execution on just one of the multiple grounds on which plaintiffs sought a preliminary injunction three supreme court justices have already indicated that the government is likely to prevail on that one ground let me just interrupt transplants the term it brings the soil it came with the old soil brings it with that we don't want what i understand your argument that men are can be a method but why what's your authority for the proposition that matter can only mean that i don't think we need to show that man or can only you know is not the key question because no your honor i think the key question in the case is what this term means using all the relevant tools  that makes palooza said that what congress was trying to do in moving from a statute that said the method of execution is hanging too to a statute that says the mayor of execution is that prescribe by the sentence by the state of this i can tell from the material cited reads every federal execution under the thirty seven dollars except for three were carried out by state execution and all those executions the marshall took the condemned person to the state for execution by the  pope correct here but they were conducted in a federal facility is correct but every since you want to see more on the thirty seven every execution under the thirty seven that was carried out in the make sure in that you matter means only nothing and that the attorney general has the authority to fill in all the details beyond that is manner means method in this case lethal injection everything else number of injections chemical used where can be filled in by the edgy right that's correct ok and those that come you're not asking for any difference we're not ok so and you're not in he retains custody during the appeals when it's time for the execution he quote releases the condemned person to marshal right going to plaintiff's argument that somehow congress and tell nominal just don't look when the plans are here just how how the statute wike that since you're not invoking any other authority and you're issues these standards right i think the attorney general bradley is charged with and is looking at in court orders i'm not i'm not questioning the attorney general's power issue regulation i'm i'm questioning where under this statute where there that marriage and the attorney general is general rule making authority with his authority over carrying out sentence says death as well as other sentences and i don't think it's that sort of questions at that level here that the attorney he could issue regulations regarding each of those he could for example issue regulations about how he's going to maintain custody or how are the details of the release going conditional regulations about the pentagon and the the that someone in the federal government has the authority to issue regulations about something is in question here the question is how much public is in place is this is this protocol regulation or is it a general statement policy is it a  we haven't we haven't made up my own agency action here your honor we haven't attempted to say that the ag is unavailable to review these what we have said is that we think that this court should resolve these challenges as expeditious possible consistent with the supreme court's recent struction in buckelew to not allow these method of execution challenges to to essentially provide a new means of post habeas to lay the supreme court in cases like hell leave it done in hear brief you suggest that you don't really need to have a protocol a regulation in this context that you could just implement the death penalty without such a regulation or protocol so i guess what was the reason for for issuing charged with implementing court orders or as you say we think there is at minimum a real question whether or not we needed to spell out the particular procedures but of course the federal government is free to be more transparent about its procedures that it might be strictly required to by was the word that this court uses that into the sort of thing that needs to go through notice and comment rule making and i notice that we've we've touched on that merits issue a few times that along with several other purely legal merits questions were something that the district court  not reach before you get to the other questions cannot stand the about the federal death penalty so you make a salt to me the soul turns on the meaning of the word manner and one consideration that cuts against you at least a little bit is that that fairy statue uses the word manner in a different provision you are not just looking aggravating factor when someone has committed a particularly heinous crime is not at the level strangulation or stabbing or gunshot the court is supposed to it's more granular it's  exactly and that's in part you consider to eliminate some of the arbitrariness of the supreme court was concerned about with the death penalty that you're supposed to look at the degree of granularity to make sure that the particular circumstances of a case warrants this type of penalty now there is simply nothing about the context or the history or the very impossible consequences that would flow from leading manner and the like to  about those three and we know in michigan the state had not carried out an execution and i believe in over one hundred years the death penalty was still technically on the books but they didn't they didn't pursue jurors and in fact  i believe that the mission guy being governor was adamantly opposed to any executions happening within the state we think this goes to sort of the average doesn't you know what the what happened go to that part of the rest of the story i'm writing the story i something about it it's not on the record here was the story is that he went to the attorney general right and said don't execute this person michigan and that attorney general was the same one who proposed thirty seven statute and he said execution had to be in michigan and there's no hint that he thought that the execution had to occur under what the governor or the laws of michigan said it had to be and this brings up the real specter of state obstructionism or even just any even in place rather than place i believe that there were there is a law and impressively long list of witnesses in the kansas statute that the warden of here this is obliged to invite the execution and i don't think there's anything in the historical that jones also would have complied with our understanding of the aca here as well but we're not neither of those we think that the particular question here has not let it get it right notably they say occurred under conditions that would have violated oklahoma is at minimum it's location requiring me to take a step back i think of course manner is a very important to the states but say we assume for a moment that manner could mean either the method of execution or the method plus other procedures i think event to figure out what manner means we are to have to look at many of the other birds and three thousand five hundred and ninety six dollars which they're not too many arguments about right so it says that you know the u s marshal who shall supervise implementation of the sentence in the manner prescribed by the law of the state so i guess thinking about those words i mean supervise is usually a term that includes something that includes more discretion than for instance just choosing a method right supervisor is often a term that is used more broadly implementation of the sentence is often a term even  ideology that use more more broadly to include a number of different protocol and then and then i think it's important it is prescribed