although you get extra time to begin with and first person up it's going to be general color for the state of texas it please the court as before is wholly valid as the state panel correctly concluded there is no fourth amendment violation or federal preemption and on the facial vagueness in free speech claims we have offered dictionary definitions of materially limit and indorse which are reasonable and thus must be accepted nor any of the cross appeal claims successful i'll start with the ice detainer fourth amendment of preemption issue as the state panel correctly concluded there is no question that federal officials can reasonably detain for civil immigration violations in this record err by finding there is a different probable cause predicate for state officials for special sessions states like the federal government can detain for civil offenses and here in the collective knowledge doctrine when the federal government is making an express request to the state to detain for forty eight hours additionally when the federal government is telling us that they have probable cause to is removable local officials can legitimately rely upon that and the knowledge from the federal government imputed to the state turning from the ice detain or fourth amendment issue to the preemption issue this is not preempted as  state now concluded under thirteen fifty seven g ten b that's savings clause as arizona versus united states recognize allows states to cooperate and assist with federal immigration officials and we don't need a formal thirteen fifty seven g agreement to do so if localities themselves want to function as de facto federal immigration officers they can enter into that formal agreement with the federal government but gee tenby expressly says they don't need that formal agreement to cooperate with federal immigration officials when you say cooperate does not include self initiated action or only action in response to some sort of request it would be action the latter that is first prompted by a federal government request and we know that from the statutory language that it's cooperation with a federal immigration officials so section these three only is triggered when there's a predi request now that is different though than say the b one duty well i mean did you just just thinking of a simple analogy of a bunch of fire fighters are fighting a fire and i come up with a hose and start putting the hose on the far in a sense i'm cooperating with them but they they haven't asked me to help them so i'm just trying to draw that distinction in the construction that we have offered based on assisting or cooperating with the federal immigration officials we can see that language and be for your question that could be unilateral action there we're not talking about cooperation of these three we're talking about the v one immigration status inquiry or the b to information sure and again that's b three something to the also a provision that involved unilateral arrest power and that the state was trying to do based only on federal civil immigration offenses we don't have any of that here rather what this law is is the state of texas is regulating its own local officials so we do not have penalties that are being imposed on us and in addition to that arizona expressly up held a very similar choir and about requiring immigration status in court and so what congress was doing there as arizona signed was it was encouraging cooperation and encouraging states to share information and that situation which is exactly what we have here is wholly valid for the state to direct its localities and its use of state sovereign vegas issue the court's precedent based on longstanding supreme court precedent is a facial vagueness claim only can succeed if the law simply has no core or here plaintiffs have conceded from last term which echoed in quoting that longstanding supreme court opinion turning from the materially limited facial vagueness issue now to indorse and free speech because we have offer a reasonable construction term doors and that dictionary definition because it's reasonable must be accepted in their skills to indorse in this context means to sanction to ratified to confirm well i don't whatever they say that i mean it is a kind of the unusual word very very curious to use the word in doors and judge with what we have in it indoors in certain contexts could refer to political speech it could refer to speech but in this context first of all given that we have offered that reasonable dictionary doesn't and in the context of the law talking about uses of government red alongside adopted to force this is a reasonable construction of what the legislature was aiming for was about a complaint for declaratory judgment filed in austin by the attorney general and i think it's one of the defendants travis county sent a card quote publicly endorsed travis count policy and practice and then there's a quotation from a cart and it's attributed to the newspaper now is that you say that's an indorsement where she's talking she's giving her think she should be thrown out of a position for that egyptians under the reasonable construction we've given indoors would have to be a use of government power to sanction ratify a policy talking about would be a public statement or political speech the right that's correct for instance let's say an official were to say that they disagreed with the policies underlying has before that would not be sanctioning or ratifying a government policy that the locality had us in under the reasonable dictionary definition that we have offered that is a narrowing construction that must be accepted again we had mitt endorse in other contexts could cover various forms of political speech but when presented with a reasonable construction to save the statute every attempt must be made to do so and that's why we have offered that today that less prevalent the narrowing construction idea in first amendment cases eat even then the court has said especially in the context of an overbroad challenge that courts are not to go out of their way to pick the most capacious