Cite as: 523 U. S. 155 (1998)
Scalia, J., concurring in judgment
See, e. g., United States v. Brown, 608 F. 2d 551 (CA5 1979) (striking a child is not the same "precise act" for purposes of a federal assault law and a state law against child abuse). I am skeptical of any interpretation which leaves a statute doing no real interpretive work in most of the hard cases which it was drafted to resolve. On that score, however, the Court's solution is no improvement. After rejecting proposals from the petitioner and from the United States that would have given the ACA more definite content (on the policy grounds that they would produce too little, and too much, assimilation, respectively), the Court invites judges to speculate about whether Congress would approve of assimilation in each particular case.
"[T]he court must ask . . . whether the federal statutes that apply to the 'act or omission' preclude application of the state law in question, say, because its application would interfere with the achievement of a federal policy, because the state law would effectively rewrite an offense definition that Congress carefully considered, or because federal statutes reveal an intent to occupy so much of a field as would exclude use of the particular state statute at issue . . . . The primary question (we repeat) is one of legislative intent: Does applicable federal law indicate an intent to punish conduct such as the defendant's to the exclusion of the particular state statute at issue?" Ante, at 164, 166 (citations omitted).
Those questions simply transform the ACA into a mirror that reflects the judge's assessment of whether assimilation of a particular state law would be good federal policy.
I believe that the statutory history of the ACA supports a more principled and constraining interpretation of the current language. The original version of the ACA provided for assimilation whenever "any offence shall be committed . . . , the punishment of which offence is not specially provided for by any law of the United States." 4 Stat. 115.
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