270
Scalia, J., dissenting
said. But Congress's expressed understanding that subsection (b) creates separate offenses is surely evidence that it is "fairly possible" to read the provision that way.7
I emphasize (to conclude this part of the discussion) that "fairly possible" is all that needs to be established. The doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one—the one the Court would adopt in any event. Such a standard would deprive the doctrine of all function. "Adopt the interpretation that avoids the constitutional doubt if that is the right one" produces precisely the same result as "adopt the right interpretation." Rather, the doctrine of constitutional doubt comes into play when the statute is "susceptible of" the problem-avoiding interpretation, Delaware & Hudson Co., 213 U. S., at 408—when that interpretation is reasonable, though not necessarily the best. I think it quite impossible to maintain that this standard is not met by the interpretation of subsection (b) which regards it as creating separate offenses.
* * *
For the foregoing reasons, I think we must interpret the statute before us here as establishing a separate offense rather than a sentence enhancement. It can be argued that, once the constitutional doubts that require this course have been resolved, statutes no less ambiguous than the one before us here will be interpretable as sentence enhancements,
7 The Court is incorrect in its contention that the effective-date provision of the 1996 amendments reflects the opposite congressional understanding. See ante, at 237. That provision states that the amendments "apply under [subsection (b)] . . . only to violations of [subsection (a)]," occurring on or after the date of enactment. § 321(c), 110 Stat. 3009-628. There is no dispute, of course, that if subsection (b) creates separate offenses, one of the elements of the separate offenses is the lesser offense set forth in subsection (a). The quoted language is the clearest and simplest way of saying that that element of the subsection (b) offenses must have occurred after the date of enactment in order for the amendments to be applicable.
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