Justices lean toward narrow reading of aggravated identity theft

In many ways, Mondays oral argument in Dubin v. United States felt like a legislation class in law school, with various canons of statutory construction being bandied about. Dubin concerns the reach of the federal aggravated identity theft statute and whether a person must steal anothers identity to commit the crime. At argument, the justices wrestled with whether David Dubin, when he overbilled Medicaid, used the identification of another without lawful authority during and in relation to an enumerated felony here, health care fraud.

Arguing for Dubin, Jeffrey Fisher began by recognizing that what Dubin allegedly did does not meet any ordinary understanding of the term identity theft. Fisher explained why Dubins conduct does not fit within the statutory terms either. One, Dubin did not use the patients name in relation to his health care fraud offense because use of the patients name was merely incidental, and not instrumental, to the fraud. Two, Dubin did not use the patients name without lawful authority, as he had the patients permission to bill Medicaid for services. Further supporting his reading of the statute, argued Fisher, was the statutes title, aggravated identity theft, which illuminates what the statutory text means. But Fisher did not stop there. He then marshaled several canons of statutory construction that he argued militated in favor of his reading of the statute, including the rule of lenity, the canon against surplusage, the federalism canon, and the canon of constitutional avoidance.

Many of the justices seemed sympathetic to Dubins position, with different justices focusing on different canons. Justices Sonia Sotomayor, Neil Gorsuch, and Ketanji Brown Jackson worried about the due process vagueness concerns that could result from the governments broad reading of the statute. Gorsuch also seemed particularly concerned with the notion that the governments reading of the statute would swallow up vast swaths of state law authority as traditionally understood in violation of the federalism canon. And Justice Amy Coney Barrett had questions about yet another canon of construction, ejusdem generis, and wondered why that particular canon does not suggest that the word use focuses on the unlawful possession of identity itself.

Vivek Suri, arguing for the government, advanced a maximalist view of the identity theft statute. Suri admitted that the governments position was that every time a person committed a fraud, even a relatively small fraud, and uses someones name, their conduct would be covered by the statute. Or, as Gorsuch summarized, every time anyone overbills for anything, that triggers the statute. Sotomayor, Gorsuch, and Jackson continued to express skepticism over this broad position, with Justice Brett Kavanaugh also wondering why, given that the elements of the statute are vague, the court should not look to the title of the statute as a helpful clue about how broadly to read those somewhat elastic terms. Dubin should have felt pretty good after the argument.

Someone else who should have felt good, or at least important, after the argument, is Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit, as the justices spent a fair amount of time unpacking a heuristic he adopted in a similar case. As Fisher described it, Sutton explained that the identity theft statute covers lies about who receives services and not lies about how [or when] those services were rendered. And while Suttons heuristic might not answer all the questions that may arise under the statute for example, lies about what services were provided at least some of the justices seemed to think that the test that Sutton announced was a good starting point. Indeed, even Suri said that, if the government were to lose, the court should adopt Suttons test. Dubin would certainly be happy with that outcome.