by the wall of the state there hasn't been much discussion about who was of the state what that includes right law of the state for instance might properly just mean state statutory law for instance not just you know not any other procedures that a state means to use some wondering if you can explain why your reading of manner fits within that whole phrase which also includes supervised implementation and prescribed by law certainly on the on the st two terms i think your observation that they make you know the need to do more to exercise  some discretion very much supports her reading of course under the district court's reading we simply need we have no such discretion we simply go and we played out exactly what ever in the end there's a manual as and then we try to follow most apparently but not all since apparently we can limit itself to anything that happens to be entrenched in the state statute just report was talking about things like particular the insertion procedures that's of it i'm just wondering what you think the statute means when it says prescribed by the  in most states there are state law when they use the word man or they mean it the same way the federal government has always used that term to mean lethal injection there is i believe one outlier statute mississippi that uses the word s a lethal injection certain type of drug protocol but by and large that her manner was used by states in the same way that the federal government it's not just about the term matter maybe maybe the marshal is bound only to follow those things that are within a state statutes well that certainly would be a more and then and then the protocol could cover other you know other procedures and other decisions that are not within the states that certainly would be a more limited opinion the more basis than the one the district court i should hear but i want to push back on the idea that that would have been what congress intended and of course that's what we're guided by here what did congress mean to do and when congress members actually law of the state we should be looking to his manner and when you look at the consequences of a reading like the one you have posited why would congress have intended it be the exact agreed of constraint on a federal contemplates the use of federal facilities i think that's right your honor but i think just using that looking at that at the plain language that shows when congress said that the federal government may not that they have to use personnel i think congress was consistent with our understanding recognizing that manner would not include all the subsidiary procedures which often include state locations and facilities and i think the only  that's raised as an affirmative authorization to the government to choose to do something so i think we're just fighting the language and structure of the statute we sort of bend over backwards to import the meaning of manner that is historical here moreover look into the consequences again why would congress have intended that the federal government among the sort of many ways to implement in that it would you know the sentence in the manner prescribed so all of these that you know we have slightly different burbs used alone but they're all modifying manner and i i again the nine hundred and thirty seven  execution so if you look at page thirty three dollars page thirty seven of that hearing it's it's articulating the concerns that right now the only executions that we could use are lethal injection method or as contemplated at the time by the federal regime would be those quote in which lethal injection was permissible in the state in which the inmate was convicted that was the disconnect there were a number of states at the time that did not authorize lethal injection dujail was worried that this and ninety six this one relates to situations where the federal death penalty is imposed in a state where there is no death penalty right yes the district takes a state which has a death penalty and then this is what i want to ask you the statute says and the sentence shall be implemented in the latter state right yes so why do you why do you think that language is there executions in a state where we knew that the state itself had chosen not to have capital punishment and that's one possible reason but there's nothing in the legislative history to explain why this language which carried over from the  exists well maybe one explanation for why it's in this cause and not the previous one is that it was obvious in the previous cause that carried out in a matter prescribed by the state in a death penalty statement in the state so i want to got to the nd cause that is not death penalty states congress had to be explicit that it wanted those death penalty those executions to also occur in those states i think that's hard to  under your view the attorney general could in for all executions in states with the death penalty the attorney general could under your theory choose any place doesn't have to choose india right correct use anyplace right that's right ok so under your view the way this works is that the attorney general picks the location of executions where the crime occurs and a death penalty state but when the crime occurs in our death penalty states the district judge does it right i think that's right what's that why would congress and set up  scheme well i think again i think the fact that congress has strictures about location only in the latter state the vision indicates that congress was not so you're not answering my question i'm asking you why congress would  like why it would have chosen such a system and where where the place of execution is chosen in some cases by the attorney general in other cases by the district  fact that it rested in the court versus the attorney general i don't think tells us much about what manner means you know that what the book but the questions you've been getting from me and from joe drou would speak for myself what i'm trying to understand here and i think judge aroused too is what this statute the whole statute and matter is interpreted in light of all the maybe there's something is it there's something maybe the debate about manner isn't the right debate maybe than maybe the fundamental debate here are the fundamental proposition of thirty five is that congress and i get this is just an idea i'm not telling you this is what i think if you read three thousand five hundred and ninety six with the limited delegation to the attorney general and all the references to the state and the history the pre federal  just looks like is it kyra's was basically besting responsibility for carrying out federal death penalties in the states and if that's the case the word matter isn't so important anymore because obviously time the federal government's hands to make sure that federal executions happened responsibly and one way we know that congress did not intend to say the states are in charge here is three thousand five hundred and ninety seven dollars which specifically in both thirty seven  cents so that said that the federal government may if congress wanted to put the states in the driver's seat and say you just need to make sure that you do whatever the state says it would not have used a permissive term in th you look at the statute in the history it looks like congress expected that to be the normal course and in fact when congress passed three thousand five hundred and ninety six again like that tell me if i'm wrong about this there was one person on that that is correct but again there and i think that i'm also going to quarrel with your characterization of what happened under the nine hundred and