Justices lean toward narrow reading of aggravated identity theft


Publish Date:
February 28, 2023
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Arguing for Dubin, Jeffrey Fisher began by recognizing that what Dubin allegedly did “does not meet any ordinary understanding of the term ‘identity theft.’” Fisher explained why Dubin’s conduct does not fit within the statutory terms either. One, Dubin did not use the patient’s name “in relation to his health care fraud offense” because use of the patient’s name was merely “incidental,” and not “instrumental,” to the fraud. Two, Dubin did not use the patient’s name “without lawful authority,” as he had the patient’s permission to bill Medicaid for services. Further supporting his reading of the statute, argued Fisher, was the statute’s title, “aggravated identity theft,” which “illuminates” “what the statutory text means.” But Fisher did not stop there. He then marshaled several canons of statutory construction that he argued militated in favor of his reading of the statute, including the rule of lenity, the canon against surplusage, the federalism canon, and the canon of constitutional avoidance.

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