definition but rather if there's a reasonable construction offered you  then look at well under that reasonable construction are there then over a breath concerns there but given that this would be sanctioning or confirming or ratifying a government policy that would not sweep in any protected speech because we know garcia versus a bias that when a government official is speaking as a government officer different free speech god had applied to an elected officer as well i mean the guy said he's a public employee and i believe there i mean an elected official like a sheriff or or a you know county judge or something certainly have a more latitude to speak don't play well that would have led the team to speak as a candidate and as a private citizen of course government officials always have that right when they are acting as private citizens supposed judge eckart went to the state legislature to comment to endorse you know doing away with s p for would she be they're interviewed in the evening news and they might be asked questions wouldn't they be hesitant to how to speak up in a situation like this for fear that they might be run out of office for what they've said on the evening news prado because the construction that we have offered would only apply to a use of government power in official going giving a newspaper interview or a press conference where they would disagree with a policy judgment or rest before would not be sanctioning confirming a local policy to ignore the mandates of this before and that is that there's a clear line that can be drawn between the use of government power versus simply speaking as a private citizen well what about the argument that when the person at the top i mean i know this is your narrowing construction but in fact it may be too cute by half because when the person that the trop top of the electoral totem pole so as this is a god awful policy it's bad for immigrants it's bad for the state of texas that may not be sanctioning ratifying or confirming a policy but it does send a message to the people below doesn't it well it to be very clear though if this were a pre t that are you going to prove pretext in this in this i think the answer would be to look at the court's precedents even in section ninety three pattern or practice for protection points courts do draw the lines between when  something moving from we don't i certainly i mean to be to be i don't think we normally do that when we're balancing when we're looking at first amendment issues and particularly this is core political speech what if the court were to reject our reasonable construction and it would not be limited to use of government power then it would slip sweeping political speech but when the what we're offering is a dictionary definition that is limited to the use of government power that is actually confirming a policy that would be a valid construction another alternative is just to say that it's very difficult to this but disentangle and force from legitimate public speech and therefore we're just using the severability clause and it comes out of the statute that's right if if the term indorse were invalid the remedy would be as the state kind of recognized if i can turn very briefly to the couple of the cross appeal issues section b one the status inquiry provision arizona upheld a stricter law that law required immigration inquiries and even there the arizona law contemplated interactions between officers and potential detainees in the very same way that s b four does also crucially on that point if a stop is not troll long there is no fourth amendment violation there is no arrest so there cannot be any preemption under arizona and we're questioning is not a seizure that's boston regardless as before would only apply and the one would only apply there when the aliens already under a lawful detention so there's no threat of an ongoing stop being prolonged and then turning from b one the the provision to be to the information sharing provision that was what was upheld in arizona arizona also had a law that there actually required communication between the state the federal government and arizona crucially had its own state law penalties and the united states expressly raise that to the supreme court and the supreme court upheld that requirement so we know from arizona and from whiting that a state can have additional penalties beyond what federal law has and those are still valid the issue is and it comes back to is this something congress has encouraged in congress is if you have a policeman that stops somebody for a traffic violation and given him their speeding ticket or whether or discovers that the person might be in the country materially limit an officer from engaging in helping immigration enforcement now they can't unilaterally arrest the person beyond what they could otherwise do but merely asking a question is not a seizure there be no fourth amendment issue there would be no unilateral rest from that though he discovers the person in the country illegally don't you take him into jail and cause homeland security or did he let him go on his way he would the state official of a local official would not be able to unilaterally arrest and judge as i see my time's expired if i can answer the go ahead what would happen in that scenario is s p ford say you can't have local policies that block the offer officer from your questioning relaying that information to the federal government and that's exactly what arizona held but the determination of whether the alien was actually removable and whether the alien should be detained solely for federal immigration purposes that is left up to the federal government which is precisely and among other things it says driver's license oh there goes texas driver's license or texas driver's licenses so aren't they awarded to people who are not legally present in the united states texas driver's licenses are issued to recipients of deferred action and the state of texas position is that deferred action does not confer a lawful presence however we have to rely on the federal government's determination