thirty seven act i think all that from its original sin one thousand nine hundred and thirty seven when both the attorney general recommended that we switch to a regime that depended on state method such as at the level of generality of electrician an electric houston or gas and when congress itself adopted that it did not intend to sweep in whatever subsidiary procedure is a state may or may not have chosen to research and it's law and we know that there were federal executions carried out when the state was unwilling i doubt that the governor of michigan had there been procedures on the book at that time i do not think that governor murphy would have said yes please come in and use our facilities we will tell you exactly how we conduct a hanging and it is so what remarkable that plaintive suggests no evidence that the sort of understanding included such details as the broadly and to the state laws specify the procedures at that level of detail i think a member of the states don't need them so they specify little injection but not a specific drug that's to be used as that will add a statutory level that's right if you said no the district court was wrong to go as far as it dead you simply look at the state statutes and look to like that state legislature chose to sort of put in a statute versus a regulation versus a prison manual i think it's pretty in congress to think that congress not the degree of federal control over how to implement responsibly a federal execution was going to depend on the happenstance of exactly where in its law or regulation or  guide it's a state chose to write out very detailed procedures i got it is remarkable to think congress is that so strange i mean you can imagine that congress wants to allow this to you know to deter defer to the states about issues regarding the death penalty that were important enough for them to enact in positive law i don't know why that would be so peculiar i mean you yourself said it's understandable that congress would want regulations that required the call for federal implementation of executions in accordance with federal standards right yes that lethal injection really if they were in existence the right yes and the attorney general  time word congress that that the bill they were considering imposing the the procedures contemplate a return to an earlier system in which the federal government did not directly carry out executions but made arrangements for states to do it so how do we think about that since since we since at the time congressman a certified ninety six dollars there were regulations in place like the ones you have but congress including the attorney general's warning that this statute would return us to a previous system so i think that i think about that i think you would think about it in terms of what state law provided at the time and at the time a significant number of states did not permit lethal level of the fact that ok we have a federal regulation that says the federal government is only willing to use lethal injection you have a that comes along and says you know you need to look at the net you need to look to whether a state uses lethal injection  the in the legislative history about the ninety four act and i think if you look at the ninety five dollars hearing that concern about the degree of non uniformity is very clearly page that to the method of execution now of course this concern disappeared over time states around the same time started adopting all the all adopted eventually lethal injection as the method so there and i don't believe there were any federal executions that needed to go forward believe both jones and mcveigh their their state did provide for an execution by lethal injection so the concern dissipated over time but it is that concern that lacked that degree of non uniformity we agree that there was some degree of  uniformity that was introduced but it is a question of degree and you say you think the attorney general once the journey journals the only obligation is to use lethal injection right he can fill in all the of details and i know you mean certainly the number of injections you also does he also have authority to select the substance certainly or so in this case the substances and substances stage are using right know and  general's discretion to and what congress would have intended the federal government to be able to pick a method and manner of injection that is both practicable that hasn't been sort of put out of practice by states that may not have had a reason update their protocols and also that the federal government is permitted to choose among the wide range of acceptable means of implementing lethal injection under the if amendment that is arranged and we should be allowed to choose and there's no reason congress would have wanted to or stall us from choosing the math and that would be what would you turn in general do and i think maybe there may be a case like this suppose a district judge in a non death penalty state doesn't take india it has not the word manner you say mr murray in california which seemed to cut in your favor your friends on the other side say mississippi am colorado which seem to cut against you at looks a little thin and looks like it's a close race do we know anything beyond what we know beyond those four states i mean i don't disagree that to use lethal injections we actually don't think colorado is a counterexample this is if he does we are in the right that they suggest but again i think there are more states and i apologize we have not done a survey of the something like forty states that had the death penalty other thing to figure out exactly the degree of granularity but i i do know that something like i think the majority of states do specify sort of who is those to be there from going that next degree of granularity down against reading this we have that even that nd line of granularity moreover if we're talking about sort of how far down do you go you get into very difficult questions about ok on their reading of man or how much is not versus too detailed and again i want to return to their suggestion that there is some form of de minimis exception that we should deport shrinkwrapped on to this i assume that they propose this because it could be unworkable to comply potentially even at the statutory level but certainly at the level the district court helped with every every jot of state statute and there are no guy posts in the suggestion for how the government would know which ones are of the sort of significance that congress intended to entrench in this law of course congress itself gives no indication and we say that's because it never contemplated that the federal government or courts would be in this endeavor of trying to figure out what is the right level of granularity and i think that this would put courts in a position supreme court has said they should not  needed the attorney general should go back to congress and say look these are really from the little you know questions that the you know politically accountable branches of government should make a decision about what executive branch is politically accountable to your honor and i think to the states i mean all these decisions about not be able to pick a single uniform you know rational more humane you know whatever adjectives you want to use protocol and that's just a consequence of a choice made to leave some of these decisions to the states and you can say that about any statute that leads certain decisions to the states i think that presuppose an answer to the central question here which is how much of the state start to congress and hand in the statute and on our reading when