from McDonnell to Snyder: The Supreme Court’s Public Corruption Cases and the Coming Narrowing of White Collar and FCPA Enforcement, by Yuvraj Tuli & Mohamed ‘Arafa.
For decades, federal prosecutors have relied on elastic statutes to pursue novel schemes that Congress never spelled out. Proponents of this elasticity contend that policy-infused interpretations honor Congress’s larger purpose of policing sophisticated schemes, while textualists warn that such broad statutes erode fair notice, invite arbitrary enforcement, and transfer the power to define crime from Congress to prosecutors.
The Roberts Court has absorbed those critiques: its brand of textualism treats expansive prosecutorial theories with increasing skepticism rather than as valuable tools, showing a broader judicial preference for textual restraint over interpretive flexibility. As a result, the Supreme Court’s pivot toward textualism has forced a fresh look at federal criminal law.