Torres, the Canons, and Holistic Interpretation

The Supreme Court will also be hearing Torres v. Lynch on Tuesday.  Torres asks a different statutory question.  In that case, the question is whether a mandatory immigration penalty applies, when the mandatory penalty must be based on an "offense described in” 18 U.S.C. § 844(i)," which is the federal crime of committing or attempting arson, when that statute necessarily requires (for federalism purposes) that the crime involves property "used in interstate commerce," when a person is convicted of the state-law equivalent, and that state-law equivalent obviously does not have that same "interstate commerce" requirement (we lawyers call this a "jurisdictional hook").

Here, the canons come out again.  The big canon here is the rule that "when the legislature uses certain language in one-part of the statute and different language in another, the court assumes different meanings were intended."  Like all canons, it is not absolute because it is not actually true; the Supreme Court has itself recognized that “Congress sometimes uses slightly different language to convey the same message,” so that it "must be careful not to place too much emphasis" on the canon.   Here, the list of mandatory penalties includes both the phrases "described in" and "defined in," and, the government argues, we can't limit the meaning of "described in" to a hard definition or the two phrases would be given the same meaning.

Against that canon we have the "rule of lenity," which, as I noted in my Lockhart analysis, is not really a "canon" in the sense used in this post (both parties in Torres unfortunately call it that, confusing my pet issue).* Under the rule of lenity, we should read the rule leniently, so that the ambiguity helps Torres.  

Although it appears most people here are predicting a 9-0 reversal in favor of Torres, I think the government has the better of the arguments here.  Again, the result is not because of a canon, but because this is the rule that makes the best sense of the statute.  

The government's canon does not make sense because there's no reason to treat the "defined in" violations any differently than the "described in" violations.  The "defined in" crimes relate to illicit trafficking in drugs, firearms, and certain other weapons.  The government's better argument-which I will get to in a minute-is why would Congress care about the interstate aspect of arson when deciding whether someone is suitable for entry into the US?  But  once you accept that, why would they care about it for guns or weapons, either?**  After all, the statute also includes other trafficking statutes, and uses the "described in" language.  So this distinction between "defined in" and "described in" seems haphazard, not intentional.

Nor do I think the rule of lenity applies decisively, either.  For the most part, the law doesn't change what is criminal versus what is not, it merely exacerbates the penalty for committing an act (attempted or actual arson) that we all know is criminal already.  I suppose it tells certain people not to come to the country who might otherwise come, such as Torres himself; but I think in today's day and age the better way to deal with the "crime" of unlawful presence is through prosecutorial discretion.  Indeed, while Torres is being deported, he's not being criminally charged with violating the immigration laws.  Torres also argues that the rule of lenity also applies to immigration statutes broadly, but I think the rule is weak in that situation, a mere tiebreaker.

Instead, what makes sense under the statute?  Congress does not care about the interstate nature of crime; indeed, Congress included language making clear that the penalty would apply "whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years."  What Congress cares about is that dangerous or "bad" people foreigners don't come into our country .  

Torres has two responses.  The first is that federal crimes indicate more seriousness than state law crimes.  From a practical standpoint, this is kind of true; the feds don't tend to waste their time on low-level stuff.  But it seems unlikely that Congress made such a designation out of a reflection of differing standards of prosecutorial discretion.  A lot of state crimes are very serious.  Indeed, it seems like there would be an easier way to limit the penalty to only serious crimes, i.e., by requiring a particular sentence.  Indeed, that's what Congress did for other crimes.

The second is that most of the serious state crimes will end up being covered under the statute anyway.  And this is the best argument Torres has.  If the statutory scheme makes sense in requiring jurisdictional hooks, then we should follow Congress's lead.  If not, we should ignore the hooks.  So does it?  The best way is to look at how the statute would divide:

Here are the crimes which would require a jurisdictional hook, generally:  (B) drug trafficking; (C) arms trafficking; (D) money laundering, (E) general explosives and firearms offenses (including arson, with a jurisdictional hook), but mostly trafficking violations of some sort, or other crimes involving federal property, airports, etc., in which the jurisdictional hook appears to be a substantive element) (H) the ransoming part of kidnapping (but not the "kidnapping" part); (I) child pornography; (J) racketeering or gambling if a felony; (K) slave or prostitution trafficking; (L) treason or espionage; (M) tax fraud; (N) alien smuggling; (O) illegal immigration; (P) counterfeiting a passport (sometimes); 

Here are the ones that would not:  (A) murder, rape, or sexual abuse of a minor; (F) a crime of violence (the meaning of violence is provided under federal law, but there's no jurisdictional hook) for which the term of imprisonment was at least one year, (G) a theft or burglary offense  for which the term of imprisonment was at least one year, (K) pimping (even though it ain't easy); (M) fraud or deceit involving over $10,000; (Q) failure to appear for serving a 5-year jail sentence, (R) bribery, conterfeiting, forgery, or trafficking in stolen vehicles (1-year min. sentence); (S) obstruction of justice (again, one year min.); (T) failure to appear to defend against a criminal charge that could lead to a 2+ year sentence, or (U) attempt/conspiracy of any of the crimes on the above list.

