In my previous post on Lockhart v. United States, a case that will be argued next Tuesday, I argued that the government had made a self-defeating surplusage argument that picked at one bit of surplusage in Lockhart's reading of the statute only to create an absurd and even "suicidal" amount of surplusage on their own reading. I still think the government's surplusage argument is pretty silly, but I'm no longer so sure the government's reading creates an absurd amount of surplusage.
Again, a child pornography sentencing provision provides for an enhanced mandatory minimum if a defendant has a prior conviction for an offense relating to "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." Lockhart, who suffered an enhanced sentence for a sexual abuse conviction that did not involve a minor or ward, says "sexual abuse" = "abusive sexual conduct," and aggravated sexual abuse is a subset of sexual abuse, so it makes sense for "involving a minor or ward" to modify everything. The government, agreeing that sexual abuse and abusive sexual conduct are synonyms, says that that makes sexual abuse redundant. What avoids this redundancy, they say, is making "involving a minor or ward" modify only "abusive sexual conduct"; now the unmodified "sexual abuse" means something different from the modified "abusive sexual conduct." Lockhart argues, and I initially agreed, that that's ridiculous. In seemingly avoiding Lockhart's surplusage, they've made "involving a minor or ward" surplusage, since, if sexual abuse and abusive sexual conduct are synonyms, "involving a minor or ward" doesn't meaningfully limit anything. And, they haven't even meaningfully avoided Lockhart's surplusage; at most, they've only shifted it (whereas on Lockhart's reading "sexual abuse" was redundant, on theirs "abusive sexual conduct" is).
I don't mind the redundancies in Lockhart's reading, since the one thing that's very clear about this bit of statutory text is that the first third of it was completely unnecessary for Congress to write; you don't need "aggravated sexual abuse" when you have "sexual abuse" (whether "involving a minor or ward" modifies both or neither). Given that, it's easy to conclude that the entire series takes an aggressively belt-and-suspenders approach. . However, I'm not sure, anymore, that I mind the surplusage in the government's reading either.
It is true, and important to bear in mind, that the government's surplusage is of a more unusual kind than Lockhart's. While the surplus language in Lockhart's reading merely repeats something that's already in the statute in a slightly different way, something which Congress is known to do, the surplus language in the government's reading appears to codify a limitation that turns out to be completely ineffective. As Justice Scalia argued in his dissent in Burwell in response to the Court's reading "established by the State" to do no limiting work, it's easier to conceive of Congress being redundant than of Congress saying something once and meaning nothing by it.
Justice Scalia, though, did lose in Burwell. Of course, he did so due to some extremely powerful purposive arguments that aren't present in this case, where Congress's intentions are extremely opaque. This case, however, has some features that make the government's textual argument somewhat stronger than it was in Burwell. In this case, the broad phrase "sexual abuse" is flanked by two more specific phrases - "aggravated sexual abuse," and "abusive sexual conduct involving a minor or ward." We know the first is an unnecessary codification of a subset of "sexual abuse." And if we think carefully about what "aggravated sexual abuse" is doing, we find not only that it is a redundant subset of sexual abuse, but that the modifier "aggravated" is a limitation which does no work, because it is canceled by the enumeration of the broader "sexual abuse." Now, why can't "abusive sexual conduct involving a minor or ward" also be a subset of "sexual abuse"? And why can't "involving a minor or ward," like "aggravated," also be a limitation which does no real work?
This is, at least, a neatly parallel interpretation of the series. It's also a fairly odd one, but it may just be that, by listing terms which, strictly speaking, were included within "sexual abuse," the drafter of this language believed he was making absolutely sure that courts would read crimes involving minors and aggravated offenses into the statute. This is a sort of explanation for the surplus "involving a child or ward" language that wasn't available to explain the surplus "established by the State" language in Burwell. Further, if one takes the recent research showing that legislative drafters don't mind superfluities to heart, one ought to be cautious about ejecting a reading of the statute solely on the ground that it would create a lot of surplusage.
That being said, I still think the much better argument for the government would have been to claim that "abusive sexual conduct involving a minor or ward" captures some offenses that wouldn't be deemed "sexual abuse." That makes sense to me in part because, when we talk about sexually abusing minors, we may think that something is sexual abuse of a minor when the same thing wouldn't be sexual abuse of an adult. I'm reminded here of an immigration-law parallel. A provision of immigration law makes "sexual abuse of a minor" an aggravated felony - an immigration term of art which means an alien is not only deportable, but ineligible for discretionary cancellation of deportation. The Board of Immigration Appeals, and several circuits that have deferred to the Board under Chevron, reads this phrase to include non-contact offenses like indecent exposure, relying on a definition of sexual abuse of minors in a federal statute that addresses when a child can testify by closed-circuit television. This is a substantially broader definition than that given in the federal criminal statute addressing "sexual abuse of a minor or ward," and the latter might seem more relevant to deciding what a conviction for "abusive sexual conduct of a minor or ward" includes than a child testimony statute. On the other hand, "abusive sexual conduct" may be broader than sexual abuse.
I find Lockhart a very hard case, though I suspect a majority of the Justices will reject the government's arguments for the reasons I did initially. In arguing that a modifier effectively limits nothing when it could easily be read to limit the entire series of listed generic offenses, the government's set itself a very tall task of persuasion. To me, the best argument here is ultimately not surplusage, but a loose kind of associated-words/noscitur a sociis argument. Since the two generic state offenses that follow the list of abuse offenses - child sex trafficking, prior child pornography convictions - both involve children, while the enumerated federal offenses (which include federal obscenity convictions) don't invariably involve children, I tend to detect an intention to go broad where federal priors are concerned and go child-specific where state priors are concerned. Why Congress would do that I'm not quite sure (perhaps a greater confidence in federal prosecutors and the federal criminal justice system), but they clearly did it as to obscenity, where they made federal obscenity convictions an enhancing prior irrespective of the involvement of children, but only made state child pornography convictions an enhancing prior. (This, again, has been another demonstration of the essentially intentionalist character of textualist interpretive devices.)