Presumption that Greater power Includes Lesser Power- US Courts

The principle that the grant of a greater power includes the grant of a lesser power is a bit of common sense that has been recognized in virtually every legal code from time immemorial. It has found modern expression primarily in the realm of constitutional law. See, e.g., City of Lakewood v. Plain Dealer Publishing Co., [1988] USSC 123; 486 U.S. 750, 763[1988] USSC 123; , 108 S.Ct. 2138, 2147[1988] USSC 123; , 100 L.Ed.2d 771 (1988) (commenting that the power to prohibit speech entirely includes the lesser power to license it at the government's discretion); Posadas de Puerto Rico Assocs. v. Tourism Co., [1986] USSC 169; 478 U.S. 328, 345[1986] USSC 169; , 106 S.Ct. 2968, 2979[1986] USSC 169; , 92 L.Ed.2d 266 (1986) (holding that the power to ban casino gambling includes the lesser power to prohibit advertising of casino gambling).

While this principle has nested less frequently in the criminal law context, it is fully applicable in that milieu. To illustrate, we use an example that bears a strong family resemblance to the problem at hand. The federal sentencing guidelines originally stated that "an extraordinary physical impairment may be a reason to impose a sentence other than imprisonment." U.S.S.G. Sec. 5H1.4, p.s. (Nov. 1990). Three courts of appeals, including this one, refused to understand this provision to require an all-or-nothing choice between imposing an incarcerative sentence within the guideline range or imposing no prison sentence. The courts reasoned that, despite the unvarnished language of the provision, the greater departure (no incarceration) necessarily included the lesser departure (a prison sentence below the bottom of the guideline sentencing range). See United States v. Slater, [1992] USCA10 876; 971 F.2d 626, 635 (10th Cir.1992); United States v. Hilton, [1991] USCA1 494; 946 F.2d 955, 958 (1st Cir.1991); United States v. Ghannam, [1990] USCA4 614; 899 F.2d 327, 329 (4th Cir.1990)