of that so the federal government tells us that the first action is lawful presence for purposes of driver's licenses we rely on that but otherwise you're saying the only way a person would have a t t l who was not legally present would be basically if they lied  mr stewart think your honor may please the court i'm scott stewart on behalf of the united states in arizona versus united states the supreme court recognized that state officials can will cooperate with federal efforts to enforce the immigration laws s b for his detain or provision and it's unfortunate assistance provision that's texas code of criminal procedure article two point two five one in texas government code seventy two point zero five three b three both involve the sort of lawful cooperation that the supreme court recognized i'm happy to the point i'd like to emphasize is that this is a facial challenge therefore to prevail on this claim the plaintiffs must show that these provisions are invalid in all of their applications they can't do that the reason the district court concluded that this facial challenge was able to succeed on the detainer provision in particular was that the tina provision requires local officers and i'm quoting from our way forty one ninety four to forty one ninety five it requires  local officials to effect seizures requested by i spoke prohibiting those officials from making an independent particularized assessment of whether probable cause exists to support that seizure and quote as we've explained that premise is wrong in arresting officer does not himself or herself need federal ice officer with knowledge of relevant facts and relevant law is making those determinations the government as i recall it that is to say the state of play some emphasis on this for my two forty seven  may not always or even often be the basis for seeking cooperation with the local authorities well what's the answer to that your answer the answer there your honor is that even if there are at the margins perhaps some cases where the eye to forty seven isn't you know always at work say that those cases where you know there's maybe a phone call or some light that the vast majority of the applications that are involved here are a situation where under ice policy somebody  be the three that says that the local authorities have to allow the ice officers admission to you know jails are holding cells or whatever federal immigration officer to enter and conduct enforcement activities at a jail to enforce federal immigration law i don't see a challenge to that unless it's swept in under the general preemption scheme i don't think the issues been been joined very much in the we have in the united states hasn't kind of addressed that and sort of a direct way sometimes that's that sort of cooperation is the sort of thing the d h s s contemplates that you know a state or a locality may permit from  from reading the headlines that california passed a law that says they can't do it if i'm not mistaken but that's as headlines yes your honor understood on that one mother other point that i just i thing that's needed if you're going to centrally have state officials acting as federal immigration officers you know like unilaterally acting making field arrests and on the fly kind of status determinations on their own without a predicate federal request here is as texas notes on page twenty nine of its opening brief these provisions are you know are triggered the ones we're focusing on are triggered by a predicate federal request and therefore fall in the form fall in the scope of permissible cooperation the kind of thing that there is a local sure people arrested on crime and they're there in a jail you take their vital statistics and it taking down information the local jailer realized that this person for the good of possibility this person might be here illegally is he under this law obligated to call homeland security or say look we got some people here in the jail they're getting out in bonn in a day or two we think there might be illegal aliens or does he have an obligation to make that call to bring it to the might have been a question but i do know that you know we know from arizona that there could be the state could require some kind of you know status determination check or some sort of check in with the federal government certain circumstances but we haven't sort of a ok much has been made as you pointed out about the fourth amendment what is the standing of cities to argue fourth amendment violations here think you know i'm not we haven't addressed you donna but my understanding is that you know there is a concern about city officials or cities with policies that could be swept within the ambit of senate bill for that could turn cause them harm the united states hasn't hasn't school joined all normally a fourth fourth amendment claim a right against illegals unconstitutional search and seizure is a personal claim and you're not supposed to raise it on  half of third of other parties even another person in a car you know so i just wondered how city is taking on the mantle of the fourth of how the city's how the city has a right under the fourth good afternoon mr glanton i will divide time and address separate arguments on preemption and detainers i will also provide argument on the first amendment and mr bill learned will address court i'd like to address two things quickly that were raised by solicitor general keller in his characterization of us before he mentioned that it's aimed at local government but in fact the definition of local entity under the statute includes individual employees anybody who receives a paycheck from the city a county or a community college district it's much broader than the governing body which is also part of the definition of local entity and second home so sort of general color talked a lot about policies but best before also reaches practices as as your honor pointed out and so the compulsion under threat of very serious financial sanctions for individual local employees is to enforce immigration law and the sink sions are greater for elected officials because