The Justice Department's argument in the Supreme Court might be considered silly if it hadn't been accepted by a number of lower courts. (The fact that Republican presidents nominated federal judges for 20 of the 28 years preceding the Obama presidency undoubtedly has something to do with the willingness of those courts to accept the Justice Department's strained reasoning.)
Justice Stephen G. Breyer, in his opinion for the court, said the case should be decided by applying “ordinary English grammar” to the text of the law, which applies when an offender “knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.” The government had argued that the “knowingly” requirement applied only to the verbs in question. Justice Breyer rejected that interpretation, saying that “it seems natural to read the statute’s word ‘knowingly’ as applying to all the subsequently listed elements of the crime.”
He gave examples from everyday life to support this view. “If we say that someone knowingly ate a sandwich with cheese,” Justice Breyer wrote, “we normally assume that the person knew both that he was eating a sandwich and that it contained cheese.”
The government claimed it only had to prove that the worker knowingly used a means of identification (a counterfeit social security card) without lawful authority -- an interpretation that, as Justice Alito noted in a surprisingly reasonable concurring opinion, makes criminal liability a product of chance.
Consider, Justice Alito said, a defendant who chooses a Social Security number at random. “If it turns out that the number belongs to a real person,” Justice Alito wrote, “two years will be added to the defendant’s sentence, but if the defendant is lucky and the number does not belong to another person, the statute is not violated.”
If the eminently sensible reasoning advanced by Justices Breyer and Alito occurred to the Justice Department, its sense of reason was overcome by its inclination to use heavy-handed tactics against undocumented workers.
Stephen H. Legomsky, a professor of immigration law at Washington University School of Law in St. Louis, said Monday’s decision would have a major impact on the strategy of Immigration and Customs Enforcement, making it more difficult for the agency to press criminal charges against immigrants with no other offenses but working illegally. “In the ordinary immigration case, this will no longer be a weapon,” Professor Legomsky said.
Nor should it be. Perverting the meaning of clear statutes to gain a litigation advantage takes the "Justice" out of Justice Department.