal government to transfer custody of these individuals you know within a control facility then to try to pick them up at large and on the street which poses public safety threats to the public generally as well as to the obvious errors that are you know that are engaging in the arrests you know you may not have this information now not all a be given access to lock and track going at that time it had access to cars and i think this highlights sort of the obviously of the city's position here because the city the city's position is that it will share information regarding immigration status including address whereabouts fingerprints names of of suspected criminal aliens the only thing that the city won't share is the date that it's going to release the ileum but even there it will share that information if for release date and i think this just highlights you know the kind of the oddity of the city's position given that it will share a lot of information i don't confuse that your discussion of murphy murphy found that preventing a state from authorizing an activity ran afoul of the tenth amendment did not yes you are so how can prohibit ing a state or local entity from restricting something how can that be different federal government was not itself authorizing gambling here by contrast thirteen seventy three is a preemption commission that is part of congress who is a prevention person when it does exactly the same thing that that  was the case in murphy preventing a state from authorizing an activity prohibiting a state from restricting an activity how is that different it's different because it's it's here the federal government is regulating private individuals the back and express preemption provision is always phrased as a restriction on what laws states can act and the court in murphy explained that express preemption provisions don't run afoul of the tenth amendment when they are part of the federal government's regulation of private individuals and that is exactly what thirteen seventy three as it regulates private individuals did it by saying that in locality and not restrict sorry i'm not i'm not being clear there's a difference between the language of the preemption provision and the statutory context of a larger statutory scheme that it's a part of in murphy the preemption provision was not part of a statutory scheme that regulated private individuals here the preemption provision is part news regulation of individual ends and that is the exact grounds to the court in march he warned that it would be a mistake to be confused by the way that a preemption provision is for he used and the court explicitly said that in the context of the airline deregulation act where there again you have a lot of federal regulations that were e p sorry you had a federal statute that said that that said there couldn't be there couldn't be certain types of  regulations on airlines but it was part and that was part of the federal government's larger regulation of private entities and here we have the same thing this case is like the airline deregulation act not like the statute that was issue at issue in murphy but i mean both statutes on a quickly dictate what a state legislature in this case a city may or may not do yes in every preemption provision is phrases like that if the question is whether it's part of a regulation of private individuals and here it unquestionably is and i would also note that we don't i mean i want to answer all of your concerns about it any concerns that you have about thirteen seventy three sconce to the we think that it's valid both as a preemption provision because it's part of the iranians regulation of individuals and it's separately valid as an information sharing requirement but i also would like to note that we don't think that this court needs to address that issue the controversy here is about grant conditions and the grant conditions regardless of whether thirteen seventy three is is valid as a standalone statute under the tenth amendment the certification condition is valid under the spending clause the question is what is applicable i mean program and we think thirteen seventy three satisfies those requirements but we think it was error for the district court to go beyond the grant controversy the conditions in the grant and reach out and take the extraordinary step of declaring an act of congress unconstitutional and so we think that once this court resolves the controversy surrounding the three grant conditions it wouldn't be appropriate to go farther and maybe it's dumb question time but why wasn't there an argument made as to arguably ambiguous and the only thing i could come up with is maybe under me under step zero there's no authority given by congress to actually formulate the types of special conditions or your honor we think that it's a legal question bankruptcy code for example obviously not right your honor it's limited to laws that are germane to the purposes of the byrne jag program but again here in the cities the city's interpretation is that it refers to laws that generally apply to federal grant but there are other instances in which congress has wanted certifications with respect to laws that govern grantees and congress has used that explicit language here instead it used the phrase all other a clickable federal laws and we think that that can honor the provision states that there should be a certification that the applicant will comply with all provisions of this part and all other applicable federal laws and we think that congress purposely chose the broad terms all of them clickable federal laws standalone matter it wasn't constitutional it wouldn't that wouldn't underline congress intent to what i want a sort of occasion of compliance with it and again i mean i would like to your honor if you have any additional questions about murphy i mean i want to be clear that we think that that thirteen seventy three is constitutional under murphy under the the because the explicit just explicit distinction but the court drew between the statute in requirement is being imposed on the department of homeland security that's not a party to this case is not a party to the grant program the district court reached beyond the controversy here and imposed an affirmative warrant requirement there's no basis in  law the city doesn't defend it on the grounds that there was any basis in law for imposing it instead the city asserts that it has no practical effect but of course there's a difference between the city having a policy that they want to share