Gorsuch, J., concurring in judgment
could use principles of statutory interpretation to choose between them. The same holds true for many of the other statutes the Court (mistakenly) frets I would call into doubt. See ante, at 20, n. 10.
The same cannot be said for §1028A(a)(1), though. There are an uncountable number of ways in which an individual could “us[e]” the “means of identification” of another to commit fraud. That list covers everything from including a victim’s name in the subject line of a fraudulent email; to misrepresenting information on a loan form involving a cosigner; to putting on a wig and walking into a bank with a fake ID. And no obvious neutral rule exists to separate those “uses” that violate §1028A(a)(1) from others that do not. In this way, §1028A(a)(1) is not just an “ambiguous” statute—“one that does define prohibited conduct with some precision, but [that] is subject to two or more different interpretations.” J. Decker, Addressing Vagueness, Ambiguity, and Other Uncertainty in American Criminal Laws, 80 Denver U. L. Rev. 241, 261 (2002) (emphasis added). Instead, it is a vague statute—one that “does not satisfactorily define the proscribed conduct” at all. Id., at 260–261.
I do not write this opinion as wishcasting. Perhaps, by applying the Court’s “crux” test, lower courts will achieve a consistency that has, to date, eluded them. Or perhaps they will, prompted by today’s decision, locate a previously unseen path through this statutory quagmire. But I would not hold my breath. Section 1028A(a)(1) simply does too little to specify which individuals deserve the inglorious title of “aggravated identity thief.” That is a problem Congress alone can fix. Until it does, I fear the issues that have long plagued lower courts will persist. And I will not be surprised if someday, maybe someday soon, they find their way back here.