historically base d it leaves the federal government accountable for care out federal executions any responsible way they're reading means that the federal government if it had to either sort of hand over responsibility for the execution to the state personnel because there was no practical way for the federal government itself to do it or if it had just sort of try it's best to read every detail of state procedure and follow it if something goes wrong it's hard to know whom to hold accountable to hold accountable the federal ones the federal officials who carried out this execution or who authorized this execution based by my state personnel or does the federal government say don't blame us we were required do that by the states the much more natural reading of the statute is that congress intended to leave federal executions in their responsibility in the keeping of the federal government now the government may choose to stick the saudis and of course it would bear any political consequences if something went wrong after it had chosen to contract with the state to carry it out but i think let me ask you though that you this is my this is my last text to question i promise and it follows from what you just said to judge wright that what congress clearly intended here was to have the federal government execute its prisoners in accordance with its state so my question then is what do you make of this language in th and ninety six it says the attorney general show release the person to the custody of a united states marshal ok so before the three plaintiffs in this case  know b o b facility right correct so two questions one if congress had and had expected these executions to be carried out by the federal government pursuit of federal standard why did it need to say anything at all about the marshals and under federal law the marshals are responsible for executing court for implementing court orders and for transfer of prisoners that's what marshals do so in the terrible situation what what does this mean when the appeals are completed the attorney general releases him to the custody of a marshal that doesn't that suggest that the executions going to be somewhere other than the federal government  and by default have the u s marshal who i believe since seventy nine he has played a role in federal executions and certainly has experience in this area and to be involved in the process there does not suggest some sort of fundamental distinction between t that handles all the oject and so the you know i think the attorney general would have been free to reassign someone to the u s marshals rules of course that's not what happened the marshal who continues to play a supervisory role in executions under the protocol announced here history consequences and i'd like to start with the text i actually like the structured around your question about that entire line of text because i think it is important to look at that entire line finally i'm sorry to interrupt you do you agree with the government that we can just deal with america of the state so st with respect to a lot of the state this of course isn't an argument that the government made probably for good reason that the law of the state is confined to statutes but the other good reason is that the supreme court for many decades even as look at chrysler versus versus brown from one thousand nine hundred and seventy nine so a lot of the state is definitely more capacious than just statutes getting back to the front of the text supervise implementation supervise of course has to be read in terms of what is being supervised and what is being supervised is implementation of the sentence and i want to get to the sentence as well but just because an implementation because the one thing i don't think we heard other than your question judge raul was an explanation about how implementation into this particular analysis i suspect that is because you didn't see it in the government's reply brief either the government understands what implementation rea you at the top of the a dent in that we're challenging it says the simple death sentence implementation procedures implement doesn't help you any implementation could implementation seems broader down simply method of execution but it could mean it could be coextensive with manner and manner means procedures which is your theory it could mean you implement the sentence and one thing you have to do is follow the method of execution so i don't see how the breadth of implementation tends to can argument we take that to its logical conclusion then manner means any process specified in the positive law of the state statutes regs a protocol which has finding of fact anything i would say no to that for this reason and i think this actually goes to one of the consequences that the government and this paterson today have flagged and you carve out you have an argument for carving out a place and you have an argument for carving out a minimalist and we can talk about those but it at a minimum you're saying everything else well but i want to touch on what that means when i say de minimus ok what we're talking about here is the manner of implementing the sentence in other words the manner of actually doing the death so there are i think judge around you might have asked a question about how detailed these particular protocols are they vary of course there are some that are very targeted to the particulars of the lethal injection what is the i v process who monitors the prisoner who is is the are physicians over those types of things but there are other protocols of course that talk about much more they talk about how many phone calls a prisoner gets in the days before the execution they talk about who's in the chamber those sorts of things that is not part of the manner of the implementing the sentence that is why w talk we can talk about it in terms of dominican to minimize exception you can talk about it in terms of harmless error you can talk about in terms of standing what a prisoner have standing to so and so if we go to the protocol two thousand and nineteen protocol always says administrative record page three hundred and sixty four there is a copy of the judge had legit pinioned in the ohio execution protocol cases and i want to focus in on something he says on that page which is he discusses the procedures that ensure that executions are carried out humanely that is his quote and there he gives examples in the examples he says are including instructions for how to place the i v a consciousness check training requirements for execution personnel so and each of each of the by the way of course is called a method of execution case but they're not challenging lethal injection they are challenging aspects of the lethal injection process and if you look at those cases and what they are challenging and what the courts have said is important for the question the judge had little posed how was this execution to be carried out humanely what you'll see is the particulars of the drug protocol of course in all of them the dosages were issue in babies the strap being made to the execution table thirty minutes prior i covered i think i think you know but i think that the thirty minutes prior words there are many different state protocols you can look  missouri's for example that has a very detailed a timed protocol starting twenty four hours i think before the execution there is there is not a sense in which that pertains to the manner of execution in anything other than a completely tangential way so the thirty minutes before i don't think would be covered i do think when you come to the question about what the prisoner is experiencing those