they include removal from office and finally greatest for sheriffs and other jail officials or who's going to fire these individual employees who you say are being you know intimidated it isn't in the because the law only applies to the attorney general filing a civil action and i doubt that he's going to reach down to the jail or on c block in the harris county jail in order to fire that person with the firing provision your honor his removal from office for elected say the individual employees it's those fines one thousand to one thousand five hundred per the first offense and then at twenty five thousand twenty five thousand five hundred for each subsequent offense any individual local employee whether it's a city attorney with a can a district court judge in a courthouse who as recently as as a few months ago in san antonio for example discussed publicly issues of ice making apprehensions in the courthouse and its effect on women seeking orders of protection for domestic violence you can reach the community college professor who wants to conduct a debate in a classroom regarding immigration enforcement individuals are going to possibly region university professor at community college professor your honor is a local entity under as before because it covers cities counties and special districts there are approximately fifty special districts in texas that are the community colleges and so it reaches community college employees as well and so with those clarifications i'd like to begin with preemption this before is and forstmann obligations conflict with a federal structure that already controls how and when local actors participate in immigration enforcement we have an existing federal structure here that's quite comprehensive in eight u s c thirteen fifty seven federal law as the supreme court said in arizona specifies limited circumstances in which state officers may perform an immigration officers functions those occur sometimes under statute there are a handful of statutes that authorize local officers to go out and make an arrest for example under a mass influx or with a felony illegal reentry but largely the structure contemplates immigration enforcement at the local level through what's known as a local written agreement under thirteen fifty seven g it's written it specifies the officers it provides training and of course always federal control and oversight your your are your view is good fats exclusion it's controlling both from the field preemption perspective your honor but also with respect to conflict preemption s before through its very heavy penalties compounds local employees to enforce immigration law that is seven fifty two point zero five three a one and a two there is no specification to pass you know within the bounds of a thirteen fifty seven g agreement there's not even a specification for local up for federal oversight federal training or federal control it simply says  that an individual employee must have a practice of enforcing immigration law and it's not more defined than that and so as to judge problems question whether the individual police officer will feel compelled to make an arrest of an individual because that's enforcing federal immigration law the pressure will be on your honor on that individual police officer because if somebody else reports that he has a practice of not doing it he's the kind of local entity who can be fined under s b for a brief before yes before those actions could could have been taken even though they wouldn't be coerced or compelled by state law right they could have been taken officer who makes a makes a traffic stop and then has a suspicion of possibly that that that someone is not a lawful way in the country before ask before you're saying that there would have been a problem with that officer preempted for a very special reason because of the penalties that are associated with it and in conflict preemption because there is already a federal statute that talks about information exchang wasn't that kind of provision over rolled in arizona case then section to be in arizona the u s is different you know we assert from the inquiry provision under as before so going to the recession which is a function of the federal officer asking about in recent status well excuse me but i quote from their own a decision which says section two v requires state officers to make a quote reasonable attempt to determine the immigration status close quote of any person they stop detain or restaurant some other legitimate basis for his mobile suspicion exists well how are you going to do that if you're not go contacting the department of homeland security and exchanging information it's less than crystal clear whether that means taking somebody his driver's license or other proffered i d and going back to the police car and making that to the federal government or you know that that is the way that we've understood arizona of the u s with respect to increases that the court really read down to information exchange and that as before opens up a much broader category of asking and asking follow up questions and then doing unspecified activities in response if i could address this before you go to just how would you respond you say that it's preempt or there is a conflict but we just heard from mr stewart from department of justice that says it's not and they seem to want this cooperation from the locals so how do you respond to the the government saying it's not and we want their help and cooperation the preemption is created by congress your honor and by the statute itself and both texas and the united states acknowledge all of the structure around it u s c thirteen fifty seven james but say that there's a big exception and that's ten b but for my friends on this side of the room the exceptions swallows the entire bill g ten b cannot mean that local individual employees can do we have reactivity that is required to be under a written agreement with training and so if they can't make they can't make the ultimate decision of deport ability and they can't arrest right yes your honor well i mean that's but