Why the Supreme Court Should DIG Ellingburg v. U.S. Next Week

Whoops! What happens if the Supreme Court grants certiorari to review a question presented about a particular statute—but the case does not involve that statute?! That's the situation in Ellingburg v. United States, a case that will be argued next week (Tuesday, October 14). The Court granted review of the question presented "[w]hether criminal restitution under the Mandatory Victims Restitution Act (MVRA) is penal for purposes of the Ex Post Facto Clause." But closely analyzing the proceedings below reveals that the petitioner/defendant was actually ordered to pay restitution not under that mandatory statute but under the discretionary regime of the Victim Witness Protection Act (VWPA). Accordingly, the Court should resolve the case by dismissing it as improvidently granted—or, colloquial