Monday, November 19, 2018

by Curtis Herbert

Twice in the past three years, the Supreme Court has prevented the enforcement of a law under the Due Process Clause because it was unconstitutionally vague. This happened most recently in Sessions v. Dimaya, which concerned a statutory provision allowing deportation of individuals convicted of a “violent crime.” Recognizing that the law “produces more unpredictability and arbitrariness than the Due Process Clause tolerates,” the plurality determined that the law could not stand due to its vagueness.

Justice Gorsuch wrote separately to provide an originalist rationale for the Court’s decision and to encourage the Court to apply the void for vagueness doctrine to a wider variety of civil cases. He cited English common law authorities such as Coke and Blackstone, as well as a smattering of early Supreme Court precedent and constitutional structure. He also raised separation of powers concerns, though for the time being I will restrain myself to the due process concerns.

In the most recent edition of the Harvard Law Review, there is a piece expressing some dissatisfaction with the holding in Dimaya. The authors contend that, “Perhaps what is most important about Dimaya is what it did not do: it failed to give future courts binding precedent about how the vagueness doctrine should be extended (or not) going forward.”

Because the ruling was inconclusive – there was only a plurality, not a majority – the future of the vagueness doctrine is, in a twist of irony, vague and uncertain. The authors suggest that, “Ad hoc extension of vagueness doctrine could create arbitrary and unpredictable outcomes in individual cases – exactly what the doctrine is trying to prevent.” To me, this screams one thing: a multi-factor test. Today I have created such a test, derived from our founding principles.

The first step is to discern the original requirements of the Due Process clause. This begins with acknowledging, as Justice Gorsuch puts it, that “today’s vagueness doctrine owes much to the guarantee of fair notice embodied in the Due Process Clause.” I think this is the best way of looking at vagueness: as an extension of the logic espoused in what he calls “perhaps the most basic of due process’s customary protections,” which has also been described in the Harvard Law Review as essential to our modern justice system.

The same HLR piece explains that, “The American Founders and the Enlightenment thinkers who influenced them viewed fair notice as a requirement for fairness, legitimacy, and social utility.” Vagueness is an offshoot of fair notice, as both rest on the fundamental principle that laws must be accessible to those who are expected to abide by them. To that end, the piece continues, “Modern conceptions of fair notice have also recognized that clarity is necessary for citizens to appraise themselves of the promulgated law.”  Fair notice dictates not only that the law be accessible, but intelligible.

This principle is further illustrated in the ex post facto clause of Article One. Because “fair notice was important enough to be enshrined in the Constitution for at least one type of situation… the concept should be respected — albeit in a less absolute sense — in other contexts as well.” The clause helps to prove that the Framers cared deeply about laws being accessible to the populace, a notion that was enshrined in the ex post facto Clause as an absolute prohibition on any and all ex post facto laws. (Ex post facto laws are made after the fact and apply retroactively, meaning that a person can be imprisoned for an act that was still legal when they committed it.) While I do not advocate for a test that would any purge any and all vague laws, I do believe it is necessary to understand how central the role of fair notice (and with it, prohibitions on vagueness) is to the Constitution.

Justice Gorsuch notes some further evidence that clear laws are a constitutional mandate, pointing out that vague laws interfere with other provisions of the Constitution, rendering constitutional protections effectively useless. Being informed of the crimes for which you have been arrested is no comfort if the statute is so vague as to be meaningless. Likewise, a protection from warrantless searches and seizures is worthless if the police can get a warrant for anything under a number of vague and undefined laws. Many other guarantees of the Constitution – free speech, free exercise, and Fourteenth Amendment – are also tainted by the existence of unclear laws. Only a small minority of people have access to high-powered lawyers, funds, and the time to invest in litigation. Faced with the prospect of being jailed on some obscure, garbled charge, many people will simply choose not to exercise their rights. This is a position endorsed by precedent; the Court has long recognized the unconstitutionality of overly broad laws that have a chilling effect on speech.

We can also look to the “customary procedures to which freemen were entitled to by the old law of England” (Pacific Mut. Life Ins. Co. v. Haslip) to discern what the Due Process Clause protects. I direct the reader to Justice Gorsuch’s concurrence for a brief history of the common law roots of the void for vagueness doctrine, and to the HLR note for a history of fair notice. Having examined what the Due Process demands, I will now set forth a test for determining when a law is unconstitutionally vague.

1: As the severity of the penalty increases, so does the constitutional mandate of clarity. For that reason, laws that impose severe penalties, threatening to place or placing a person in jeopardy of life, limb, or livelihood, will be more closely examined for vagueness than laws which impose a lesser burden on the defendant.

2: Ambiguity, however, is not to be stamped out in all forms. Lawyers and judges may disagree on a law, but when it is so vague that it requires speculation on the judiciary’s part, declines to set forth an intelligible standard, and is so vague as to prevent a reasonable person from fulfilling her obligation to be informed of the laws, it cannot stand and is void for vagueness.

3: If a statute is unclear, courts can instead examine for vagueness the interpretation or definition of an agency which has lawfully been given the authority to define the statute and issue binding regulations. (Assuming that Chevron remains good law.) But courts cannot substitute an agency’s judgment regarding a similar statute, nor can they uphold a vague and indeterminate agency interpretation or regulation.

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