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 nittygritty. 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.I remember the time a colleague of mine yelled at me for saying exactly that. She was working on a complicated project dealing with how courts should sort out the details in for Congresses that indulge themselves with fuzziness.
June 9, 2011
When the Supreme Court indulges Congress's indulgence in fuzziness.
SCOTUSblog says the Scalia dissent in Sykes v. United States is "awesome." Justice Scalia writes:
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57 comments:
This is a man who actually gives a damn about people, as opposed to the Leftists, who seem to be more in favor of the idea of "the people", rather than the actual human beings.
They can simplify most criminal prosecutions. Just charge their target with "Conduct Unbecoming A Person". They already are close to that trick by seeking convictions not for committing crimes but for lying when the defendant denies committing the crime.
not have the time (or perhaps the votes) to grapple with the nittygritty
Very generous of Scalia to omit the possibility that they don't have the brains to grapple with the nittygritty.
I would be very happy to see many laws struck down for vagueness. A precise bad law bothers me less than a vague possibly-good law, because at least I know when I'm complying with the bad law (or not).
The Court can render the nation a great service in addition to upholding the constitution by knocking down poorly written and vague laws. If congress has the time to wank their weiners they have the time to properly craft legislation.
Sames goes for how congress is passing sweeping civil legislation - leave gigantic empty boxes for the administration to fill with detail later.
Yet this kind of behavior regariding civil law, and what Scalia is criticizing in criminal law, constitute a huge power give-away by congress.
Which begs the question of why a branch of government is so ready to give its power to the other two branches.
And the only answer I can think of is that the personal perks, privileges, and benefits of being in congress far outweigh their collective losses from ceding institutional power.
This is a general truth.
Congress just keeps piling on laws and the agencies keep issuing regulations interpreting and implementing them in light of the pressing issues of the day, and none of it is ever repealed.
50 years ago I was told by an old Government hand that for every Federal law, rule, or regulation there was stating for me to do something in a certain case of circumstances, there would be at least two other laws, rules, or regulations requiring me to do something entirely different under the same circumstances, so I should read them all, and I would be able to pick and choose whichever would best suit me and my interests in the case.
When the Supreme Court indulges Congress's indulgence in fuzziness.
It will be some congressman's indulgence in furries that will be the next big scandal.
This will no longer be a problem because the new Congress is going to identify the constitutional basis for it's legislation./sarcasm
That is awesome.
Lets not let the lawyers and courts off the hook for this situation. By saying all laws are subject to leisurely judicial review - with no advice or approval proffered beforehand about how mighty lawyers dressed in robes may "rule" - you absolutely encourage fuzziness. Why create great detail when 5 years later some court review is finally done and one section is negated? Which due to level of detail and interlocking actions, forces the whole law and thousands of man-hours used to fully develop it's detail to be trashed and go back to the drawing board.
On the other hand, you can create enormously detailed project management plans for engineering and construction, tremendously detailed military plans, business plans - because none of that is "on hold" with an independent party (general, CEO, bank funding the Project) on the horizon that can say 5-10 years out the whole thing or a cornerstone the whole thing rests on must be tossed.
Actually, projects&business plans&military contingencies to have a "fuzzy" period as proposals are made seeking buy-in over a reasonably short time period.
Fuzzy laws? Blame the American legal system, not the crafters of laws burned too many times by leisurely judicial review.
All you indignant Obama supporters remember to repeat that there is NO mention of a "Death Panel" in Obamacare. Only an ignorant Alaskan quitter could be so stupid as to see a Death Panel in the Fuzzy wording of that Bill.
Congresspeople want the credit but not the responsibility. I think this is most apparent in regulations. They hide behind the vagness. It's contemptable.
I dunno. Look at what drives some litigation. Take the US patent laws for example. It's more common for someone to sue, relying on interpretation of the more succinct 35 U.S.C. §102(a) or (b) than the wordier 35 U.S.C. §102(e) or (g) (which express more nuanced law). There are many other factors, but brief concise language is sometimes open to more interpretation.
Every new law limits someone's freedom, and pretty soon there wil be no freedom left. I propose that for each new law passed, one is removed from the books.
@Original Mike
"Congresspeople want the credit but not the responsibility. I think this is most apparent in regulations. They hide behind the vagness. It's contemptable."
Yes! Yes! Yes!
"Government is like a baby. An alimentary canal with a big appetite at one end and no sense of responsibility at the other." - Ronald Reagan
cubanbob said...
The Court can render the nation a great service in addition to upholding the constitution by knocking down poorly written and vague laws. If congress has the time to wank their weiners they have the time to properly craft legislation.
==================
NO, the Courts can render a great service if they would advise legislators during the law-crafting process what things they might have a real problem with on review..what would probably not trigger any review. And for those things the legislators insist on that will trigger a review - the courts are put under a deadline to have the reviews done by.
It is beyond stupid for America to settle on a system where the Individual Mandate on health care "might" be unconstitutional - but it will take lawyers in robes 5-10 years to take their sweet time in deciding.
