Kagan Cites Bond’s Federalism Canon in Loughrin

June 23rd, 2014

As pointed by Abbe Gluck, in Bond the Court relied on what can be called a federalism canon.

Some commentators were eagerly anticipating a major foreign affairs/treaty power opinion. Instead, many were aghast that the Court avoided the hard constitutional questions raised by the case by applying a mundane principle of statutory interpretation.  Others were even more infuriated that  the Court allegedly “invented” the interpretive principle that it used for this case. Commentators (see, e.g., this piece in the  National Review) cheered on Justice Scalia for opposing application of this brand new “federalism presumption”—the rule that ambiguous federal statutes be construed not to intrude on traditional state domains.  In fact, that principle is neither new, nor does Justice Scalia oppose it.  The principle is a first-cousin of the presumption against preemption (which has been around at least since the 1930s) and was itself announced in Gregory v. Ashcroft, 501 U.S. 452 (1991) (joined by Justice Scalia) and applied in case after case since then.  The canon is so common that not teaching it would be malpractice in any statutory interpretation course.  The worlds of statutory interpretation and constitutional law are too inextricably intertwined at this point for any Court-watchers to be surprised about the existence of these interpretive presumptions or their decisive power in major, constitutional-law-implicating cases. 

In Loughrin v. United States, Justice Kagan cited that canon to find limitations on broadly construing federal criminal laws that intrude on state criminal matters.

Unless the text requires us to do so, we should not con- strue §1344(2) as a plenary ban on fraud, contingent only on use of a check (rather than cash). As we have often (and recently) repeated, “we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.” Bond v. United States, 572 U. S. ___, ___ (2014) (slip op., at 13) (quoting United States v. Bass, 404 U. S. 336, 349 (1971)); see Cleveland, 531 U. S., at 24 (“We resist the Government’s reading . . . because it invites us to approve a sweeping expansion of federal criminal juris- diction in the absence of a clear statement by Congress”); Jones v. United States, 529 U. S. 848, 858 (2000) (similar). Just such a rebalancing of criminal jurisdiction would follow from interpreting §1344(2) to cover every pedestrian swindle happening to involve payment by check, but in no other way affecting financial institutions. Indeed, even the Government expresses some mild discomfort with “federalizing frauds that are only tangentially related to the banking system.” Brief for United States 41.

Bond is quite useful here.