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Constitutional Law

: Ninomania

By David M. Wagner

Here's the passage from the U.S. v. Ressam oral argument that I was referring to:

JUSTICE SCALIA: General, could Congress pass a law that said if you wear a wristwatch during the commission of any crime, you get another 10 years?

GENERAL MUKASEY: A statute like that would be entirely unreasonable. It was not entirely unreasonable for Congress to have said if you carry an explosive during the commission of a felony, you've added something enormously volatile.

JUSTICE SCALIA: Surely it depends on what the felony is. If the felony is the filing of a dishonest tax return and you have a can of gasoline with you when you mail the letter, it seems to me quite as absurd as saying wearing a wristwatch in the course of a felony. That's what troubles me about this. I'm tempted to -- I think everybody is tempted to distort the "during" to mean something else, simply because the consequences of performing a completely lawful act wearing a wristwatch, carrying explosives -- given the broad definition of explosives, I guess it would include having -- having some cartridges, explosive cartridges?

GENERAL MUKASEY: It would. But the temptation --

JUSTICE SCALIA: That's perfectly lawful, and you get another 10 years for it just because you're mailing a letter to the IRS at the same time.

GENERAL MUKASEY: It is perfectly lawful. Congress was aware that Title 18, not to mention all the other titles, are chockablock with felonies. There are thousands of them out there. But nonetheless, it wanted to make sure that the mainstream that it was concerned with, which is nicely illustrated by the facts of this case, were taken care of; and so it passed a very broad statute. We concede that it was a very broad statute. "Any felony" couldn't be broader. But that was Congress's choice. And if
Congress chooses to amend the statute, respectfully, it ought to be Congress that amends it.

So, the AG has made two points:

(1) If you mail a false income tax return while you have can of gasoline in your car (or maybe just enough gas in your tank to get to the mailbox?), you can get an extra ten years tacked onto your sentence for that.

(2) Congress has made pretty much everyone a federal felon, and it did so in order for U.S. Attorneys to have the "tools" they "need" to go after the ones that in the "mainstream" we're "concerned with."

Full post as published by Ninomania on March 28, 2008 (boomark / email).