types of things i'd be placement monitoring consciousness ch qualifications dosage those are the core of any execution protocol and that is what we're talking about when we talk about man or not you know what time the prisoner gets to make a call or what  needs of course that you can't use federal facilities federal personnel so that would not be a part of the manner except it's not written as an exception i know that it's really been if it were an exception if manner of means that the fact that it was drafted in some different way i think doesn't undermine the reasoning of man or it's a good it's a very odd way to create an exception if it's manner means all state process no not a very odd way to say except with regard to whether the facilities state or federal i think it also goes back to the judge katz as to to what i was describing as the scope of manner right because the place of person carrying it out as long as that person is qualified which is a question of humaneness of prisoner dignity under those cases who exactly carries it out is not part of the matter so whether we talk about it as a carve determine where this mine is i mean because you're suggesting it's not everything that's in a positive wall with about statutory or regulatory law of the state but it's something else i mean how is a federal court supposed to sort out what is positive manner and what's not because your line is saying not everything not necessarily even everything in war and you can have a number of different things that could be included a number of things you say are definitely not included i mean is that really something that we out i think it is need if it hasn't been something that you've been called upon to sort out yet because this is the government's position as as miss patterson mentioned judge kadal is message means lethal injection full stop so they don't get into a question about what manner could mean if it means as it must something more than just lethal injection injection it has to mean in addition to that for example the drugs and the dosages and so forth but i think the ways that courts would deal with it are in among the ways that i mentioned are earlier i think the judge catches which are questions about standing if someone comes in one thousand lawsuits saying i want my dinner six hours before the execution and not eight that strikes me as not something perhaps that is likely to bear on the manner of execution questions about harmless error under the a p a which of course has the provision the do do  do know this must be taken of the rule of harmless error that's another way that a court could manage it but i think even the government as i said understands what it means for two to pass procedures that implement execution and if you look even at the detail state procedures they break down into different sections there's a section on media protocol there's a section on the visitors and witnesses and there's a section on execution so i think it's quite easy in fact for a chord and for the federal government which has been doing this for many decades to look at the execution procedures the procedures that are meant to effectuate a humane execution and be able to map their practice on to that practice i want to say one thing your kids do i mean both both you've done jim and the original protocol mix together provisions that you say are covered on provision the fact that you can't isolate a couple things like the identity shall be shielded the person will be strapped thirty minutes in advance to the nature of that document is as miss patterson also said to try to ensure a humane execution so i think a judge rouse question the way to sort out those issues is just as i described them does this bear on whether an execution is humane and the way the judge kathleen you don't like it you don't think a very creative lawyer faced with an imminent execution could come up with some argument that being strapped to the table for half an hour itself induces an extra level of terror i think i think i think there are here i think is are we thomastown how much just manners we thought and yes seems like you're you're no answer to questions like that it's less than definitive i don't think take witnesses suppose suppose an inmate says you know it's really important to me to have my minor child press federal protocol sesno i in my estimation that that search i will say this that certainly has not been in any of the cases i have read involving methadone but we're getting more and more granular we've gone from challenges to method to challenges to drugs and now you're telling us it's challenges to whether you use three syringes or six but perhaps perhaps we can look at this way the state procedures that we're talking about of course have been repeatedly repeatedly brought under challenge so this is not what we're arguing for which is the reading of manner that goes that hughes most closely to the text into the word implementation  to the way the government has thought of that word which we can get to in a moment but this is not you talking about manner in terms of talking about the aspects of an execution that make a prisoners that that make it as humane as possible for the prisoner if that's not a new concept and it doesn't carve out a new mood opportunities or material for lawyers those opportunities in that material have been there all along in the state protocols weirds that standard come from in the using it as an example of how the courts have identified be aspects of the execution that pertain to the manner of executions of course it's not in the statute what the statutory hokie is in the was attempting to do with the reference to the to the catholic phrase is what does that mean implementation in the manner prescribed of the sentence itself not the witnesses not of when the curtain opens or  but when the execution itself happens what is that in the tape you can talk a little bit about what this protocol is because i think your position is that it's a kind of legislative will that it should that it required some kind of like a general policy statement right or a procedural i mean the agenda you know has quite a few carve outs right that it has to be followed on you know as many you know unless you know there are other circumstances right as may be required by other circumstances there are enormous number of carve outs even in the protocol itself right there's you know this idea that you know it's very open ended right it reads much more like a statement of policy or rule to your point about the open ended this i i i would resist that a little bit because i think most of the aspects of this protocol are in place in fact quite closed and the director shall do x the director shall do why the director shall z there are a couple open ended opportunities for the director depending on the circumstances presented by that execution to alter a particular approach but that itself doesn't take this out of any kind of a binding directive that has an effect on these prisoners the example i think that the government gives is with respect to winter but this is just sort of a procedural challenge and therefore this is just a policy issue this has a real effects on would something like the u s attorney's manual have to go through notice and comment will make it i would say i would say no as to the u s attorney's manual but why is that different from this protocol because this i would argue and a that the reason that we're a little bit hamstrung talking about this of course is of the district where it hasn't fully analyzed this but what i would say is when you have a series of commands that purports to affect an execution of another person