How about a void-for-vagueness doctrine for the U.S. Congress?
Just when you’re thinking all hope is lost, along comes the “void-for-vagueness doctrine,” invoked this past week by the Supreme Court to restrict a hopelessly vague law. If our era needs a bumper sticker, this is it: Void for Vagueness. Paste it on the 2,000-plus pages of the new ObamaCare law, paste it on the 2,000 pages of the floundering financial regulation bill. Hand it out in front of Elena Kagan’s confirmation hearings. Heck, chisel it on the facade of the U.S. Capitol. But my enthusiasm is racing ahead of the story.
In 2006, the most hated man in America was probably Jeff Skilling, who once sat atop Enron, perhaps the most hated corporate name in all American history. This heap of unpopularity notwithstanding, the Supreme Court said last week the government wrongly prosecuted the abominated Jeff Skilling under something called the “honest services fraud” law. The Court ruled—unanimously—that the law was, in a word, too “vague.”
Here is the classic description of the void-for-vagueness doctrine from Justice George Sutherland in 1926: “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning . . . violates the first essential of due process of law.”
That any such common-sense rule still exists in law, politics or life is a wonder.
Strictly, the vagueness test applies only to penal law, but in a better world would it not also apply to much else in public life? The world was simpler in 1926.
Our Congress, the one with a current approval rating of 22%, is attempting to enact its hapless answer to the financial crisis—now called, with no hint of irony, the Dodd-Frank bill. It spent the previous 12 months concocting the Obama health-care law. The actual language of the several thousand-page financial regulation bill was made available to the American people for the first time one evening this week.
Texas Rep. Jeb Hensarling, in a comment on the legislation that should go straight into Bartlett’s Familiar Quotations, said, “There are probably three unintended consequences on every single page of this bill.”
Justice Antonin Scalia wrote a separate concurrence on the Skilling decision. Consider his remarks in the context of Congress’s modern legislative enactments, such as Sarbanes-Oxley, which technically are beyond reach of the void-for-vagueness doctrine.
He referred to the honest-services law, enacted by Congress in 1988, as “this indeterminacy.” He calls the legal duties required of individuals under it “hopelessly undefined,” a “smorgasbord” written in “astoundingly broad language” and “to put it mildly, unclear.” His most stupendous example was a court ruling that one could be found in violation for a scheme “contrary to public policy.”
In too many areas where the daily life of commerce intersects with public policy, people feel they are flying blind, uncertain of what a law or regulation requires, uncertain of how the bureaucracies empowered to enforce this morass will interpret them.
One sensed it was heading this way when landowners were prosecuted under the Endangered Species Act for violating the “habitat” of odd creatures found on their property.
This derangement of the laws’ meaning is among the reasons the public is so out of sorts about politics and Congress. They think compliance with the rules is turning into a crap shoot. They are right. Here is Justice Scalia on what happened to the law’s meaning in the Skilling case: “The duty probably did not have to be rooted in state law, but maybe it did. It might have been more demanding in the case of public officials, but perhaps not.” Truly, we are in Wonder Land.
It is an irony, though, that the Supreme Court that can unanimously find in favor of a Jeff Skilling under the void-for-vagueness doctrine is the same court that shows nearly infinite deference to federal administrative bureaucracies that strain to interpret the sloppy legislative language Congress enacts into law.
We are there again. The Dodd-Frank bill, if enabled into law by several Republican Senators, lets the actual meaning of the “Volcker Rule” on banks’ trading practices and much else pass into the hands of the translators at the Federal Reserve, FDIC, other federal agencies and the lobbyists who swarm around them.
It is not an accident that American public policy and law have fallen so far into a condition of unfathomable murk. As with the prosecutors who abused the honest-services statute, opaqueness of the sort Messrs. Dodd, Frank and the president favor shifts the locus of power away from all citizens and toward an administrative minority that reduces the nation’s civil life to a costly game of Mother-may-I?
If only on principle, someone from the GOP in Congress should start demanding that all federal legislation pass through a void-for-vagueness test. This session, none would survive. If the Supreme Court can demand clarity on behalf of convicted felons, how about adopting it on behalf of everyone else, who until their luck runs out, remain innocent?
Daniel Henninger, Wall Street Journal
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Full article and photo: http://online.wsj.com/article/SB10001424052748703426004575338903466619736.html