release dates and a district court order the government to to obtain once when it wants to ask for information because it seeks to transfer custody in a safe way and again this is directly contrary to the i in a which twelve twenty six a provides for administrative wants and there's a long history of administrative arrest warrants will move all in this country and there was no basis for the district court to impose a judicial warrant requirement that there is clearly one that congress itself chose caused his findings about the city's substantial compliance and the a p a they need to run the table let me start with you started the narrow way i think purt for us to win and that's the way the seventh circuit has already found which is this court should buy me attorney general back the statutory authority to add the three conditions to congress's mandatory grant formula program that a limit on the condition can be and so we think the limit is exactly with the just arms as clerkly viewed as the limit are basically three buckets and there are fifty three different conditions judge randell that have been imposed there in the appendix of pages three ninety to four hundred and virtually all of them fall into three baskets one is where a statute says that a grantee is income bird in some information and just read i think your question to my friend on the other side was give me any analog to what you're doing here which is an absolute one hundred percent cut off of these funds and less the city as a whole compiled not just with the use of  but with the entire thing what was her answer her answer was nothing the best answer she gave you was that there is a prohibition in their prohibited expenditures that argument boomerangs if you look at the government appendix of page eleven that has the statute in there there's a specific statutory authority it is one zero one zero five d two which prohibits grantees on certain expenditures like luxury goods and the like and similar items that's the way the justice department thousand seventy seven has always understood this program the byrne track program is a is a is it is one a it is judged record you were saying it's a mandatory grant program it's not one that gives the attorney general discretion rather the whole idea was to take that away and say washington turns out doesn't know best and it's in the attorney general has a very limited discretion under this program if you adopt their construction and this is what the seventh circuit found you do massive violence  statute you destroy the architecture of the whole thing because as judge rainbow you said what is the limit to the other side the attorney general can impose any free floating condition that he wants he could say well you've got to comply with some arcane interpretation of the fair decades of cases like train and the seventh circuit in the city of chicago case that this is congress's spending power that's a core responsibility of congress and the executive doesn't have the ability to do violence to congress's appropriations decide we agree that there is no the you know it's a much looser standard but our point to use you don't have to get there the doctor constitutional avoid and says first they have to have statutory authority for what they are doing and just as a seven circuit bound just as every court they consider this is found there is no statutory authority for what they are doing so they may help our broader latitude under the spending clause we can talk about that i think that's a harder argument truthfully for us to weigh and i think we're right but the first question is do they have the statutory authority in the first place to impose these conditions and the answer to that undoubtedly has to be no given the structure of this particular statute because this does strip the attorney general  placing special conditions on all grants and we've argued that there's a subset what if it said and placing special conditions on all grants the bit make life different i think it might be a little bit better but you know i think the key point here in this is what the other courts have found it's like the seventh circuit is the first part it's a system for in general shall exercise such other powers as may be vested elsewhere in the code that isn't a way to actually give extra powers that's just saying it's a this is a who statute she says we're  making the statute meaningless absolutely not what we're saying what and what congress does in this is a bread and butter statute like all through the code when congress sets up an office they say what are the powers of this office here in two thousand and six the assistant attorney general was empowered before she had four programs under it now there's five because the bureau of justice statistics in two thousand and six being brought in and what this statute does is it says you want to know who's going to exercise the special conditions pal it's the assistant attorney general it doesn't create some free floating power to impose any condition that the assistant attorney general wants it just says you can exercise the powers that are given to you elsewhere in the house michel and why there was no argument pertaining to show upon if there was an ambiguity in connection with these particular statutes whether it be one one two or want to one fifty three and as i said i only have came up with one possible reason maybe congress step zero hadn't really delegated this authority to do so but is there anything other reasons why it's not being good while putting my former head on and trying to think about this i think the reason would be that the justice department historically taken the opposite position for decades and so it's a little difficult to a search on deference when you're flipping a position as much as they are here it's only waved here and of course we think it's not ambiguous and there are cases like the pen show in pentecostal case that the supreme court from two thousand and fifteen would say you have to look at the canons of construction including canons like the circuit city canon and ask is the statute really ambiguous before providing any deference but my guess as to why my friend on the other side is not seeking deference is because of the shift in positions that we're seeing here and something that judge belsen isolated particularly in his discussion of the administrative procedures act with the same issue came up in the ninth circuit or argument and i was over colby the government attorney hadn't developed it was kind of finally said well yeah