U.S. Supreme Court Curbs Overbroad Use of Identity Theft Law

Congress established a sentence enhancement for “aggravated identity theft,” 18 U. S. C. §1028A(a)(1), when one “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” in the course of committing certain other crimes. This broad language can include a wide variety of misuses that would not even remotely come within what most people would regard as identity theft.

Today, the Supreme Court decided the case of Dubin v. United States, No. 22-10. Dubin’s actual crime was a rather mundane case of Medicaid fraud, disturbingly common but not unusual. He charged the government for testing by a licensed psychologist when the test was actually done by an associate and should have been paid at a lower rate. In the process of bilking this important government program, he necessarily used the patient’s Medicaid reimbursement number. He was not claiming to be someone he wasn’t. Is this “aggravated identity theft”?

The high court’s unsurprising answer, unanimous in the result, is no. Justice Sotomayor’s opinion for the Court, joined by seven other Justices, says the section applies only when the use of another’s identification in committing a crime “is at the crux of what makes the conduct criminal.”

This is too vague for Justice Gorsuch, who concurs only in the result. He calls on Congress to fix its sloppy language. That would be the best approach, of course. But until Congress does act, courts have to deal with the statute as it is.

Dubin remains convicted of the crime he actually committed: healthcare fraud in violation of 18 U. S. C. §1347.