Tuesday, December 05, 2006

The Law Is For Ass




It is damned hard to be a Supreme Court justice. Everyone likes to categorize them, everyone thinks he "knows" what the judges are doing, and what they think. Horsehockey. They're a complicated bunch.

In a near-unanimous decision today, the court came down 8-1 that an immigrant's conviction for a state drug offense was not an "aggravated felony' as that term was defined by the Immigration and Nationality Act. The mojority included Justices Stevens, Breyer, and Ginsburg, the "left' of the Court. It also included Justices Scalia and Alito, and the Chief -- you know, the "right" of the Court. Souter wrote the majority opinion.

They all claimed they were just applying the plain language and common sense.

Justice Thomas was the lone dissenter. He wrote that he was just applying the plain language.


Both sides are right.


Damn it's tough.


You can find the opinions here.

4 Comments:

Anonymous ADA Buffoon, J. said...

Stepping back from all the interpretations of fed and state language (which is how it must be decided, I understand that) for a moment, the majority seems to be right.

Here in New York (as in most states), you've got a simple possession drug charge which is a misdemeanor, and aggravated felony drug possession charges. The aggravating factors are things like "over 1/2 ounce" or "possession with the intent to sell."

The reasoning behind this is pretty obvious: you want to come down harder on the sellers than the users. Presumably, users have a problem, but sellers seek to exploit others' problems for profit.

The immigration language seems to want to target sellers, not users.

Tuesday, December 05, 2006 1:31:00 pm  
Anonymous deeter, who's not sweeter said...

I agree with Judge Buf, but would note the response of Thomas -- which could also be the response of Breyer, or Stevens, or another; it's not along obvious predispositions:

The immigration language seems to want to target sellers, not users.

It seems to want that, but the formula that the language of the statute uses seems to be the one Thomas applies. Meaning that he's not substituting his judgment for that of the elected representatives that I get to go deal with every two, four, or six years.

I haven't opened the thing up to reach any conclusion yet; I was just pointing out that it's not all that easy, and that imposing consistency on these folks will get some results that baffle or disappoint anyone.

the big complaint is when they're NOT consistent. the only problem with that -- the jsutices may harbour two or more strongly-held beliefs that, when applied, are inconsistent.

I like naked broads.

Tuesday, December 05, 2006 2:25:00 pm  
Anonymous deeter`` said...

You know, I just re-read the shorthand that I use instead of English, and find that I am again nearly indecipherable.



GOD I love this country!

Tuesday, December 05, 2006 3:18:00 pm  
Anonymous ADA Buffoon, J. said...

It seems to want that, but the formula that the language of the statute uses seems to be the one Thomas applies. Meaning that he's not substituting his judgment for that of the elected representatives that I get to go deal with every two, four, or six years.

I just read the damn thing, and I think Thomas is absolutely substituting his judgment for that of Congress.

He says he's applying the plain meaning of the language of the statute. But here in NY we have a tenet (maybe you Feds have a similar one?) which "commands avoidance of self-defeating literalism and mandates that a statute be construed in such a way that its objectives are furthered, not frustrated," and I think Thomas violated that idea.

Let me (attempt to) explain.

The immigration law says you can kick someone out for conviction of an aggravated felony including illicit drug trafficking as defined in title 18. Title 18 defines a drug trafficking crime as "any felony punishable under the Controlled Substances Act."

Now, the defendant was convicted in South Dakota of simple drug possession (actually, aiding someone else's possession). Although that's a misdemeanor in most states, good ol' South Dakota treats it as a felony--but not an "aggravated felony" by any definition of the term I've ever heard. Defendant pleads guilty and gets five years (Five years! Jeezus! That's disorderly conduct and time served on a first arrest in Brooklyn! I gotta think about prosecuting in S.D.! But I digress.)

Under Federal law, simple possession is a misdemeanor.

However, INS decides to deport the defendant saying that since South Dakota treats simple possession as a felony, his conduct is included as "any felony punishable under the CSA."

The problem with this reasoning is first, that the phrase "any felony punishable under the CSA" is a definition of "drug trafficking crime" which itself is a definition of an "aggravated felony."

Secondly, Thomas and the Government would have you believe that when Congress wrote "any felony punishable under the CSA" they meant "any drug possession conviction, even if the conduct is treated as a misdemeanor under the CSA, if it is treated as a felony by state law."

Sure, that's one way of reading it, but don't you think that's awfully hyper-technical and pretty obviously not what the legislature had in mind?

Don't you think it's pretty obvious that the legislature was talking about drug crimes that are punishable as felonies under the CSA? That the majority gets closer to the "plain meaning"?

Tuesday, December 05, 2006 4:04:00 pm  

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