732
Scalia, J., dissenting
being." A facial challenge to the regulation would not be rejected on the ground that, after all, it could be applied to a killing that happened to be premeditated. It could not be applied to such a killing, because it does not require the factfinder to find premeditation, as the statute requires. In other words, to simplify its task the Court today confuses lawful application of the challenged regulation with lawful application of a different regulation, i. e., one requiring the various elements of liability that this regulation omits.
III
In response to the points made in this dissent, the Court's opinion stresses two points, neither of which is supported by the regulation, and so cannot validly be used to uphold it. First, the Court and the concurrence suggest that the regulation should be read to contain a requirement of proximate causation or foreseeability, principally because the statute does—and "[n]othing in the regulation purports to weaken those requirements [of the statute]." See ante, at 696-697, n. 9; 700, n. 13; see also ante, at 711-713 (O'Connor, J., concurring). I quite agree that the statute contains such a limitation, because the verbs of purpose in § 1538(a)(1)(B) denote action directed at animals. But the Court has rejected that reading. The critical premise on which it has upheld the regulation is that, despite the weight of the other words in § 1538(a)(1)(B), "the statutory term 'harm' encompasses indirect as well as direct injuries," ante, at 697-698. See also ante, at 698, n. 11 (describing "the sense of indirect causation that 'harm' adds to the statute"); ante, at 702 (stating that the Secretary permissibly interprets " 'harm' " to include "indirectly injuring endangered animals"). Consequently, unless there is some strange category of causation that is indirect and yet also proximate, the Court has already rejected its own basis for finding a proximate-cause limitation in the regulation. In fact "proximate" causation simply means "direct" causation. See, e. g., Black's Law Dictionary 1103
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