those are the critical things that tend be attending agreement deputized as local officers to perform and again the arizona cases very clear that you can have routine cooperation between local entities and the government and in arizona they mandate be inquiries and they didn't just guidance your honor is very instructive here because it talks about cooperative activities that are not immigration enforcement activities as described in thirteen fifty seven g and of course this provision we're talking about g ten b starts with the word otherwise and that's an important word because it's talking about additional things and the d h has guidance talks about operational assistance such as setting up a perimeter participating on a task force providing facilities and so yes there is a contemplation of cooperation your honor certainly in g ten b but it is not as broad or as expansive to poem it this very wide truck of s b fours and forstmann provisions to drive through i mean you can't fire people as you're just a thought your bottom line that as before cannot compel enforcement of federal immigration law outside of an agreement under thirteen fifty seven  and precisely what is a but makes it broader than fear its own a case exactly what is a local and to to you however describe going to be doing but that makes it different from the arizona case just before structure is helpful seven fifty two point zero five three has different provisions underneath it some things that are a and some things that are big and inquiries and information exchange are addressed specifically as examples but some fifty some fifty two zero five three a one and to speak broadly about requiring in force meant of immigration law beyond what your honor has pointed out as inquiries and information exchange and and this wide open and force meant compulsion is preempted finally your honor with respect to preemption there is even if many of these activities are permitted drama for example making arrests alongside which we which we do not say are permissible there is an insertion of best before of obligations and penalties into the relationship between local actors and federal actors local police saw officers on the ground on an every day basis are communicating and it's the federal government that talks with local officers and decides when and how and where and under what circumstances even g ten b cooperation o as before inserts itself into this relationship in a way that is not permissible and is conflict preempted and i would point the court to cases like bachmann and loft in which even though they're in a different context talk about how disruptive the effect can be of a state inserting itself into an existing relationship in which there is communication and feedback and in which the federal agency decides what is sufficient and what is not sufficient i'd like to spend my remaining minute you're on are talking about one specific piece of detainers let me we'll give you a bit of extra time if you need it but but i wan you are not any more arguing but most of this law is field preemptive is that correct oh no your honor it is briefed in the briefs we do argue that most of the law is field profanities so you're resting on your br that regard yes your honor ok and my apologies for giving any other any other sense finally with respect to one small piece of detainers your honor raised earlier this provision that says that a jailer does not have to comply with the detain or mandate if he assesses documents and determines that the person has lawful status in the united states and then it mentions as an example of a document that might be offered a texas driver's license this is a safety valve in the detainer provision because it's intended to make sure that certain people are released and perhaps should be held but it is absolutely and completely conflict preempted it authorizes local employees to make immigration determinations and then further authorizes and requires state judges to make that same determination when the issue is raised as a defense to prosecution and that's in as before at thirty nine point zero seven what prosecution jailers can be prosecuted criminally for not complying with the detain or mandate provision in addition to the  jailer looks good so and so's driver's license issued from texas and he deter it he believes is so he he calls i see doesn't call ice and then this person is re and you're saying again that state attorney general was going to swoop down and find this jailer or put him in jail with the record reflects your honor that the governor has talked about bringing the hammer down on county officials that do not follow detain or mandate so accepting that the facts around your honour's question as being quite likely one can raise as a defense and thus as before requires a state court judge to mak immigration determination as part of the defense to the prosecution of not following a detainer and the driver's license and your honor so question is absolutely perfect somebody cannot have a lawful immigration status and still hold a valid texas driver's license ice knows that if somebody is removed and enters illegally they could still have a valid driver's license or order removed and absconds this is a person who ice wants they've been caught up brought to jail on some other issues ice wants that person and wants a person to be detained and as before says no this is the sort of thing that you should rely on to make an immigration determine and then release that person an immigration determination or release a person and so for that reason your honor it is it jail and say hold this person we think they're that he's here illegally without documentation that the jailer does not have to or is not required to  follow that detain or but with this law they would be yes you're wrong that's exactly right as before can carry same mandatory detain or compliance provision and and why would such a requirement inappropriate if you have a federal official saying we have probable cause to believe this person is here illegally please hold him for us until we can take him over whatever happens