In two opinions today, Justice Scalia wrote separately to consider issues of vagueness.
In Skyes v. United States, he was willing to find a provision of the Armed Career Criminal Act void for vagueness.
We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.
As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. [Four generations is enough?] We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness.
Specifically, he chastised the Court for upholding vague laws. This approach creates a negative feedback loop that occurs when the Court’s “indulgence of imprecisions that violate the Constitution encourages imprecisions [by Congress] that violate the Constitution.”
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.
In Talk America, Inc. v. Michigan Bell Telephone Co. Justice Scalia wrote about the interplay between Congress and the Executive branch with respect to vagueness.
Deferring to an agency’s interpretation of a statute doesnot encourage Congress, out of a desire to expand itspower, to enact vague statutes; the vagueness effectivelycedes power to the Executive. By contrast, deferring to an agency’s interpretation of its own rule encourages theagency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government. The seeming inappropriateness of Auer deference is especially evident in cases such as these, involving an agency that has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends.
When Courts uphold statutes that are vague, it creates a perverse incentive for both the Legislative and Executive branches to create laws that are even more vague that permit further discretion and arbitrariness–principles antagonistic to the rule of law. Specifically, it permits the other branches to avoid dealing with actual problems in the actual law–which may come with electoral consequences–and just kick the can down the road, and let government lawyers take a different position in Court to yield a favorable construction late. The same could be said of legislative history. When Courts defer to stuff in legislative history that was not important enough to make it into the statute, the Courts create a deference that ignores the supremacy of the act, and the resultant consequences of elections. I address these points in my article. This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose, 20 Geo. Mason U. Civ. Rts. L.J. 351 (2010). SSRN
This negative feedback loop occurs with added deference to the other branches.
Update: I quote from my article on Lemon:
By focusing solely on the statutory text and not looking to unreliableextrinsic resources like legislative history, the Court would yieldresults more consistent with what the legislature meant. Furthermore,it would decrease the incentive for savvy politicians to infect the legislativerecord with various statements that had little bearing on theactual legislative process, with the intent to influence the courts. Froma policy perspective, the Court should not create a perverse incentivefor crafty politicians to hide illicit purposes by tinkering with the legislative history. The Supreme Court has held that “deference to thesupremacy of the Legislature, as well as recognition that Congressmentypically vote on the language of a bill, generally requires us to assumethat ‘the legislative purpose is expressed by the ordinary meaning ofthe words used.’”306 The Court would be well-served to apply thisprinciple to its Establishment Clause jurisprudence.
In addition, focusing on the text will place the onus on the legislativebranch to draft a statute that is clear. The statute should encapsulateany purposes the legislature sees fit. This would prevent thecourts from needing to divine a purpose ex post.307 Clearly, draftedstatutes help increase society’s justified reliance interest in obeyingthe law and decreases confusion and uncertainty that occur in thelegal process. And if the legislatures know that the courts will lookonly to the text, they can be more certain that the meaning they giveto a law will be faithfully applied. Under the current regime, legislature sare left in the dark as to how their actions will be later judged.This creates uncertainty and confusion and is detrimental to the democratic process.
To understand purpose by focusing solely on the statutory textwould involve a complicated textualist analysis. Often, the merewords of a statute cannot capture the volume of thought that goes intothe process of passing a bill. Nevertheless, this approach would besubstantially more accurate and reliable than fishing for friends in thecrowd of the legislative record, as illustrated by the Supreme Court’sdisparate ad hoc approach.308 Additionally, unlike legislative history, concerning which it ishighly unlikely that many legislators would read a committee report,the enacted statute itself has the backing of a majority vote and theforce of a valid law. Given that the statute was duly enacted, it isinherently more reliable than committee reports, which are not subjectto the deliberative process. In the federal context, that a bill was passed via Article 1, Section 7,309 gives the statute the force of law, andthe Court can rely on any purpose discernible from the text.Although finding purpose is an inherently unreliable form of statutoryinterpretation and opens the door to subjectivity, confining a court’ssearch to the text cabins the power of judges to import their personalbeliefs
In several cases, including Jaffree and Santa Fe, the Court haslooked to the text to derive purpose for the purpose prong.310 I wouldcounsel the courts to use this approach consistently and exclusively.Furthermore, focusing on the text and rejecting legislative history toderive purpose would have many salutary policy effects. The use of the Supreme Court’s relying on legislative history, which began withHoly Trinity, has “stimulated a cottage industry of junior associates,law clerks, and lobbyists whose main job is to find or plant smokingguns in the legislative history.”311 This enables inefficient rent seeking,which seeks to aggrandize certain factions at the cost of the generalpopulace. By ignoring the legislative history in this slim context,this cottage industry could be scaled back. Finally, if the Courtstopped relying on legislative history, it could break the “potato chip”cycle,312 “everyone [would] save a lot of time and money,” and “congressionaldeliberations could return to normal, unaffected by strategicplants of smoking guns that lobbyists hope to use in laterinterpretive battles.”313.