[Jonathan Adler, December 5, 2006 at 11:55am] Trackbacks
Lopez v. Gonzales:

Today the Supreme Court held, 8-1, in Lopez v. Gonzales that conduct made a felony under state law is not a “felony punishable under the Controlled Substances Act” that could trigger deportation under the Immigration and Naturalization Act if it is not punishable as a felony under the CSA. Justice Souter wrote the majority opinion. Justice Thomas dissented "[b]ecause a plain reading of the statute would avoid the ambiguities and anomalies created by today’s majority opinion." SCOTUSBlog has more here.

M (mail):
As pointed out by a commentor on SCOTUSBlog, Lopez will still be subject to removal but now has some types of relief open to him that he otherwise would not. That's apparently the main result of the case, at least from a quick look. Otherwise it would be even harder to fit with the court's earlier ruling that a crime could be an "aggrevated felony" even when it was not, in fact, a felony, the holding in an egrigous case relating to the statutory 'rape' of a 16 year old girl by her barely 18 year old boyfriend.
12.5.2006 1:35pm
zooba:
Does anyone know why the companion case, Toledo-Florez, got dismissed as improvidently granted?
12.5.2006 3:51pm
Roger:
The government had argued the case was moot. Toledo-Flores has served his sentence and been removed from the United States. He did not challenge his removal. He is under a one-year term of supervised release, but that supervision is inoperative since he's out of the country. And in any event, even if his sentence was retroactively reduced, his supervised release would be unaffected.
12.5.2006 4:56pm
Kovarsky (mail):
I normally think Thomas writes very strong statutory interpretation opinions, but this one is poor. Basically, the disagreement is about the meaning of the phrase "any felony punishable under the CSA."

The majority says the phrase refers to crimes that the CSA categorizes as felonies. Thomas says the phrase refers to all felonies (state or federal) that the CSA punishes at all, whether or not they are punished in the CSA as misdemeanors or felonies.

Thomas has a bunch of throwaway arguments. The word "any" modifying the word "felony" should always be interpreted broadly. Uh, sure, with respect to its referent - but you still have to figure out what the referent is, i.e. the question above. Using "any" (the modifier) to figure out the referent (the correct interpretation of "felony punishable under the CSA") is a textbook example of putting the cart before the horse.

I think he scores his best points on the majority with the argument about Section 924(c)(1)(A) containing the language "for which hte person may be prosecuted in a court of the United States." (c)(2) doesn't have that, so I guess maybe he's got a Russello point about the absence of qualifying language in a similar context. But then again, (c)(2) expressly incorporates the CSA, which self-defines as a federal question, so I'm not sure why (c)(2) would need the jurisdictional language in (c)(1) (which applies to drug trafficking crimes generally, a subset of which are state offenses).

His structural arguments are interesting, but the reading of the statutory language, "felonies punishable under the CSA" seems pretty clear, unless you can mount overwhelming structural evidence showing that state felonies punished by the CSA only as misdemeanors were contemplated by the statute.

A more cynical reader might point out some of the inconsistencies that reveal themselves when you compare the "of course possession [does/does not] equal trafficking" in this context with that issue in others (ahem, commerce clause). But only a cynical reader might do that.
12.5.2006 6:00pm
M. E. (mail):
Kovarsky, I don't quite see your point in the last paragraph...can you (or someone else) elaborate on that?
12.6.2006 12:34am