December 12, 2006
My take on Lopez
I am not one of these people who follows the individual justices of the Supreme Court closely, and I don't pretend to be able to predict how most of them would vote on particular matters. But I know that these folks disagree on most everything, and so an 8-1 opinion that arose out of a circuit split tells you something interesting is afoot.
In Lopez v. Gonzales, there's less there than meets the eye, however. The immigration statutes give the Attorney General discretion to cancel deportation of a noncitizen, but not if the noncitizen has been found to have convicted of a "felony punishable under the Controlled Substances Act." 18 USC 924(c)(2). What if the noncitizen is convicted of a state law crime that is a felony but which, had it been brought in federal court, would only have been a misdemeanor. Does the AG still have discretion to let the noncitizen stay?
Justice Souter held that to be a "felony punishable under the Controlled Substances Act," the crime had to be... a felony punishable under that act. He rejected the notion that he was reading the statute to say "punishable as a felony" under that act by noting, among other things, that "we instinctively understand 'felony punishable as such under the Act' or 'felony as deined by the Act." Further, he said that a reading that would capture crimes that would cover misdemeanors under the act "would be so much trickery." He goes on, but his 'instinctive reading' approach is quite interesting.
So why was there a dissent?
Justice Thomas, alone, broke down the statute into two "elements": that there must be a felony, and that it must be punishable under the CSA. Since Lopez had been convicted of a felony (under state law) and it was punishable (as a misdemeanor) under the CSA, the AG had no discretion. Or so he argued.
It's interesting to see how parsed this interpretation is. He's no doubt right that there has to be a felony and it has to be punishable under the CSA, but he ignores the linkage that the words create in a natural sense. He even argues that the majority reads the word "federal" into the statute, which seems quite odd since it refers to the CSA, a federal statute. I'm probably not being fair, but there's a reason he got no one to join his opinion.
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