ok but it's not really being relied on i wasn't quite sure of the reasoning yeah and i think it would be pretty dangerous for the shot one time even if they wanted to rely on it i think it may have and so are consequences for chevron itself if they did because chevron should be stretched this far to encompass a statute like this and to argue that that it's a play cobol or that it's a special condition i mean this is a special condition unlike any other special condition anywhere in the code brief on this is quite devastating and think there is no program anywhere in the code that gives it hundred percent fighting funding cut off to the attorney general when something is when when when when a grant is violating some condition no no no i mean you know we absolutely believe that you know if congress imposes certain conditions on grantees you know they're all through the code needs title six things like that those are things that are you know those are th that certainly in two thousand and sixteen and a blip of time for once they did and you know we think that that actually highlights the problem here i mean we're administrate you know that separation of powers is built on the idea that nobody's an in joke doesn't matter who the president is or the attorney general and they can pick up these powers and use them to two ends of their choosing whether even motivated by the best reasons and it's the job of this court as the train case says to police the use of executive discretion and to not allow you know as honey's general so whatever party to say this vague statute allows us to impose such very very severe conditions so we think that that's a problem we think that that's actually a feature all federal laws statutes and regulations apply couple to the award apply couple to the award doesn't allow the attorney general to just simply say applying the entire state any statute that might conceivably apply to the entity as a whole is the notice because when you do provide that notice first of all i mean you know a lot of the you know a lot of these people are detained only for four hours an average of fourteen hours and they want forty eight hours sent the notice which is just literally impossible when you're detaining people for short amounts of time but more importantly what the city found and that's why these policies go back for a long period of time these are just recent vintage the city has found that you when you when you require things like notice it starts to blur that will ation ship between ice in the city and induces people not to seek social services there's an advocacy brief filed by eight different set social services organizations in philadelphia that highlight some of the testimony at trial later there's nothing about par so i don't think it's relevant to as this case comes to the court may be relevant to other things and judge nelson of course didn't rely on pars in his decision to the contrary a page a one twenty nine he said pars axis is not really a big deal information it only includes country of birth in you know where country where someone was born of a dozen good citizenship information so a little bit of a rap with respect to that question about thirteen seventy three we think the simplest way to deal with that is to say as every court to consider the question that citizenship status and immigration status is not the release date the plain text of the statute in thirteen seventy three only talks about those two buckets citizenship status and immigration status and the release date is neither of those in court after court has information regarding or any it doesn't come on i don't think so it's not information regarding citizenship or immigration status it's you know it's tangentially related to deport ability or a move ability but congress you know knows exactly how to say that you know judge work in the san francisco decision actually e what you don't have here and judge rendell i heard you yesterday in the other immigration case and booking the whistle of cannon which is this idea that congress you know knows how to say something and if they contemporaneous statute didn't say it in one said or good clearly said in another that is a very very telling thing here and here you know congress eight times has been asked by the justice firm by other folks to impose these conditions banning conditions  law which was back to the one to one fifty three or no not at all not a goal so we don't think you're going to the point you just made if if congress does know how specifically limit applicable laws to certain statutes i'm looking at forty two u s c sixteen one fifty four g one says that federal officer must administer a program in a manner consistent with applicable federal laws and then governing awards or financial assistance contracts and other agreements so it specifically limited here there is no limit well i think the limit is first of all what is a political federal law so and in other possible federal law and under the circuit city canon which congress is presumed to know is they draft the statute here you have a specific term first which is oral provisions of this part and then it's followed by the residual clause quote all other political federal laws and it's a yes and all other federal laws right in so it which is exactly what the circuit city case that was was and any other employee was the language there and what the supreme court said there is if you look to the first part in defining the second and here that makes a lot of sense because otherwise you allow the justice department the attorney general on his whim to do violence to the entire architecture of what judge sirica noticed was the mandatory grant formula grant her and allow the attorney general to convert it into an entirely discretionary absolutely and certainly constitutional ones and we haven't gotten to that yet but we obviously think that there's a murphy problem and as you were saying that's a good segue if you will thank you it is you were saying that congress used the word apply couple here and the supreme look i could imagine if we were writing on a blank slate you know i could say this is not really a violation of the tenth amendment because it's a prohibition on a state having a policy it's you know almost a negative not affirmative which is  exactly exactly and here this is a really unique provision i'm not aware of anywhere else in the code like it because this is really kind of destroying the chain of command thirty and seventy three says that you know the senate says that  is sending in a