Regulation

How Vague Laws Expand Government Power

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Writing at Forbes, Pacific Legal Foundation attorney Timothy Sandefur argues that the so-called honest services law, which makes it a crime to "deprive another of the intangible right of honest services," should be struck down by the Supreme Court for being overly broad and open to widespread government abuse:

The case—one of three now before the Court involving this statute—arose from the prosecution of Enron CEO Jeffrey Skilling, who was convicted in 2006 of several charges stemming from that company's scandalous collapse. He and his company may indeed have defrauded people, but the question here isn't whether Enron broke the law, it's what actions will federal prosecutors target next? Or are there boundaries to protect innocent citizens from being branded criminals?

The statute's elastic language makes this a real threat. Last year Justice Antonin Scalia pointed out that if taken literally the honest services law would make it a crime to call in sick to work and go to a ball game instead. Other federal courts have tried to improvise: In 2003 a team of seven judges wrote a long decision patching together a complicated test for determining whether a person is in violation. But six judges on that same court dissented. How can average Americans be expected to understand the law if even federal appellate judges are divided on its meaning?…

Combine vagueness with the ever expanding number of statutes and regulations affecting businesses and entrepreneurs on a daily basis and the result is a government bureaucracy with almost unlimited power to intimidate and blackmail citizens with the threat of prosecution—or to punish practically any conduct they choose to declare "illegal."

Read the whole thing here.

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  1. government bureaucracy with almost unlimited power to intimidate and blackmail citizens with the threat of prosecution?or to punish practically any conduct they choose to declare “illegal.”

    Uh…that’s the point, dude. Ask a prosecutor.

    1. That’s absolutely the point. I used to challenge regulators to point to blackletter law when they’d tell us to do or stop doing something. Seriously, over half the time there was no legal support for their position. Not that we won all of those battles, because regulators like to get you if you buck their dictates too frequently.

  2. Big deal, know the law and obey it, ignorance of the law is no excuse.

    1. Unless you’re a cop or DA.

    2. That was true about 200 years ago. I guarantee you’ve broken at least a few laws this month that you don’t know about. The Federal Register alone is around 80,000 pages.

  3. Arrogance of the law is no excuse, either.

  4. “would make it a crime to call in sick to work and go to a ball game instead.”
    What amateur slackers, shirkers, and malingerers. I never claim that I AM sick, only that I BELIEVE that I MAY not be well, using “well” as an expansive term that may include psychological refreshment as close by as the nearest ballpark. Indeed, this very Monday, what with the alignment of the stars, my past medical history, the stresses of my job (ha, ha ha!!!), and the 1st game of the basball season – may preclude my attendence at my employer…due to…health.

    1. I call them Mental Heath Days.

  5. “How can average Americans be expected to understand the law if even federal appellate judges are divided on its meaning?”

    This sounds like a disingenuous argument. Judges disagree constantly about all sorts of issues. This one is nothing special on that score.

    1. However, it’s still a valid point. If two guys have spent their entire careers studying the law, they should come to the same judgment on a a particular fact pattern, right? Good luck with that happening in anything but the simplest of cases.

      1. If proof of intent were still required, it would make a hell of a lot of difference.

        If you can’t understand the law because the law is written so poorly, how can you be expected to follow it?

        1. Ignorance of the law is no excuse.

          1. Excuse of the law is ignorance.

  6. I used to challenge regulators to point to blackletter law when they’d tell us to do or stop doing something. Seriously, over half the time there was no legal support for their position.

    I do it all the time, although I’ve given up on them ever realizing that they aren’t there to enforce rules that have never been adopted.

    Its a pretty handy way to get them to limit themselves to a slap on the wrist, though. Sadly, that counts as a win in our decaying Republic.

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