DOJ-OGR-00021122.jpg

Case 22-1426, Document 59, 02/28/2023, 3475902, Page/5 of 113 The Government argued that there is no Ex Post Facto violation in applying § 3283 retroactively to Appellant’s pre-April 30, 2003 conduct. We agree. See Stogner, 539 U.S. at 632. But the Government’s reliance on Ex Post Facto principles is misdirection. As Richardson, Gentile, and Schneider illustrate, the Ex Post Facto Clause is not the final word on whether a statute is impermissibly retroactive. Indeed, the entire premise of Landgraf is that certain statutes must be presumed (absent a clear statement from Congress) to apply only prospectively, even though retroactive application would be entirely constitutional: But while the constitutionalimpediments to retroactive civil legislation are now modest, prospectivity remains the appropriate default rule. Because it accords with widely held intuitions about how statutes ordinarily operate, a presumption against retroactivity will generally coincide with legislative and public expectations. Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price *273 to pay for the countervailing benefits. Landgraf, 511 U.S. at 272-73 (emphasis in original; bold added). '! This view was echoed by no less a jurist than Judge Calabresi, who opined that “[Landgraf’s]| anti-retroactivity presumption is triggered by statutes whose retroactive application, while not the equivalent of criminal ex post facto, nevertheless would "! Landgraf cannot be distinguished in this regard simply because it was a civil case. Non-criminal statutes, like criminal statutes, can be unconstitutionally retroactive (i.e. under the Takings or Due Process Clauses), but the constitutional standard is different from the Landgraf test. See E. Enterprises v. Apfel, 524 U.S. 498 (1998). Conversely, some criminal statutes are presumed not to apply retroactively even though doing so would be perfectly constitutional. 60 DOJ-OGR-00021122