Based on the briefs filed in Ressam, the heart of the issue before the Court is the proper interpretation of Section 844(h)(2). The oral argument was brief and did not seem to cover any new ground.

Attorney General Michael Mukasey ran into some opposition in his initial argument before the Court. Chief Justice Roberts almost immediately cut off General Mukasey's effort to rehash the government's basic arguments, asking whether the word "during" could have more than a temporal definition. Justice Scalia quickly followed up, expressing concern about the possible absurd applications the statute might have. Justice Scalia suggested that what troubled him was the hypothetical tax evader who mails a dishonest tax return while carrying a can of gasoline, and yet is still subject to a mandatory minimum of ten years. While not denying that the statute has a broad reach, General Mukasey argued that Congress had opted to create that broad reach, and only Congress should be able to narrow its scope.

Justice Kennedy wondered about the increased power the mandatory minimum would grant the prosecution in plea bargaining, to which General Mukasey pointed out the apparent lack of prosecutorial abuse in the Third Circuit, where, since 1986, the statute had not required a relational element. Justice Breyer sought to articulate a rule that was capable of distinguishing between serious cases and absurd hypotheticals. His proposed rule would find a relationship where the carrying of the explosives was "a necessary condition [to the carrying of the explosives] and foreseeable," but General Mukasey was quick to reject such a possibility.

After a brief colloquy about the statute's different treatment of firearms and explosives, Chief Justice Roberts rejoined the conversation, wondering how often"”if ever"”a relationship between the carrying of explosives and the commission of a felony would be significant to the prosecution's use of the statute. General Mukasey acknowledged that he wasn't aware of a case (besides this one) in which the issue had "arisen," but asserted that Congress didn't want to "rule out anything."

Mr. Hillier, arguing for Respondents, began with an effort to return the Court's attention to the language of the statute, but not necessarily the specific language of Section 844(h)(2). Instead, Mr. Hillier pointed to the language of 844(j), which refers to the "felony in which the explosive was used or carried." The phrase "in which," according to Mr. Hillier, indicated that a relational element"”although not explicitly mentioned in 844(h)(2)"”is required under the statute.

This careful parsing of the language inspired a discussion of the dictionary definitions of the words "in" and "during," that seemed to put the Justices in a holiday spirit. Chief Justice Roberts asked whether the word "in" in the phrase "in the holiday season" necessarily implied a temporal element, and Justice Alito challenged Mr. Hillier to identify an example of "during that is not temporal," to which Mr. Hillier referred back to an earlier example used by Chief Justice Roberts"”"hanging up lights during the holiday season."

Justice Souter, perhaps weary of the definitional contests, suggested that the toughest challenge for Mr. Hillier was not the text of the statute, but rather the statutory history. Congress's decision to add a relational element to Section 924(c)(1) but not to Section 844(h)(2), according to Justice Souter, was "the tough point of the argument." In response, Mr. Hillier resorted to the "statutory construction tool" that "Congress can use different words in different statutes to accomplish the same thing." Upon hearing that Mr. Hillier, if victorious, planned to return to trial and argue that no relationship could be established between Ressam's false statement to the customs official and his carrying of the explosives, Justice Kennedy pounced, claiming that such a strategy "shows the necessity for the very interpretation the attorney general has argued for."

Justices Alito and Breyer then returned to Justice Breyer's effort to interpret the statute to encompass Ressam's conduct while avoiding the possible absurd applications. Justice Alito proposed a sort of reverse relationship, so that a relationship would be found in this case "if the false statement facilitated the unlawful use of the explosives," rather than the other way around. Suggesting that he has "to reach an answer that he believes would be sensible," Justice Breyer continued to ruminate on possible solutions, leading Justice Scalia to express a kind of granter's remorse, suggesting that this "is not a question on which we grant certiorari." Mr. Hillier concluded by returning to the untenable breadth of the statute, suggesting that the rule of lenity should apply when the reach of the statute is so unlimited.

In his rebuttal, General Mukasey made two brief points. First, only Congress, not Justice Breyer, should be responsible for inserting a relational element into the statute. Second, the definition of explosive in the statute is not as wide-ranging as respondent suggests in that gasoline would not fall within the definition unless "it is prepared and processed and presented in a certain way." Following a brief exchange with Chief Justice Roberts and Justice Scalia on the scope of the statute, General Mukasey concluded. Although the Court appeared likely to reverse the Ninth Circuit's decision, the argument on an issue that would rarely arise seemed to bore the Justices more than anything else.

Posted in US v. Ressam, Everything Else