Does a jurisdictional hook matter?  To be honest, before I put this list up, I was pretty sure the government had the better argument.  (I now have to edit the already-written conclusion now, don't I?)  But now, while I think it is close, I think Torres should win.  The crimes that apply universally regardless of this case are all generally-applicable crimes.  But the crimes on the top are mostly crimes that, when they occur, will always violate federal law in the first place, including laws which by their nature have an "interstate commerce" hook (at least if one assumes, as many do in American law, that all commerce is interstate).  The only exceptions are child pornography (an area where federal prosecutions make up the vast majority of prosecutions in any event), the tax fraud statute, and the arson provision.  The tax fraud provision is the best evidence the government has at a lack of distinguishing between "federal crimes," and "any crimes," but it still involves a fraud on the *federal* government, which may be treated as a bigger problem to the federal government than fraud on a *different* government.  Then there's the arson statute.  If the government is right, then arson is included only as a subset of what is otherwise a series of crimes in which the jurisdictional "hook" is actually a significant substantive element of the crime, when all other "common" crimes are treated without reference to a federal statute. To top it off, most of those "common" crimes require a one-year sentence.  Arson seems to be treated quite differently under the government's view, than any other crime.  It makes no sense.  

And for that reason, I think, Torres should prevail.  I do think it is a close question, though.  The list lacks a fully-coherent explanation as to what Congress intended.  But whether Torres should win or not should not turn on the differences between "defined in" and "described in."  The canons distract from the real arguments.

The government also argues that legislative history supports them, focusing on drug trafficking.  The main argument is that the legislative history indicates that the statute be read to support the result of a particular case.  But a reading of the underlying case they rely on shows that the "interstate commerce" issue was not before the immigration court in that case, either because it was not a necessary element or because "interstate commerce" should be presumed as an inherent part of "drug trafficking," i.e., "drug commerce."  The only issue in the underlying case was whether a state law conviction that did meet all the elements was included.  So, I think, the government's legislative history argument is weak even if it were put before a Court that valued such history. 

Torres, incidentally, has a wonderful personal story.  He's been here, lawfully, since he was nine years old.  His attempted arson conviction led to a one day jail sentence.  Since then, he's been long employed as a carpenter and electrician, has stayed out of trouble, owns his own home in the U.S., and is taking college classes in civil engineering.  He's engaged as well, to a woman who lives in the U.S., unclear if she is a citizen or not from the briefs.  By any sense of what the law should be, he should be allowed to stay.  The statute is bad even under Torres's view, and Congress should amend it.  But the statute is not so bad as to cover Torres himself.

*There's a third "canon" (again, not a canon in terms of describing how to interpret language) at play here, which is the deference we give to agencies interpreting their own statutes.  This is known as Chevron deference.  It's application is dubious here, although for a different reason then argued by the parties (who debate whether it can apply when a statute has criminal applications as well).  Instead, based on the King v. Burwell case, deference is only appropriate when intended, and while I don't want to make too much of this rule (it is hotly contested between the Justices), it's missing the point.  If "described in" means "kinda-sorta-like," then maybe  there'd be ambiguity, but Torres loses in any event.  On the other hand, if "described in" means "meets the  requirements of," Torres wins in any event.  This is a "Chevron Step 1" question off the bat.  Congress did not delegate the question of whether the list of penalties was ambiguous in the first place.  Since the Court is not going to want to revisit this dispute here, Chevron shouldn't come into play. 

** I suspect I'm being uncharitable here.  It's at least possible that either the two "defined in" statutes did not have these jurisdictional hooks (or at least were allowed to presume them, prior to certain federalism decisions starting in the 1990s).  If so, then what may have happened is that Congress added the jurisdictional hooks in the criminal statutes, but forgot to amend the immigration statute language from "defined in" to "described in."  If you know whether this is right or wrong, feel free to leave a comment.  But, it is unclear whether that "hard" legislative history would be relevant to a canonical textualist in any event.