this is the perfect moment your honor for me to s under threat of very severe sanctions then there is standing in the situation to assert a fourth amendment where it would be the oath not to violate the fourth amendment as to individual persons is that yes  declarations that's wrong the declarations specifically talk about policies that prohibit immigration of foresman we can see that the word prohibit is not phased what we're talking about or what can they do short of prohibitions materially limits and there is an enormous imprecision in that term and it's combined with the harshest possible penalties on local law enforcement officers and in addition there's no qualified immunity in that or good faith exception in that part of the statute dealing with a one a two in the three the non tenure portions which as i'm talking about now and so this court has been vigilant about not letting local police be charged with you know in in one thousand nine hundred three actions without qualified immunity without good faith exceptions if you have local officials now that are happy to cooperate with ice and one of our plaintiffs sheriff sherburne maverick county spent more than twenty five years with border patrol he is not against enforcing the immigration laws but he needs guidance on what the term materially limit means the state has come in and offered their own construction a few points about that your honor notably it took them multiple stages of this litigation multiple briefs to decide on what they actually meant by materially limit first they said material limit is when it has an effect on immigration then they move to a purposed has when it's motivated by anti gay immigration policies now they have sort of a general policy that says if it's not immigration specific i think that right there tells you that there is no common understanding of material legal limit in the state is suggested while materially limited is used often in other contexts in the law but as the supreme court recently said in johnson of fading this challenge is context pacific it may be that in other parts of the law it's used and based on the context it's clear here it is not clear and in those other parts of the statue the criminal code or the civil code sorry the civil code that texas has cited there were no harsh penalties here you have local officials who have to make on the ground decisions about what they can do tend they if there's no court of the law then it's vague you don't have to have in every application this court has done sorry your honor in johnson made absolutely clear that you don't have to have a law that every single application to strike it down facially that was johnson this court reaffirmed that in westbrook's in when these medical center this court struck down a law on facial grounds korean force meant vagueness grounds with there's no cork in the the persecuted jailer he has to exhibit a pattern a practice that materially limits and of course men of immigration law such as never inquiring into the immigration status of a person never for sharing information with the federal government never cooperating it seems to me when i'm materially limiting to the crowd in your practice you we all know it when we see it and is in fact confirmed by the fact that a number of your sheriffs that said well we know we're in violation of this right now we're going to let me be is as absolutely clear as possible on that both with respect to what our sheriffs have said in the declarations and to those hypotheticals you gave me those were off paddock oracle prohibitions we can see that those fall within the statute and remember the statute says prohibit any materially limit so materially limit has to be something  but what about if we say immigration is going to be the lowest priority for us and we're going to always prioritize local crimes ahead of that or we're only going to allow one of our members one of our officers to enforce immigration law patel well i think both of those are personally think both of those are materially limiting because frankly the the burden placed on the authorities visa via the immigration laws is pretty darn small it amounts to making phone calls which either you or miss prowess started out your argument by saying they do all the time and they have been doing all the time but your honor we have declarations from all of these police chiefs and sheriffs in all the both small cities in major cities saying it's not a small but it's not just phone calls they are asked by all the time come out and join us in this raid and so your honor suggested that those examples fall within the two really limit the state has said the exact opposite they have said anything that's based on resource constraints doesn't fall within truly limits so now we have our sheriffs on the ground making real decisions saying can i limit my officers from going on this raid are you familiar with the policy in texas where you can inquire of the state attorney general and get an opinion about the status of the law and those are those are basically controlling but your honor i don't think that the state can rewrite this statute so i think and and i don't know that it's practical for our sheriffs to call every single day when they want to limit somebody i think that the we're talking about enormous penalties that could personally bankrupt these police and sheriffs so if i'm sitting there is a city attorney and i say what do i do how my employees what can i do can i say to them we don't participate in raids at shelters we don't participate when it's a raid on a home without harm middles or immigration is a lower priority than solving local crime well ok there's the there's the possibility of as applied challenges there's the possibility of individual declaratory actions see there's the possibility of asking the state attorney general for controlling opinion your honor i think  applied i think the supreme court and frankly in this court in the past has never so that an individual especially a local law enforcement officer has to bet the farm and say i'm going to do this and i'm going to take