that that person has some rights that are bound up in that process not so much perhaps with the more generalized and more generally applicable u s attorneys but with respect to the history of this statute just want to make one point if i crystal clear example that congress in the in the particular context of method mode of process of execution used  she didn't regulate the length of the rope the width of the rope where the rope is placed on the knack right which are the analogs of which drug and how many syringes something like that it didn't but i think i think this is an important point and i think it came up during this patterson's argument as well is if there is no protocol in place to carry out an execution then of course the statute the nd part of three thousand five hundred and ninety six dollars provides for what happens which is that the government goes to the sentencing court and asks the sentencing court to send that particular prisoner to a state that does have the death penalty in judge hill in response to your question the case perhaps it's useful here is us versus sampson which was a he's the person could be executed in new hampshire in a federal facility yes yes indeed that was that was a ruling of the court and i i don't think maybe misnomers and correct me that the government is challenging that particular ruling i right what what how would a competent speaker of english have understood the word manner in the context of a an execution style and  changed pretty dramatically that seemingly common unsettled understanding i think the government has already done for us that the government's understanding in one thousand nine hundred and ninety three of what manner me was that it now the government's response to this in the reply brief it's decided case from the supreme court that says yes you can usually construe the words the same way but when it's very clear that they're not construed the same way and they don't construe the same way that case of course if you look at it and i urge you to are you tell us look at the same statute which presumptively we would but on the other hand that other provision is addressed to a very different set of issues with its own legal soil right the whole jurisprudence of aggravating circumstances under which something like as opposed to the government's theory which is you're you're looking across statutes back in time but with respect to the precise issue in the case which is method of execution but but i think i think the government's argument on this score it is a little bit of it's a dixit and a little bit of focusing overly much on manner now we've we've talked about the role that implementing plays in this and we've talked about the fact a couple times that the government itself and not just in that final rule has noted that the nine hundred and thirty seven dollars act requires federal executions to be dependent on procedures in the states miss patterson mentioned the latest legislative history in the various attempts to change this law and she talked about the fact that while not a lot of those attempts were happening there were execution methods available in other states that weren't lethal injection but by two thousand and two all states but one had got to be the injection and in two thousand and six the head of the d o j capital case unit margaret griffey came to congress and said the prior law did this law returns us to the prior law which makes us dependent on procedures of the states so it was very clear even in two thousand and six when there came into congress with in two thousand and six exemption or state procedures that's much less helpful to you if the background law is that states permit different execution methods that would  a that would be a true statement there are there are different procedures one state is electrocution and five states are lethal injection well but but now i think we're we're getting into an argument that even the government is making which is procedure is just means method art it's an argument that procedure is a product term but they're using it in context a method is a subset of a procedure i think that i think that maybe an overly strained reading of that word which is perhaps why the government has an adopted proceed here is used by the states the government understood a couple a decade and a half before margaret griffy came to congress means the procedures used by the states to effectuate the execution to this is a statute that delegates to states the responsibility to do something and the responsibility is to prescribe methods of execution manner of execution implement in the manner prescribed by the states so in that respect it's like any other statute as i think you said that confers certain responsibilities on the states now the federal government has the opportunity and has taken it to try to encourage congress to change that law but what it can't do is override the program going to the states to set the manner of execution do you think they're going to do you think that the department of justice can issue a protocol that fills in any gaps in state procedure so you know a state that has you know you know very bare bones procedures that this protocol apply there i think if a state has bare bones procedures you know that there are states for example that have no protocol in place so for example california the government talks about the california moratorium it's not just in your program there is no protocol in place so in those circumstances where something is either not in place or very bare bones there's a provision for how the government deals with that as well in the statute right which is they go to the nd part of three thousand five hundred and ninety six and they go to the sentencing court and they say this law does not provide for implementing the sentence now there may be some kind of gray area between a bare bones  protocol and the law that doesn't provide for implementation of the sentence but i don't i think the question about the government's gap filling authority is not a or something the government has called on yet for that categorical reason the government says this is our protocol and we're sticking with that so that that bare bones part of the question hasn't come up it's not likely to come up because all of the protocols that i've reviewed far from being very bones and because of the number of challenges that are raised to these protocols are very detailed but the details matter the details aren't just there for decoration the details about the syringes matter of the details about how the i v is placed matters the details about how closely the pri monitored the consciousness which is something that is present in all four of these states burgles and i think governments that matters those are the sorts of things that courts have found to matter let me say one more thing before you go on let me ask you  a couple sort of general questions we spent a lot of time with ms patterson talking about the history the pre ninety four history experience under the thirty seven statute yes the number of  got any conclusions from that is that relevant to what i think the the the general conclusion that i would draw is that the federal government and the u s marshals who have been responsible for this task since the late seventeen hundreds they understand that they are to go to the states to carry out these executions now the government will point to examples you know that wasn't about the three that were do city i think what we would say to that i think what we see in our response of briefing is the fact that you can point to counter examples or aberrations doesn't somehow give the path of the government