Language Of The Law

A few years ago Justice Scalia published "A Matter of Interpretation" in which he emphasized interpreting the law based on what the text of the law says. He railed against judges who considered the legislative intent and history. I wonder what he would say about this opinion by Judge [Diarmuid] O'Scannlain of the Ninth Circuit Court of Appeals.

If you don't care for the technicalities of the English language, then pass this by. I find it interesting even though I don't grok it all.

The question concerned the interpretation of this:

Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrantvisa, permit, border crossing card, alien registration receipt card, or other document . . . or . . . possesses. . . any such visa, permit, border crossing card, alien registration receipt card, or other document . . .knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement . . . [shall be punished].

The defendant, a Serbian immigrant, is alleged to have made false statements in obtaining his immigration papers and green card by not revealing his military service while in Serbia. The opinion leads off with:

[1] At first glance, the statute appears to prohibit two independent acts. The first part criminalizes “knowingly forg[ing], counterfeit[ing], alter[ing], or falsely mak[ing]” an immigration document. The second part seems to punish “possess[ing]” an immigration document “knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement.” The government urges us to interpret the statute in this bifurcated way.

[2] The words “any such,” however, which appear between the paragraph’s two halves, complicate our task. Krstic contends that “any such” refers back to the phrase “knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa.” In Krstic’s view, the statute contemplates an immigration document that has been forged, counterfeited, altered, or falsely made, not an authentic document. The government, on the other hand, maintains that “any such” is shorthand for the phrase “immigrant or nonimmigrant.” According to the government, “[t]here is simply no reason why the verbs from the first clause should be converted into adjectives applicable to the second.”

In our view, neither side has the better of this argument.

Then this:

[4] Because we cannot decide this case on textual grounds alone, we turn to the history of the statute. Section 1546(a)’s first paragraph originated as section 22 of the Immigration Act of 1924.

The judges begin with the original statute and then look at the amendments made over the years to determine what Congress intended. I think that would really tick Scalia off.

I am not a lawyer, but if Congress amended the law and in doing so allows for more than one interpretation then it seems it would be more appropriate for the rule of lenity to be applied.