Other nations get through this in a far quicker, more nimble, and COMPETITIVE fashion.
How can you not love the mind of Scalia.
I would have liked for him to address the fact that courts take these vague laws and usually expand them, as opposed to contract them.
Laws built on case law after case law after case law perverts the original law to the point it is no longer recognizable.
Yea, I'm talking about the Constitution.
Fubar.
Laws built on case law after case law after case law perverts the original law to the point it is no longer recognizable.
What's the alternative?
"All you indignant Obama supporters remember to repeat that there is NO mention of a "Death Panel" in Obamacare. Only an ignorant Alaskan quitter could be so stupid as to see a Death Panel in the Fuzzy wording of that Bill."
The Death Panel provision is right below the clearly worded provision authorizing HHS to issue ObamaCare waivers...
In so many words, Scalia seems to be saying that justice is now firmly beyond the reach of the average individual. That every act of an indifferent congress serves to entrap and ensnare those who seek only to conduct their affairs and business in a manner heretofore considered beneficial to all.
And that this great celebration of lawlessness culminated in KELO v. NEW LONDON.
Triangle Man, I thought the same thing. Very generous indeed.
Trey
I think the President and Congress are also looking for legislation by agency. Can't pass cap and trade on a vote? Put it in an EPA regulation. Nobody votes for them, you can pass lots of stuff that way!
Completely unconstitutional of course. Just like the tzars. FDRs original name for the tsars was dictators. No joke.
Trey
We live under a government not of laws, but of men.
"What's the alternative?"
Originalism.
Trey
Scott M said...
What's the alternative?
Good question.
Damn good question.
The supreme-o's became a joke about two decades ago. You saw the most fowl people reaching top slots.
Sure, I'll throw in Warren for good measure. But when the courts were ALL MALE, and ALL WHITE, we had better laws written. The skirmishes over philosophy were carved in stone.
Heck, you can go back to Lochner now, and see the date. 9005.
Sandra Day O'Connor was a hoot. She totally went around Rehnquist. If it was poker, he had no cards left to play.
While O'Connor dragged along the 5th vote like a baby's blanket. Give her the opinion to write ... and she could be bought.
That's prostitution. And, it's a good place to rummage around in, to see how "fuzzy" politics makes judges behave.
Who else brought you "forks" and plastic reindeer? How can you teach this stuff without causing laughter and havoc to break out among the students?
Of course, make the language difficult. Make it hard to see Jesus when you drag in plastic reindeer. And, you've set the stage for the creeps you've got up there, now. (Save a minority.)
The bar got lowered even before kagan and Sotomayor joined the circus.
Doesn't mean some decisions don't get written the old-fashioned-way. Like when the 9th just slapped down California for evading the 6th.
Or when the Kitsmiller decision in Pennsylvania came out: SPOT ON.
Neither party wants to fix this!
Can an Independent candidate win in 2012? All of DC is so toxic, now, it's hard to see how anything can really be fixed.
What if it's just a bubble?
Well, when the pin goes in there's gonna be so much splatter. Who, then, can fix anything?
So far you can say we're in the 21st Century. But only if we're in reverse ... is there hope.
I have experience with government controled healthcare here in Tennessee in the form of TennCare, our Medicare. I don't take any new patients with the insurance, but I did for 20 years. Decisions concerning kids who needed treatment were routinely made on the basis of costs.
I attended a few appeals where the govment brought in some poor guy from another state who had never met the kid to say he did not need the treatment. Now I am frankly OK with someone saying "We cannot afford this treatment." But that was never said, though always true. The lie would be "This child does not require this treatment."
Obamacare will operate under the same principle. And costs have to be part of the equation, I have no problem with that. It is the lying I abhor.
Trey
"What's the alternative?"
Originalism.
Trey
***********
Agreed.
But, how to get there makes my head explode.
It is my view that the Warren Court was this country's undoing.
Hmmmm
Why would a Democratic party controlled congress leave fuzzy laws to be clarified by a right of center SCOTUS.
Or maybe both parties do it out of laziness.
Good thing we have a President who taught constitutional law. He'll show them how to do it!
"This is a man who actually gives a damn about people, as opposed to blah de blah de blah...."
This is the man who told Leslie Stahl on 60 MINUTES that the constitional prohibition against "cruel and unusual punishment" does not apply to those in state custody who are awaiting trial and have not yet been convicted, on the spurious line that no treatment meted out can be considered "punishment" if it is not a sentence handed down in response to a conviction.
In short, suspects in custody, "innocent until proven guilty", may be subject to whatever harsh treatment their custodians may inflict, and they have no constitutional protection against it.
What a putz.
"What's the alternative?"
Originalism.
Trey
That hasn't worked out so well for the 2nd Amendment has it? I'm a fervent support that it means an individual's right to carry, and I do legally here in Missouri. But it's constantly under assault, is it not?
@Carol
Paragraphs want to be your friend.