provision of law a federal local or federal state regions you mean up or habit or in any way restrict a government official from sending or receiving this information and you know that is a really unusual thing to say for the federal government to come in and tell the city how how they can talk to their employees and the like are not able to regulate them what do you say to the preemption argument there i don't think the preemption argument goes much at all for them because the preemption argument is one in which it's one in which you know there's a regulation on private activity here there's no relationship there's no way i'd like to be thirteen seventy three speaks exclusively to state and local officials and that's how it operates here there's nothing else and have to show a private individual instead of a public official in order to would that is what the preemption canon is all about and here i think that term example of the airline deregulation proves our point because record what you pointed out which is on the statutory argument there is this statute ten two two eight which is found in our brief page forty four which i think is pretty devastating for them her you know that statute says  that says that you know you can only have this immigration function quote to the extent consistent with state and local law and she said well there's some legislative history which says that it's about federalization of officials or something like that  e circuits yeah so you know and you know that may be one motivation for the statute it is certainly not the only motivation and the text of the statute is very clear in saying look even when we're talking about these were really important cooperative relationships in which the federal government needs the states and localities to help them carry out immigration enforcement even then you can only do it quote to the extent consistent with state and local law and what they viewing is trying to come to this court and say no we should be able to tie the grant program and say now we can sweep aside your state and local law and that is something that i think statutorily is deeply problematic as well as constitutionally all you know the supreme court has never even upheld that statute only one justice just as a con or even spoke to it's possible constitutionality in dicta in the prince case so i'm not sure that you know if the spring court orders reach it but this is so far from a reporting statute is i was saying to judge randell this is a statute that doesn't even actually require reporting it bars a locality from having a policy to restrict its employees from providing information to ice and it severs the employee chain of command so it's not a recording statute it's something very different than that and of course that that statute is justice o'connor noted in her opinion was one that was chief judge to recuse words earlier in the argument ministerial that was the circumstance in which the states and localities already collecting all this information and there's not really any kind of deep seated policy objection to turning that information up or here this is very different it's kind of like to sample it's kind of like the federal government in some other administration saying state locality tell us where gun owners are tell us where their movements are tracked them and provide all that information to us and if they can do what they're doing here they as you about your chances under the spending clause if we get to four so with respect to the spending clause and even a constitutional arguments we think you know just belton's absolutely right but we think that the die a constitutional avoidance would say the first thing you do as so many courts have already done is to say that there's no statutory authority here that this is all true and you'd be the first court to disagree with that if you adopted her interpretation and prompt a circuit split with the seventh circuit so we think this case is easier the spending was but on the spending clause as judge sirica is opinion and koslow said is the supreme court has said you know in gold there has to be a reasonable calculation to address the particular purpose for which the funds are expended  require states to make their drinking age twenty one relating to expenditures on highways i think it's different i mean in both the supreme court found a quote direct relationship between the two and that's because you know people who are eighteen were going like why we grew up in chicago were driving to wisconsin because the drinking age was different taking the national highway and so on so i think that's what that was about this is congress gave you eat purposes for what burned jaggs about immigrations no where in there now officials to reduce crime and what they are doing is disempowering local official they are saying the city can't have these policies and here the testimony at trial is devastating program missioner loss from a what crime in philadelphia is at a forty year low why is it a forty year low in part because of policies like this that bring people out of the shadows so they are totally the opposite of the burn jack program that also sets up an industry to procedures  that's a test and then the question is do we need it for thirteen seventy three we think we need it even if it's compliance because this is not what the oil as this case comes to the court they're saying there's only one thing with thirteen seventy three that we're arguably violating and that's because we have a judicial warrant requirement and so they don't have all the release information as i said before release information is not in the text of their two hundred seventy three is every single court has found and if you read it that way is anything regarding as your question earlier was boy that's going to open the door to so many things eight u s c twelve thirty one says relevant to deport ability and removal isn't aliens nationality habits associations religion and things like that and so you know if if that were if avalanche was anything conceivably affecting remove ability to be turned over to the federal government they could then seek so many things so that's one problem with that and then with respect to the with respect to the access condition i think the evidence at trial showed that we comply very substantially with that we give the that we give ice there are six prison facilities they have access to all of them unless someone asserts their miranda rights they are spied jail facilities we give access to four of them the only