Cite as: 523 U. S. 224 (1998)
Scalia, J., dissenting
withstanding" that the alien would otherwise be covered by subsection (a).5
The Court relies on an earlier version of § 1326 to support its interpretation of the statute in its current form. Ante, at 232. While I agree that such statutory history is a legitimate tool of construction, the statutory history of § 1326 does not support, but rather undermines, the Court's interpretation. That earlier version contained a subsection (a) that, in addition to setting forth penalties (as did the subparts of subsection (b)), contained the phrase (which the subparts of subsection (b) did not) "shall be guilty of a felony, and upon conviction thereof . . . ." With such a formulation, of course, it would be easier to conclude that subsection (a) defines the crime and sets forth the basic penalty, and subsection (b) sets forth merely penalty enhancements. But if that was what the additional language in subsection (a) of the 1988 statute connoted, then what was the elimination of that additional language (in the 1990 version of the statute at issue here) meant to achieve? See § 543(b)(3), 104 Stat. 5059. The more strongly the "shall be guilty of a felony" language suggests that subsection (b) of the 1988 statute contained only enhancements, the more strongly the otherwise inexplicable elimination of that language sug-5 The Court contends that treating subsection (b) as establishing substantive offenses renders the "notwithstanding" and "subject to" provisions redundant, because even without them our lesser included-offense jurisprudence would prevent a defendant from being convicted under both subsections (a) and (b). Ante, at 231. Redundancy, however, consists of the annoying practice of saying the same thing twice, not the sensible practice of saying once, with clarity and conciseness, what the law provides. The author of today's opinion once agreed that "[t]he fact that each subsection makes reference to the other is simply the logical way of indicating the relationship between the arguably two separate crimes." United States v. Forbes, 16 F. 3d 1294, 1298 (CA1 1994). But if this be redundancy, it is redundancy that the Court's alternative reading does not cure—unless one believes that, without the "notwithstanding" and "subject to" language, our interpretive jurisprudence would permit the subsection (a) penalty to be added to the subsection (b) penalties.
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