THOMAS, J., dissenting

Our duty in construing this criminal statute, then, is clear: "The Court has often stated that when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language." McNally v. United States, 483 U.S. 350, 359-360 (1987). See also United States v. Wiltberger, 5 Wheat. 76, 95 (1820) (Marshall, C. J.). Because the Court's expansive interpretation of the statute is not the only plausible one, the rule of lenity compels adoption of the narrower interpretation. That rule, as we have explained on many occasions, serves two vitally important functions:

"First, ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.' Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity." United States v. Bass, 404 U. S. 336, 348 (1971) (citations omitted; footnote omitted).

Given the text of the statute and the rule of lenity, I believe that inducement is an element of official extortion under the Hobbs Act.

Perhaps sensing the weakness of its position, the Court suggests an alternative interpretation: even if the statute does set forth an "inducement" requirement for official extortion, that requirement is always satisfied, because "the coercive element is provided by the public office itself."

defines [official] extortion as 'the obtaining of property from another under color of official right,' or as 'the obtaining of property from another, with his consent, induced under color of official right.'. . . [T]he grammatical structure of the Hobbs Act would appear to support the latter language") (emphasis added).

THOMAS, J., dissenting

Ante, at 266. I disagree. A particular public official, to be sure, may wield his power in such a way as to coerce unlawful payments, even in the absence of any explicit demand or threat. But it ignores reality to assert that every public official, in every context, automatically exerts coercive influence on others by virtue of his office. If the chairman of General Motors meets with a local court clerk, for example, whatever implicit coercive pressures exist will surely not emanate from the clerk. In Miranda v. Arizona, 384 U. S. 436 (1966), of course, this Court established a presumption of "inherently compelling pressures" in the context of official custodial interrogation. Id., at 467. Now, apparently, we assume that all public officials exude an aura of coercion at all places and at all times. That is not progress.

B

The Court's construction of the Hobbs Act is repugnant not only to the basic tenets of criminal justice reflected in the rule of lenity, but also to basic tenets of federalism. Over the past 20 years, the Hobbs Act has served as the engine for a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws-acts of public corruption by state and local officials. See generally Ruff, Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy, 65 Geo. L. J. 1171 (1977). That expansion was born of a single sentence in a Third Circuit opinion: "[The 'under color of official right' language in the Hobbs Act] repeats the common law definition of extortion, a crime which could only be committed by a public official, and which did not require proof of threat, fear, or duress." United States v. Kenny, 462 F. 2d 1205, 1229, cert. denied, 409 U. S. 914 (1972). As explained above, that sentence is not necessarily incorrect in its description of what common-law extortion did not require; unfortunately, it omits an important part of what common-law extortion did require. By over

THOMAS, J., dissenting

looking the traditional meaning of "under color of official right," Kenny obliterated the distinction between extortion and bribery, essentially creating a new crime encompassing both.

"As effectively as if there were federal common law crimes, the court in Kenny... amend[ed] the Hobbs Act and [brought] into existence a new crime-local bribery affecting interstate commerce. Hereafter, for purposes of Hobbs Act prosecutions, such bribery was to be called extortion. The federal policing of state corruption had begun." J. Noonan, Bribes 586 (1984).

After Kenny, federal prosecutors came to view the Hobbs Act as a license for ferreting out all wrongdoing at the state and local level—"a special code of integrity for public officials."" United States v. O'Grady, 742 F. 2d 682, 694 (CA2 1984) (en banc) (quoting letter from Raymond J. Dearie, United States Attorney for the Eastern District of New York, to the United States Court of Appeals for the Second Circuit, dated Jan. 21, 1983). In short order, most other Circuits followed Kenny's lead and upheld, based on a bribery rationale, the Hobbs Act extortion convictions of an astonishing variety of state and local officials, from a State Governor, see United States v. Hall, 536 F. 2d 313, 320–321 (CA10), cert. denied, 429 U. S. 919 (1976), down to a local policeman, see United States v. Braasch, 505 F. 2d 139, 151 (CA7 1974), cert. denied, 421 U. S. 910 (1975).

