Confusion in United States v. Santos

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3 Responses

  1. Marty Lederman says:

    Well, in this case, of course — as I noted on Monday — — the Justices not only lacked a majority rationale, but also lacked a majority on the very question of what the precedential effect would be. And where that’s the case, what would they include in the “separate statement”?

    I’m more interested, though, in a broader question your post raises: Who is the “we” in the final sentence? I assume you mean “Congress,” enacting such a requirement by statute. Would such a statute be constitutional? The standard answer is “no,” but there’s very little consensus about exactly why that’s the case.

  2. Congrats – a positive link to this posting by Robert VerBruggen on Bench Memos over at National Review Online.

    I hope this doesn’t hurt your standing in the academy

  3. r.friedman says:

    Perhaps Santos indicates a failure of textualism. Why did this case become a battle over the word “proceeds”, and to a lesser extent, “promote”? Why instead couldn’t it have been a dispute over when a crime is complete (as

    Breyer indicates it should be) or the meaning of money laundering in the context of the various predicate crimes (which Stevens indicates it should be)? Perhaps there are good reasons why not — disposing of the proceeds is traditionally part of at least some crimes, criminal defendants should have fair warning of prohibited conduct — and perhaps Congress should have written a better statute. But it seems that “money laundering” has some inherent meaning which Congress was trying to catch, perhaps in some forest-and-trees way it is a mistake to determine what statutes mean solely by the meaning of their constituent words.