one that we don't get access to is the p d f you and that is police headquarters and the evidence a trial explained why that's a circumstance in which people are detained on average of fourteen hours many are released after four hours and to bring people into allow ice agents into there is to destabilize the way that headquarters operates and you know and so the test is substantial compliance a seventy seven to eighty of his opinion and we think that this does substantially comply and meets the essence of what these conditions are about not perfect by any stretch not perfect from there point  it strikes the appropriate balance of the city for a long time for decades for over a decade has tried to strike in this regard between being sensitive to federal law enforcement trusts and state law enforcement interests but at the same time bringing people out of the shadows making sure they can obtain civil service is services without fear of reprisal whether it's victims witnesses people who have health concerns in domestic violence victims and the like what is  review over judge house findings substantial combiners i think i assume that because that does have a factual component and there was a trial here i think it would have to be clear or something like that and i think even there was a line in the seven circuit opinion in city chicago which suggests that would be the standard of review as well you would asked earlier about the about the judicial warrant requirement and there look i think that's the hardest part so it's a record to defend judge bells and i thought he got everything right including that but i do think that's the hardest thing to defend we do think that in the end he has reached the right and we have he has reached the right order but you know to the extent you can have concerns about the way the order is worded you know we don't have you know the hugest of objections to that i think that issue even before and so it was before and he was there my friend i said absolutely right we didn't ask judge belsen to rule specifically that way because our grant was actually pending at the time and we didn't want to encumber the fiscal two thousand and seventeen grant with another set of hearings about whether or not to impose this order or not but across not only across the parties for him but across all government entities but there are whole view is  executive and the department of homeland security has participated in that so i can't imagine that's really an objection their objection is to cite the right in miller treatise and say we didn't have an opportunity to answer this specific release relief and i think if you look at that page  so all right and miller is saying is as long as they've had an opportunity to deal with exactly the underlying allegations that gave rise to the specific relief that's enough and they of course have an opportunity to have a will sixty be motion rule fifty nine motion after this step was imposed they did none of that and so now they're complaining to this court and saying the order should be modified and i actually don't know that that procedurally you know is right they have had these opportunities in the past to assert their concerns and they haven't availed themselves of them and then just on the merits of this we think that that will judge's order does follow quite naturally from two of the conclusions judge belsen reached first is that the city's detainer order obligate city officials to honor the warrants and that's a reasonable and lawful exercise of the city's discretion that's the first thing you found and the second is that the justice department's attempts to force the city to abandon its warrant policy on lawful because it once had long into all of the merits concerns that we've been talking about and so for that reason i do think at the end of the day the judge be else and actually got it right even on that that is it flows pretty naturally from all of the different merits conclusions that he reached before and for you to reverse them again you have to find each one of these four different holdings is wrong and prompt a circuit split with the seventh circuit and every court to consider i think is that a standalone issue i think they're taking it up as a standalone issue for us given the way you were worded it which is you know warrant is required only quote to the extent ice is seeking a transfer of this information i think it's a limited warrant linux mint limited order and so it doesn't impose some huge obligation on the city but if you reversed us on all of the merits arguments then this part of the order obviously would fall if we got just one final question on the substantial compliance in those requirements there is an argument that the government makes in effect that you're complying with the notice requirement you prefer but not the one that actually exists the condition requires the city to provide the government people in this eighty two percent of the people who are in the cities even holding haven't even committed or aren't haven't been adjudicated to commit to commit a crime their big concern here is someone will come out who is a criminal most of the people they're even seeking this information about aren't criminals they're really concerned of course about the criminals and with respect to those criminals getting a warrant is judge belsen pound is the solution indeed in the last two years of all of the requests they've made under ten is belsen found have been people adjudicated of a crime so for every one of those people they can get a warrant and there is substantial compliance and that's the heart of their concern and that's why we think the city has struck the right balance here between providing that information for the criminals or criminal suspects and things like that but to go further than that and to say it applies to everyone is i think a bridge too far both statutorily and constitutionally thank you ver immigration removal proceedings are civil they follow it ministry of warrants ice could would work with the u s attorney's office to get a criminal warrant when they're prosecuting someone for illegal reentry but not for civil mov proceedings so there is no basis for that the city of philadelphia to require a warrant that congress chose not to require and i would like to make a few points in response first on the special conditions authority the city's position that in two thousand and six when congress added the phrase including placing special conditions on all grants and determining clarity purposes that congress