This is the man who told Leslie Stahl on 60 MINUTES that the constitional prohibition against "cruel and unusual punishment" does not apply to those in state custody who are awaiting trial and have not yet been convicted, on the spurious line that no treatment meted out can be considered "punishment" if it is not a sentence handed down in response to a conviction.
The "putz" is correct.
Browndog said:
"The 'putz' is correct."
I'm glad you agree with me that Scalia is a putz.
"I have experience with government controled healthcare here in Tennessee in the form of TennCare, our Medicare. I don't take any new patients with the insurance, but I did for 20 years. Decisions concerning kids who needed treatment were routinely made on the basis of costs.
"I attended a few appeals where the govment brought in some poor guy from another state who had never met the kid to say he did not need the treatment. Now I am frankly OK with someone saying "We cannot afford this treatment." But that was never said, though always true. The lie would be "This child does not require this treatment."
"Obamacare will operate under the same principle. And costs have to be part of the equation, I have no problem with that. It is the lying I abhor."
How is this any different than the practices of insurance companies who deny payment of treatments on similar bases and with similar excuses, or who rescind policies entirely of their paying customers when those customers need to use the coverage, on the basis that their customers "deceived" them by failing to note a hangnail or headcold in their health history?
How is this any different than the practices of insurance companies who deny payment of treatments on similar bases and with similar excuses,
If your present insurance company is denying too much, you can always switch.
Trying switching a federal government.
"Trying switching a federal government."
Or suing one.
"They hide behind the vagness. It's contemptable."
I first read this as 'their vagina's'. Which, in respect to Congress for the past several or more decades seems somehow appropriate.
Oh, to head off the PC police, I don't mean the above in a misogynistic manner. Also, I have no idea why I saw the above as such, perhaps just my brain attempting to purge itself of wieners.
"I propose that for each new law passed, one is removed from the books."
Two would be better.
edutcher said...
This is a man who actually gives a damn about people, as opposed to the Leftists, who seem to be more in favor of the idea of "the people", rather than the actual human beings.
Well, in leftard-speak, 'the people' are nothing but this large body of nebulous vagueries that are supposed to instill the truth to their power. They fail at it all the time.
I can't spell.
Will Althou.se have a spell checker?
Will Althou.se have a spell checker?
Yes, but only up to level 20 and only elemental ones.
All Scalia has done is highlight what the dirty workings of congress have been for so long. Pile on law to the point of uselessness and watch a nation crumble underneath its weight. You don't think that's not happening now?
"I remember the time a colleague of mine yelled at me for saying exactly that."
Yelled? What the heck? Does that colleague have problems with respectful interpersonal communications or something?
This is not some arcane judicial spat.
The federal prosecutorial power is immense, and is immensely abused by zealous career building government attorneys. When the feds come after you, you are screwed, guilty or not, because defending will bankrupt all but the very wealthy and destroy your reputation. Vague criminal laws increase the already abused power of ambitious or ideologically driven prosecutors.
The federal government has a vast array of eager lawyers looking for citizens to prosecute and sue in order to advance their own reputations, credentials and careers. It's a far greater threat to personal freedom than stuff like internet privacy.
Hope you didn't take offense, Original Mike. It certainly wasn't my intent. I don't care about spelling, I'm horrible at it myself.
wv - defecate
Jesus, if it ain't wieners it's shit.
"If your present insurance company is denying too much, you can always switch.
"Trying switching a federal government."
If your present insurance company is denying too much, what guarantee have you that another will be better or cover more, or will be affordable, or will even accept you as a customer? After all, if you've ever been sick, you have insurance-precluding pre-existing conditions.
Whereas, we do change our federal government...ever few years. Theoretically, we still live in a representative republic, and unless we're all ready to admit or accept that this is no longer so, and that we live, in fact, in a de facto dictatorship, there's no reason to think a united electorate cannot influence the government's actions.
After all, the Republicans' attempts to kill Social Security and Medicare are not faring well in the forum of public opinion, and will likely be scuttled...at least until a later day when killing these services will be tried again.
No offense taken, Luther.
I usually look up words I know I'm misspelling. I was just lazy this time.
"After all, the Republicans' attempts to kill Social Security and Medicare ..."
Unlike a lot of leftys here, Robert, you seem to be sincere. You should be aware that when you mischaracterize policy disagreements like this, you lose credibility.
Or maybe I'm wrong about your sincerity.
Original Mike. If you're using Internet Explorer this is a great little spell check program, I've been using it for years. Just highlight the text, and right click. You can also copy the highlighted text before hitting submit in case blogger screws up. It has other nice features, too.
http://iespell.com/
.
ScottM at 12:50: Thanks for that.
Congress should take a few years off. The US would be a better place.
@April
No budget since 2009. They're taking something off.
Combining this with his concurrence in Talk America, Scalia seems to be at war with legislative ambiguity today.
This thread is dead, but what Original Mike said
"Two would be better."
IS actually better. It's time to get down to basics.
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