Van Buren Continues Supreme Court's Pattern of Statutory Interpretation to Avoid Criminalizing Trivial Acts

Indeed, the Van Buren decision well fits into a pattern of the court's modern criminal law jurisprudence that, while purporting to use only traditional tools of statutory interpretation and to eschew policy judgments, nevertheless appears motivated by concerns about the ever-expanding reach and severity of federal criminal law. Over the past decade, the Supreme Court increasingly has questioned the Justice Department's broad interpretations of various criminal statutes and their application to novel factual scenarios outside the perceived heartland of conduct at which the laws were aimed. Although in certain instances the court has tackled the overbreadth issue directly — for example, holding that the Armed Career Criminal Act's "residual clause" was void-for-vagueness in Johnson v. United States, 576 U.S. 591 (2015) — more often, the court takes a subtler approach of adopting less-than-obvious narrow interpretations of criminal statutes that appear broadly written. Nevertheless, the court tips its hand by injecting into its mix of textualist tools policy arguments regarding the absurd consequences that could result from the broad interpretations urged by the government. Indeed, one important thread that runs through these decisions is the court's disavowal of the notion that "prosecutorial discretion" provides any meaningful check on the excessive breadth of criminal statutes.