Justice Scalia on The Lazy Congress and Vague Laws
Someone figured it out – we have 35 million laws trying to enforce the 10 Commandments.
– Earl Wilson
Vague laws are bad laws. People have to know what a law is to know how to behave so as not to break it. Unfortunately, laws today are so sloppily written that many people truly don’t know if they’ve run afoul of the law until after a judge or jury decides that they have.
Justice Antonin Scalia in a dissent in Sykes v US this month chastised Congress for writing vague laws, which in turn generates the very cases that he has to decide.
Scalia of course is a national treasure as an opinion writer. His clarity of thought and knowledge of the law blend perfectly with his ability to teach and oft times entertain in his writing. I suffer the same insecurity in calling myself a legal writer after reading a Scalia opinion as I do calling myself a guitar player after listening to a Tommy Emmanuel piece. There are those of us who do and those of us who do best.
The Sykes case involves a federal sentencing law called the Armed Career Criminal Act (ACCA). To simplify – if a defendant has committed 3 prior “violent felonies” he can be sentenced to far more time in jail - 15 years to life.
Sykes was previously convicted of fleeing police in an automobile. The Court decided that fit within the “violent felonies” listed in the statute, even though the statute makes no reference to fleeing.
Scalia dissented because the law is so vague that Sykes had no real notice that under ACCA his prior behavior would be construed later by the Supreme Court as fitting within the statute, when the statute didn’t expressly say so.
What really drew Scalia’s wrath was that this is the 4th time in 4 years the Supreme Court has been asked to decide if a certain behavior is covered by ACCA or not. Scalia suggests that the amount of cases the law has generated to determine what it covers is enough by itself to find the law unconstitutionally vague.
Below are some wonderful quotes from Scalia’s dissent which drive home his points perfectly.
In his opening, I love the Justice’s snark and rebuke of the system:
As the Court's opinion acknowledges, this case is “another in a series.” More specifically, it is an attempt to clarify, for the fourth time since 2007, what distinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), from other crimes. We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.
Scalia sets up the problem vagueness presents for the defendant:
Vagueness, of course, must be measured ex ante—before the Court gives definitive meaning to a statutory provision, not after. Nothing is vague once the Court decrees precisely what it means. And is it seriously to be expected that the average citizen would be familiar with the sundry statistical studies showing (if they are to be believed) that this-or-that crime is more likely to lead to physical injury than what sundry statistical studies (if they are to be believed) show to be the case for burglary, arson, extortion, or use of explosives? To ask the question is to answer it.
Scalia on the role of the Court and statutory interpretation:
It is not the job of this Court to impose a clarity which the text itself does not honestly contain. And even if that were our job, the further reality is that we have by now demonstrated our inability to accomplish the task.
And on the insincerity of the Court in its own failure:
…repetition of constitutional error does not produce constitutional truth.
Finally, Scalia takes Congress to task for their imprecise legislating, and his colleagues on the Court for allowing it:
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.
Hear Hear, Justice.
In the past I’ve tried, though not as eloquently as Scalia, to write about vagueness in laws.
Many of you may recall the Ricci case, wherein then Supreme Court nominee Sonia Sotomayor was accused of a reverse racism when she ruled as a lower court judge that it was not improper for a town to refuse to promote 17 white fireman who passed an exam, because zero black firemen passed the test, which could mean the test wasn't fair.
I was pleased to get praise from both sides of the isle when I wrote a piece for Fox arguing that there were no racists in the Ricci case, only a very bad law that causes towns to pick which color person will sue them. Please take a read, put yourself in the place of a local Mayor, and let me know if you agree that race wasn’t the problem in that case, a vague law was (leave at the door your thoughts on Sotomayor’s wise Latina comment – it was a separate issue and I didn’t give her a pass on racism for that one).
One more - I also thought that President Bush got a bad rap on waterboarding, because I felt that he was trying to take vagueness out of the laws about what is or isn’t torture. I wrote about it here.
I’d love to know if Professor Yoo agrees with my analysis and conclusion.
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Comments :
Sep '10
Re: Justice Scalia on The Lazy Congress and Vague Laws
All I could think of reading this is, that if this is level of vagueness is a problem for criminals what should we think of Dodd Frank or the Health Care legislation that leaves all sorts of power to regulators and thereby to large corporations who can trade regulatory burden for barriers to competition. James Madison could not have imagined this but I'm pretty sure he would not approve.
Mar '11
Re: Justice Scalia on The Lazy Congress and Vague Laws
I concur. Though not a lawyer, I'm a big fan of Scalia and his crafting of SCOTUS opinions.
May '10
Re: Justice Scalia on The Lazy Congress and Vague Laws
We can simply adopt the Soviet's Criminal Code of 1926 (Solzhenitsyn, The Gulag Archipelago) especially Article 58. Then, vague laws would cease to be a problem for the courts and be an enormous advantage to the State.
That wouldn't happen here, though... oh, wait.
Dec '10
Re: Justice Scalia on The Lazy Congress and Vague Laws
I agree with Scalia that with volume of laws comes a decrease in clarity. Foxnews had an opinion piece on it a couple of years ago that I've (not surprisingly) been able to reference several times when discussing how ridiculously overbearing the federal government has become. Thanks for the link to Emmanual, too. I'll go home and put all my instruments in the trash now.
Mar '11
Re: Justice Scalia on The Lazy Congress and Vague Laws
Vague criminal laws are evil because they put the citizen in an impossible position. You are held to the standard suggested by 'Ignorance of the law does not excuse', yet cannot dispel your ignorance. Presumably you are therefore expected to do nothing which might, conceivably, be able to be held to be in violation of some law or another. In other words, you should never do anything.
Any subsequent clarification of vagueness by a court is always, in effect, retroactive legislation. Yet another evil.
Apr '11
Re: Justice Scalia on The Lazy Congress and Vague Laws
It's amazing, when you think about it, that we give Congress the power to make laws, and it has no interest in the job. It passes vague laws and lets the courts figure out what the law really means. And the rest of the time it is more than happy to delegate its responsibilities to unelected administrative agencies or the president.
Other than spending money on pet projects and the occasional vote on hot button issues to stir up the respective bases, I suspect that Congress doesn't want to be bothered with legislating.
While I'm not sympathetic to presidents or courts exercising more power than they are entitled to, I can't shed any tears for a Congress that won't stand up for its own prerogatives.