Lopez v. Gonzalez and Toledo-Flores v. United States arguments available on the web

This year, the Supreme Court is posting oral argument transcripts on the day that a case is argued.  So those who are interested in finding out how arguments went in the two “aggravated felony” arguments that took place today can read all about it by visiting the Supreme Court’s website.  The argument for the consolidated cases is listed under “05-547 Lopez v. Gonzalez.”

The transcript of this particular argument is a wild adventure in statutory interpretation.  Argument was not always crystal clear — indeed, at one point, Justice Scalia was prompted to tell the government’s lawyer “You thoroughly confused me.”

Arguments over the possible mootness of Toledo-Flores’ appeal took up quite a bit of time — about 20% of the transcript.  Counsel for Toledo-Flores got to talk about nothing else.  Scalia and Roberts seemed particularly skeptical of Toledo-Flores’ arguments.

The discussion of the mootness issue left the Court with a lot less time to ferret out what Congress means to include as “drug trafficking crimes” for purposes of the aggravated felony provision.

Nevertheless, various members of the Court found time to discuss at some length the questions of whether Congress really intended state drug laws to determine the immigration consequences of drug crimes.  And at one point, Chief Justice Roberts questioned the government’s lawyer as to whether he was given pause by the fact that the government’s interpretation  simple possession equivalent to drug trafficking.  This theme played out a few times over the course of the questioning.

Scalia spent a good deal of time trying to determine whether the government’s argument that a state court conviction controlled whether something was a “drug trafficking crime” for purposes of section 924(c) as referenced in the INA’s aggravated felony definition conflicted with a prior position that the government had (consistently and successfully) taken before the courts regarding 924(c) convictions for purposes of sentencing enhancements [pp.23-24; 38-39].  Breyer suggested that the government’s own prosecutions under 924(c) in other contexts call into question the interpretation of that statute proposed by the government in this case [pp.27-29].  Neither of these issues was the central focus of any of the briefs, and neither was satisfactorily resolved during argument.

-jmc