didn't do anything they had given no meaning to that language they argue that in a lot of instances congress will have a provision that states that a particular government official can exercise certain duties including you know x y and z and that  and that may be true but here what's different is that congress added the including language there was nothing to clarify the city has identified anything to clarify and indeed there is nowhere else in all of t thirty por that refers to special conditions or priority purposes so on their view congress added this phrase telephone to absolutely nothing and there's just something a bit clarifying to me maybe before you know power vested was viewed as just doing certain things but maybe wasn't certain that it included adding special conditions and then clarified including special condition that another instead of saying and in addition may impose special conditions yeah that would be that would be the case media if there were some other grant program that allowed them to impose special conditions and it was unclear but here there's nowhere else that mentions either special commissions or priority purposes so that language would do absolutely nothing and again we also think that if there was another statute that said the a g could impose special conditions there wouldn't be any need for congress to clarify that his authority included imposing special conditions is there any magic to the word specialist compared to including conditions on yes or are we think that because of the way that it's phrase it says including placing special conditions on all grants if it is you said including placing conditions on all so someone might have thought that that meant placing uniform conditions that apply to all of the grants that o j p administers and so we think that congress chose the word special to indicate that they could could impose conditions for particular grant programs that that are different wouldn't it be more helpful to your position if this i asked before if including was instead the word and and imposing special conditions his book instead of including because including seems to most of us first as a subset of something it's either a subset of what the a jury previously has or is delegated by the attorney general which means the jury general has to have that authority to begin with we are if you think that the attorney general has the special conditions o with you have to have you have to have the authority in order to delegate it yes i understand that you're saying that generally the word including is is used to refer to the category that's already been defined  here so first of all we've noted in our brief cases in which the supreme court has and other courts have said that the word including can mean and but here what's what's critically important is the fact that congress added the including phrase and it would do no work it would do that and it it's an amendment and there was no reason to add it unless it was to make clear as the legislative history says to make clear that the a g is allowed to add special conditions and determine clarity purposes and in addition your honor proposed to require actual detention of aliens as opposed to merely the information sharing that section thirteen seventy three requires but i would like to talk about section thirteen seventy three to to correct a couple of things i mean the city the city doesn't at all address the interaction of the federal regulatory scheme with the state and local criminal regulation of aliens and we think that that's important both for explaining why it's the type of preemption provision t discussed in end and explaining why these are really minimal targeted conditions that are just designed to ensure that the city isn't interfering with federal law enforcement and again what happens is if the city takes someone in this is indeed criminal custody that person legally cannot be removed until they're released from from the city's custody and it would make the car in order for that system to work congress allowing the season states to have th on the condition that they want then interfere with the federal government's ability to take custody of the same people when they're released and that's the way that congress and vision the system work would work and that's why we think you know that that i itself under just obstacle preemption would would preempt certain policies you know that interfere with that and thirteen seventy three is naturally an express preemption provision that goes along with those provisions of the i in a to make clear that states and localities can't have policies that prohibit this sort of information sharing and we think that that's that's relevant both to the to the tenth amendment and just to illustrate that here the authority that the department has exercised is is very minimal it also relates to information regarding immigration status the other simplicity argues that there's another statute that says any information relating to aliens that is not the interpretation that we're advocating here this says information regarding immigration status here when an alien is released from custody that changes the legal status of whether he can be removed while he's in generally while he's in state criminal custody he cannot be removed but once he released he can and indeed often the i in a look choir's detention or removal of criminal aliens when they're released from state and local custody and so the fact that it's a legal change makes clear that it's different than any information regarding alien and we think that it's clear that the release date is information regarding immigration status because it bare it determines whether the alien can legally be removed and again i think that you know the missing child reporting statute would be called into question if the information sharing requirement that it's an issue here were unconstitutional we think that this is different than the examples the city is talking about the city is arguing that we are you know that the united states is requiring them to go out and find information and locate people and that's not at all what thirteen seventy three does all it does is prohibit policies that restrict the sharing of information that the city already has and we think that the court the supreme court hasn't has never held that such information steering restrictions would would violate the tenth amendment and this court shouldn't go that far both because we don't think it's really properly before the court because we think it's