my chances and force an action when the penalties are so severe or every time i want to do something on the ground i'm going to try and get the attorney general on the phone to get an opinion that the ways it comes up are so numerous and there's constantly decision if i'm a sheriff i don't know what i can do if i'm a city attorney and i'm not frankly not aware of a law like this where the penalties are so harsh on a local law enforcement a twenty five thousand dollars personally and the state itself cannot come up with a definition and you yourself your honor suggested that the definition the state has come up about you don't have to do things if there is resource constraints it is differing with this is a right there you know that it's not as easy as the state suggest and the state remember i materially limited struck out they still have prohibited so then the you know the time for a c c violations about what's the material misrepresentation in those cases go to juries i mean i mean it just seems to me say the whole idea of materially limits is unconstitutional i think you're on your honor a few things about that in johnson the same argument was made they said well look at the terms at issue in johnson that was the that was c a c c a right that was the act residual clause and that was after the supreme court itself had tested the law for well over twenty years right and just given up and you're saying we the court should give up the legislation before even one prosecution has been brought your honor what i'm saying is well first of all women's medical center did do it pre enforcement of times that was a decision of this court so it's absolutely clear this court does it and we're talking about local law enforcement getting hit with bankrupting fines i think to say to them go take your chances i don't think that's the way what the supreme court is is suggesting on that and remember in johnson the same argument was made they came to the supreme court and said look the term is at issue in the aca residual clause are used in other statutes so they must be clear and they want struck down there what the supreme court said very clearly is context is everything and in this case it is impossible to figure out what a local sheriff can do we have given numerous examples in the state has only come back and said well that's a bonafide resource constraint then you don't have to do it your honor disagrees with that interpretation which just shows that on my own which which just shows that materially limited a policy or practice so it's the prohibited immaturely limit your honor if i if i could just turn to preemption for for a minute let me let me put it this way you can know what car you are arguing feel the con prohibit or materially limited immigration enforcement with the clause at the with the assistance or cooperation of a federal immigration officer and let me address judge smith's question as i think that gets to the heart of it judge smith asked the other side if there it to be unilateral does it have to come at a request and they said a request let me just say that that can't be the lowing even assuming as before could be read not to allow unilateral and it has to come at a request a request is necessary but not sufficient it can't possibly be sufficient and so here take for example the ice calls our sheriff and says go out to east texas and try and find people who were here illegally we think there's a lot of people in this particular area east texas go out or go to this soccer field we think a lot of people play soccer always stay nights are here illegally the local police officer would go out there and then they would have to use their judgment without training without any up understanding of immigration law i don't see that hypothetical is coming within the scope of the forstmann assistance provision at all right well your honor the reason it does and so this is why i want to be as absolute clear as possible  the state has offered only one mind to understand that provision if you comes at a request that it's ok so anything ice now requests is ok according to texas that's how they are interpreted in the provision and i am suggesting that that can't possibly be because then you would have local officers making determinations about whether someone's removal bill at the soccer field they would be making arrests they would be doing interrogation the mere fact th ice asks you can't mean you can do everything that congress want to do after training and supervision under agreement so what has to have some amount of federal control and i think the truth is that texas doesn't want to go there they want to destroy this bright line for you and say as long as ice clauson request that's sufficient but once you know that there has to be some federal control how much federal control is a problem judge i think it was as reasonable or necessary so including providing an assistance in that say with federal control i just think your hypothetical is totally off what your honor but all i'm reacting to texas trying to give you an interpretation of the provision and they are simply drawing the line that if there is a request and that's how they answer judge smith so it has to be that federal government's going to be in control now here's the problem exactly what that means how much control is a tricky question judge smith asked the follow question which is also critical but prior to that wasn't there a question about how much control what was preempted and what wasn't and that's exactly the right question because under that proviso ten be it thirteen fifty seven there was ambiguity justice kennedy mary's only specifically said it was an ambiguous provision the reason it didn't matter then is because congress imposed no penalties so you're a sheriff sitting there and ice causing and says hey can you go to the soccer field and do this if you're not sure making the call that would be great but what i'm suggesting in response to judge smith's question is then how much control is a difficult question for the sheriff or what if they're there but not supervising all those kinds of