the federal government the power to do something it doesn't otherwise have there's not there's not a kind of adverse possession theory to this the fact that we're going to be with mcveigh was executed in a certain way that mr jones was executed in a certain way neither of those two by the way challenge the protocol executions but the fact that those executions occurred under a federal protocol that was unchallenged doesn't mean the government has the authority to issue with that or protocol it just means that nobody challenged it in that case and we're challenging it now so what was just another question about our discussion with miss miss patterson you you like she focus on the word man are there other parts of thirty five dollars of this statute that you find relevant that we should be looking at you do when you get if you back out the camera lens a little bit and go get the entire phrase that's at issue here implemented in the manner supervise implementation in the manner prescribed by the law of the state each of those elements and this is what i broke down a little bit earlier i think has a role the most important role and the thing you have not heard the government answer is this question about implementation implementation is something that the government uses w describes the very procedures that we're talking about so that's step one step two if you back up a little bit further and you look at the statute more generally what you will see in keeping with your observation i think judge table your st question is  this statute assigns certain responsibilities to certain entities not just the attorney general who then hands the prisoner over and the point at which the sentence is to be carried out to the u s marshal but to the courts to the federal court system in the event that a law does not provide for the death penalty the sentence of death the avenue is not for the federal government to impose its own protocol the avenue prescribed by the statute and three thousand five hundred and ninety six dollars is to go to the sentencing court and say send us to another state and just as you said judge table it doesn't need to be indiana the government can ask for indiana but the reason that mr sampson was sent to new hampshire was because it was close to massachusetts and the governor the court there decided that it was important but the execution be carried out in a place where perhaps the witnesses or the victims could come and attend so there's there's no way to read the government's  ninety seven dollars i think plays an important role in establishing that the federal government doesn't have to carry out these procedures by itself and that's for good reason course you know that the u s marshals for a very long time w responsibility for executions the federal government has only executed thirty seven people in the last one hundred years the people who know what they're doing are the states that are carrying out the death penalty so three thousand five hundred and ninety seven is designed to permit attorney general for death panel the protocols issued by the attorney general to fill in what you call the non substantive or not important parts  of certainly to fill it i think there's two different questions that the attorney general's you can certainly doesn't need to call upon a state facility is or person now that the u s marshal in that instance would supervise the federal execution in keeping with the manner that the state law prescribes and that could be done in the interior of hope more is texas that who be done in terre haute or in texas as long as to be the execution itself the caring out of the sentence is done in the way that the law of the sentencing state prescribes now the the question about it whether and i'm sorry forgot the nd part of your question but they it there's a question about whether the government and whether that whether the attorney general could i move what's assume the your you prevail here could be could the attorney general than issue a nd set of protocols their address stashes implement the sentence in the manner so the b o p protocol that the long form protocol that was issued in two thousand and nineteen has many aspects that are not relevant to the manner of executions so the be zero p certain we can issues some kind of a protocol that goes to nat what it can't do under this statute is impinge on the states parag and hiv to set forced the protocols that preteen to the execution itself and that is what the the got government purported to do here and that is what the district court found wanting know answer this but let's assume you prevail here and i could be governor could take and take the three prisoners from the death penalty states texas missouri and arkansas the the three to the marshal who would then take them to those three states to supervise or execution there as long as the executions were carried out in accordance with the respective state protocol i think the answer is yes and let me make one more point with respect to recalcitrant states because this is a policy point that the government raised and i want to make the legal in a factual observation actual observation is that the  democratic governors of states are still the death penalty are five and all of them have committed to either to uphold the death penalty so that's the factual response the legal response is even if you can hypothesize a rule governor of  state that has an active death penalty in which there is a federal defendant and an execution is to be carried out the solution is in fact contained in one of the cases that the government cites to you in its reply which is the reconstruction finance corporation versus beaver county pennsylvania supreme court case from one thousand nine hundred and forty six and i gave government counsel a copy of that case before we came in today what that he says is congressional purpose is best accomplished by application of several state rules so long as it is plain as it is here in that case that the state will do not affect a discrimination against the government or run counter to the terms of the federal act so what the supreme court has said in that case at another place called little government's ability to do its job the government of course has many options number one if the state doesn't withhold its protocol and by the way the three that don't make their protocol publicly available are alabama louisiana and south carolina so i don't think the government would have trouble maintaining those protocols but let's say it does the government can go to court and ask for the protocols on what basis because the government needs the protocol in order to carry out its  entitlement to a document that state law makes confidential it gives the government entitlement to understand perhaps under the under some kind of protective order the manner of the execution that it is w entitle the government to that document the the the obligation of the government to carry out a sentence in accordance with three thousand five hundred and ninety six but even even if there's even if he said that is and i think that's the most modest way that is that is where i think that we construction finance and will make maziar in case come and by the way you understand that this is all i know the golden rule that i'm not supposed to say it's a hypothetical this is all purely hypothetical for the reasons that i've said there is no recalcitrant state in a position to stop the death penalty from being carried out but here's the thing or if there were there is there are states that have a moratorium right yes yes and the federal government went to california and said please execute some you think