Our precedents, to be sure, suggest that Congress enjoys broad constitutional power to legislate in areas traditionally regulated by the States-power that apparently extends even to the direct regulation of the qualifications, tenure, and conduct of state governmental officials. See, e. g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 547-554 (1985). As we emphasized only last Term, however, concerns of federalism require us to give a narrow construction to federal legislation in such sensitive areas unless

THOMAS, J., dissenting

Congress' contrary intent is "unmistakably clear in the language of the statute." Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) (internal quotation marks omitted). "This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere." Id., at 461. Gregory's teaching is straightforward: because we "assume Congress does not exercise lightly" its extraordinary power to regulate state officials, id., at 460, we will construe ambiguous statutory provisions in the least intrusive manner that can reasonably be inferred from the statute, id., at 467.

Gregory's rule represents nothing more than a restatement of established law:

"Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States. . . . As this Court emphasized only last Term in Rewis v. United States, [401 U. S. 808 (1971)— a case involving the Hobbs Act's counterpart, the Travel Act], we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction. In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision." United States v. Bass, 404 U. S., at 349 (footnote omitted).

Similarly, in McNally v. United States, 483 U. S. 350 (1987)— a case closely analogous to this one-we rejected the Government's contention that the federal mail fraud statute, 18 U. S. C. § 1341, protected the citizenry's "intangible right” to good government, and hence could be applied to all instances of state and local corruption. Such an expansive reading of

THOMAS, J., dissenting

the statute, we noted with disapproval, would “leav[e] its outer boundaries ambiguous and involv[e] the Federal Government in setting standards of disclosure and good government for local and state officials." Cf. Baxter, Federal Dis

'Prior to our decision in McNally, the Government's theory had been accepted by every Court of Appeals to consider the issue. We did not consider that acceptance to cure the ambiguity we perceived in the statutory language; we simply reiterated the traditional learning that a federal criminal statute, particularly as applied to state officials, must be construed narrowly. See 483 U. S., at 359-360. "If Congress desires to go further," we said, "it must speak more clearly than it has." Id., at 360.

The dissent in McNally argued strenuously that the Court's interpretation of the statute should be informed by the majority view among the Courts of Appeals and Congress' subsequent silence:

"Perhaps the most distressing aspect of the Court's action today is its casual—almost summary-rejection of the accumulated wisdom of the many distinguished federal judges who have thoughtfully considered and correctly answered the question these cases present. . . . I [can]not join a rejection of such a longstanding, consistent interpretation of a federal statute. See Commissioner of Internal Revenue v. Fink, 483 U. S. 89, 101 (1987) (STEVENS, J., dissenting); Citicorp Industrial Credit, Inc. v. Brock, 483 U. S. 27, 40 (1987) (STEVENS, J., dissenting); Runyon v. McCrary, 427 U. S. 160, 189 (1976) (STEVENS, J., concurring)." Id., at 376377 (opinion of STEVENS, J.).

The interpretation given a statute by a majority of the Courts of Appeals, of course, is due our most respectful consideration. Ultimately, however, our attention must focus on the reasons given for that interpretation. Error is not cured by repetition, and we do not discharge our duty simply by counting up the circuits on either side of the split. Here, the minority position of the Second and Ninth Circuits (both en banc) is far more thoughtfully reasoned than the position of the majority of Circuits, which have followed the Third Circuit's lead in United States v. Kenny, 462 F. 2d 1205 (1972), "without setting forth a reasoned elaboration for their conclusions." United States v. Cerilli, 603 F. 2d 415, 427, and n. 5 (CA3 1979) (Aldisert, J., dissenting). Moreover, I reject the notion-as this Court has on many occasionsthat Congress, through its silence, implicitly ratifies judicial decisions. See, e. g., Patterson v. McLean Credit Union, 491 U. S. 164, 175, n. 1 (1989) ("It is impossible to assert with any degree of assurance that congressional failure to act represents affirmative congressional ap