things prior to that judge smith it didn't matter because congress didn't impose any penalties you got that cost of can you help us under this savings proviso of thirteen fifty seven g b ten you declined if you thought you were anywhere near the line of preemptive activity i mean i really think  related to what the only person the op held the basis for saying that this the ten b sense was ambiguous but that's what justice kennedy specifically said when he struck down you can't to unilaterally arrest and what exactly and what he said is that goes far beyond the line where the line is ambiguous it never mattered before because the sheriff would simply decline to cooperate with ice if he thought he was getting near preempted activity if they were asking him to do something discretion and that's why they didn't impose penalties this is a sea change now we're every ambiguous decision everything that's unclear before now becomes fraught because the individual law enforcement agent is going to be hit with these enormous enormous penalties or removed from office and so we do not know how to advise them what materially limits they can place on it when they have to cooperate or don't cooperate now if texas wants to stand up here on reply and say sorry your honor thank you ok thank you color it's helpful to step back and i'd like to make two overarching points to begin with first of all we're here at a facial pre enforcement challenge and so salerno does apply and you heard various hypotheticals that are applications some of which would not even be covered by asking for that cannot possibly do mass before as official matter and second of all the scope of the arguments of the plaintiffs are making on the fourth amendment and preemption is sweeping it would bar even the federal government from making detention arrests for immigration and even on the preemption side it would prohibit even the local ad hoc voluntary compliance that they're saying is existed for some time up to here and so the sea change would be adopting the claims position which would also require you to contradict what the state panel ruled on and create various circuit splits in doing so the facial vagueness standard and and go to prohibit but not all of them for instance travis county had a policy that was selective compliance with ice detainers they would only comply with ice to tender requests that were for certain predicate crimes that is not a categorical prohibition that is a material limit upon immigration for amendment law in determining a facial challenge to a statute if it be readily susceptible to a narrowing construction that would make it constitutional it will be upheld and so the skilling ruled in virginia versus american booksellers rule of its dopping a narrow construction applies also in the first amendment context and so the reasonable construction that we have offered to limit indoor so it's not sweeping in all sorts of private citizens speech makes that provision valid  that have failing and shall we respond to a phone call that sort of thing i'd be happy to and i'd like to highlight page thirty nine of our brief because you don't need to ask the texas attorney general for an opinion on this we have already taken the position this litigation there to keep parameters the plaintiffs are ignoring here first of all a material limits it is one that requires a logical connection between the policy and immigration enforcement and this is where we admit that if something is an actual bona fide resource constrained if it is an immigration neutral policy about overtime or trolling or anything like that that would not qualify as a material limit it would not have the substantial of connections is necessary and the qualifying term mat and second also to have a material limits to place a limit on a power you have to already possess that power so a policy that says we're not going to unilaterally arrest for federal immigration crimes that is perfectly fine because that power already preempted so there's no limit being placed upon regardless even though we have offered those two reasonable constructions of the statute we're here on a facial pre enforcement posture and so even if there would be some hypothetical out there that they could raise and has applied challenge for down the road when we're talking about the context of a facial challenge the issue is is there no core here it is clear that this would block policies that not only categorically prohibit but also material limit were pede immigration enforcement at base this is a dispute with the localities wanting to override the state legislature's sovereign prerogative how to exercise its own state police power this is not a regulation  acknowledged three different examples where you could have enforcement cooperation without a formal thirteen fifty seven g agreement joint task force operational support executing a warrant and access to detainees held in state facilities which would implicate before here and all of instance that if the sheriff of travis county says something about we're not going to participate in joint task forces then that materially limits you know or any joint task force that occurs on a saturday or sunday you know when presumably people are going to be relaxing and have their their hair down but that would be materially limiting and that's not even a problem yes that would be covered by asking for the travis county could not have a policy that says we're not going to help federal immigration officials when they've asked for that joint task i mean at the minimum at the minimum the things that the supreme court described in will be many other examples immigration status inquiries information sharing and indeed ice detain a request i mean isn't that correct also that the attorney general's opinion writing power can add to this explication of the statute absolutely and indeed the reasonable constructions we have given here today give ample guidance but if there's any possible application of the margins as applied challenges can be brought in also even on the ice the ten or component as before says the state will defend and