it's unrealistic that they would say well no thank you because we are executive has made a policy judgment that we're going to reconsider capital punishment and stop it at least for the foreseeable future i think it's not unrealistic at all that california would say that the issue with california as i mentioned earlier is not just a moratorium there is no protocol in place and what the statu provides in that event is if the law the state does not provide for implementation community service or print was not just ok california has a death penalty on its books correct but your point is what why would why would they be able to have one of all it does not have one it all that's right and there are countries no legal requirement that a state spell out all these details by regulation or by protocol just do it the old fashioned way which is have a statute that says if you commit the following offense with the following aggravating circumstances you get death by lethal injection period full stop i think the reason that many states have the protocols that we've been discussing that was because courts of course  way beyond any th amendment claim that's ever succeeded i mean even challenges to topwater methods it's not a single one that has succeeded to be very clear though this this is not an eighty eight dollars and then i understand this challenge and the e p a challenge is with respect to the procedures that the federal government has dictated they are different understood demonstrably we're talking about how realistic or not the problem is when states have the death penalty on the books and less well some protocol stands say the federal law that there's two responses again i am not familiar with the state that is actively carrying out the death penalty that does not have a full some procedure the  what the method of the sentences but but the california law doesn't have a protocol in place and our position and i suspect it would be the guy who's going back to your earlier question more means not just the statute but everything else yes and so that the governor of california announced you would say to one district europe they would say to a district judge in california the law the state in california does not provide right for the implementation of that this is happened in several states i think it happened in illinois it you know had been executing people regularly it has happened in several states so what happens in that situation think there are a couple different avenues you know one of them is as i've mentioned which is if the government wishes it can go into the sentencing court and say the law of the state does not provide for us to carry out this execution sentencing court could disagree right the sentencing court could say no the law the state provides for what it provides for why does the district court in your case the california district court pick indiana the california district court does not need to pick indiana it would it would need to pick another state that has a death but the fact is that the walk out of one you've still provide for yes but but with respect to your earlier point though there is a phrase in that statute when it comes to the sentencing court assigning a different stay cool in the district court and invoke the the the latter stay close yes i believe it could and i think the government presumably will argue that it could regardless of the moratorium because the law does not provide for implementation of the sentence and under the reading of the law that the supreme court has endorsed but again one of those i mean so i was concerned earlier about the why drawing problem for what the for what the executive branch could do but now it seems that there might also be a line drawing problem for when a district court would have jurisdiction to assign this to another state and so it's i mean some of the comments that you made suggest that that might turn on how detail the procedures of a particular state so even a state that has the death penalty and has you know maybe some protocols but not enough protocols for the government to move forward well then that creates the authority for the district court to assign it to another state  even more concerning perhaps i think judge around that it's no more a line drawing problem than than any other disputed legal issue in which a word is called upon to adjudicate and just like the examples of manner that we were discussing the district court has tools including what the statute says and the parties arguments to enable it to figure out on what side of the line that particular argument falls so it doesn't strike me any more than the nature of the terminator what manner of execution is doesn't strike me as any more of a line drawn problem than that but with respect to this issue of what if the government were to go to a district court and say i think that this you know state law doesn't provide for the implementation of  argument for why it is putting in place the protocol that it is that it considers its protocol more humane than some other states that is not what that statute calls upon the judge to do so if that's the argument i think the judge would decline to entertain that if the argument is this law doesn't provide for implementation of the sentence full stop that's an argument that the judge could be called should be called upon to address and resolve but again all of these questions about the recalcitrant states that the reason i mention them is because they fall in line with a series of policy arguments of course the government has made it would be more efficient for the government to have a single protocol it would be a problem if the state were to resist a federal execution all of those are policy arguments that can be made to a different body the question here is getting back to your initial question judge roe what does the statute say what does it direct the states to do and how does a direct the federal execution questionably i think they they said of themselves part of that manner but we know that congress did not want to hand string the federal government in terms of personnel because of three thousand five hundred and ninety seven that gives the federal government looks ability so  style of gallows drop which unquestionably affected the experience of painting whether or not your neck breaks or you strangle i think everyone would agree is relevant to that experience and yet nothing in the the federal government may well find it convenient to ask the court to designate another state if it is impracticable to carry out a sentencing state's protocol we cannot do that under the plain language of the statute they are reading in the word manner into that alternative designation proceedings so they are saying what it means is that the law of the state did not provide for a manner of implementation a sentence of death we have that sort of flexibility to go and ask for an alternative state to be designated are our reading and i think this is the only one that works as a matter of text is that if the death penalty is on the books if you are allowed to carry out to implement a sentence of death for any crime in the state we referring to is when a state is trying to use its law to frustrate the government we're not talking i mean i suppose you could imagine a hypothetical where the state was trying to create statutes in a way to really frustrating the government but by and large what we're talking about is states making their own legitimate choices about the death penalty within their own territory they don't have to want to stymie the federal government to have incidental or cracked under their reading of the statute they're known for their