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Kennedy, J., dissenting
assimilation. And for many concrete cases, they are too vague to be of help.
A more serious problem with the majority's approach, however, is that it undervalues the best indicia of congressional intent: the words of the criminal statutes in question and the factual elements they define. There is a methodology at hand for this purpose, and it is the Blockburger test we use in double jeopardy law. See Blockburger v. United States, 284 U. S. 299 (1932); see also Missouri v. Hunter, 459 U. S. 359, 366-367 (1983) (Blockburger is a rule for divining congressional intent). Under Blockburger, we examine whether "[e]ach of the offenses created requires proof of a different element." 284 U. S., at 304. In other words, does "each provision requir[e] proof of a fact which the other does not"? Ibid.
The same-elements test turns on the texts of the statutes in question, the clearest and most certain indicators of the will of Congress. The test is straightforward, and courts and Congress are already familiar with its dynamic. Following Blockburger, a same-elements approach under the ACA would respect federalism by allowing a broad scope for assimilation of state law. The majority rejects this approach, however, because federal and state statutes may have trivial differences in wording or may differ in jurisdictional elements. Ante, at 163, 165.
It would be simpler and more faithful to federalism to use a same-elements inquiry as the starting point for the ACA analysis. Courts could use this standard and still accommodate the majority's concerns. Under this view, we would look beyond slight differences in wording and jurisdictional elements to discern whether, as a practical matter, the elements of the two crimes are the same. The majority frets that a small difference in the definitions of purses in federal and state purse-snatching laws would by itself permit assimilation. Ante, at 163. But a slight difference in definition need not by itself allow assimilation. See Amar & Marcus,
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