WASHINGTON \u2014 The Supreme Court seemed poised on Monday to limit the scope of a federal law that adds two years of prison time to sentences for a variety of felonies if the defendant engaged in identity theft in the process.<\/p>\n
The case concerned Davis Dubin, who was convicted of health care fraud. Mr. Dubin, whose company provided mental health testing to young people at emergency shelters in Texas, was accused of bilking Medicaid by misrepresenting who had conducted the testing and when it was performed and by rounding up the number of hours spent carrying out the tests from 2.5 to three.<\/p>\n
Mr. Dubin\u2019s sentence included a two-year mandatory minimum term under a statutory provision titled \u201caggravated identity theft.\u201d But the text of the provision is broad and does not seem to require identity theft in the ordinary understanding of that phrase. Rather, it requires the longer sentence if the defendant \u201cduring and in relation to\u201d certain felonies \u201cknowingly transfers, possesses or uses without lawful authority, a means of identification of another person.\u201d<\/p>\n
Jeffrey L. Fisher, a lawyer for Mr. Dubin, said his client had not used a patient\u2019s identity in any meaningful way, adding that the nature of the conduct mattered. \u201cIt has to be a lie about who receives services or who obtains services,\u201d he said, \u201cnot a lie about how those services were rendered.\u201d<\/p>\n
The justices tried to test the limits of that argument. Justice Clarence Thomas asked, for instance, about a valet parking a Porsche, noting that \u201cI don\u2019t have one.\u201d<\/p>\n
A race to the right. <\/strong>After a series of judicial bombshells\u00a0in June that included eliminating the right to abortion, a Supreme\u00a0Court dominated by conservatives returned\u00a0to the bench in October \u2014 and there are few signs that the court\u2019s rightward shift\u00a0is slowing. Here\u2019s a closer look at the term:<\/span><\/p>\n Affirmative action. <\/strong>The marquee cases of the\u00a0term are challenges to the race-conscious admissions programs\u00a0at Harvard and the University of North Carolina. While the court has repeatedly upheld\u00a0affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedent at risk.<\/span><\/p>\n Voting rights. <\/strong>The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map\u00a0that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited\u00a0the law\u2019s reach in other contexts.<\/span><\/p>\n Discrimination against gay couples. <\/strong>The justices heard an appeal from a web designer who objects to providing services for same-sex marriages\u00a0in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.<\/span><\/p>\n Tech companies\u2019 legal shield. <\/strong>The court is reviewing\u00a0a sweeping law\u00a0that prevents tech companies such as Facebook and Google\u00a0from being held responsible for the content posted on their site. The case could have potentially seismic ramifications\u00a0for social media platforms\u00a0and alter the very structure of the internet.<\/span><\/p>\n Student loan cancellation challenges. <\/strong>The justices will hear arguments about President Biden\u2019s plan\u00a0to forgive an estimated $400 billion in federal student loan debt. Conservative states have called the plan an abuse\u00a0of executive authority. The first question the court will explore is whether the states are even entitled to sue.<\/span><\/p>\n \u201cThe valet is authorized to drive it generally but not to drive it around the city, but to park it,\u201d he said. \u201cSo I don\u2019t see how this is any different from that. He\u2019s authorized to bill at the appropriate charges, but it\u2019s not a general authorization.\u201d<\/p>\n Justice Ketanji Brown Jackson asked about charges at a restaurant. \u201cI give the waiter my credit card, and rather than charging me for the food, he charges me, you know, he pays down his mortgage with my credit card,\u201d she said.<\/p>\n Justice Neil M. Gorsuch also asked about restaurant charges. \u201cIf the government\u2019s theory is correct and every time I order salmon at a restaurant I\u2019m told it\u2019s fresh, but it\u2019s frozen, and my credit card is run for fresh salmon, that\u2019s identity theft,\u201d he said.<\/p>\n He said that the government\u2019s position in the case would transform commonplace misconduct into identity theft \u201cwhether it\u2019s in a restaurant billing scenario, a health care billing scenario, or lawyers who round their hours up.\u201d He added, to laughter, \u201cI\u2019m sure nobody in this audience has ever done that.\u201d<\/p>\n Vivek Suri, a lawyer for the federal government, faced hostile questions.<\/p>\n \u201cLet\u2019s say the only allegation here involved the rounding up from 2.5 hours to three hours,\u201d Justice Thomas said. \u201cWould that be sufficient to violate this provision?\u201d<\/p>\n Mr. Suri said yes. \u201cI appreciate that that may seem an unattractive result,\u201d he said.<\/p>\n Justice Thomas responded that \u201cunattractive is an understatement.\u201d<\/p>\n Justice Gorsuch said Mr. Suri had conceded away his case. \u201cIt seems to me you\u2019ve just given up the ghost and clarified things substantially \u2014 that every time anyone overbills for anything, that triggers this statute,\u201d Justice Gorsuch said.<\/p>\n Justice Jackson appeared to agree. \u201cIt\u2019s like every fraud in the world,\u201d she told Mr. Suri. \u201cAnd you just admitted in response to Justice Thomas that it could be a teeny, teeny fraud.\u201d<\/p>\n Near the end of the argument in the case, Dubin v. United States, No. 22-10, Mr. Fisher said the two-year mandatory minimum sentence under the contested provision functioned as \u201ca very strong cudgel to use against people to procure pleas in very low-level fraud cases.\u201d<\/p>\n \u201cAnd that\u2019s not what Congress was aimed for in this case,\u201d he said. \u201cCongress wasn\u2019t trying to create a two-year mandatory minimum all of a sudden for ordinary fraud offenses.\u201d<\/p>\nMore on the U.S. Supreme Court<\/h2>\n