How Vague Laws Expand Government Power


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.