In a previous post, I introduced the claim—drawn from a new article, Very Broad Laws—that extremely broad criminal statutes, no less than vague and ambiguous criminal statutes, are constitutionally problematic for depriving ordinary people of "fair notice" about how the legal system actually works. One common rejoinder goes like this. The reason that vagueness and ambiguity are (at least in their most severe forms) unacceptable is they make it impossible for people to know what the law requires of them. They truly deprive us of "fair notice." Breadth, on the other hand, does no such thing. Sure, an ordinary person (or a judge, or a law professor) may not like broad laws, and may think them unwise—but they don't put members of public in the same bind that indeterminate laws do.
This rejoinder rests on an overly-thin, overly-positivist conception of "fair notice." In fact, "fair notice"—as the Court uses the term, and as the rule-of-law principles underlying the term would independently suggest—is a normative concept. It is not a question of whether the law's requirements are formally announced in the codebooks. It is a question of whether people have a meaningful understanding of how the legal system works, and have an opportunity to plan their lives, and calibrate their conduct, accordingly.
Of course, this is not to say that the first issue (the formal announcement of law's requirements in codebooks) is irrelevant to second issue (whether people understand with sufficiently clarity how the legal system works). But the relationship is one of necessity, not sufficiency. Abstract clarity about a law's requirements is necessary to give people fair notice, which means that severe forms of linguistic indeterminacy, because they deprive people of even abstract clarity, is enough to doom the law constitutionally. But banishing linguistic indeterminacy—ensuring that the law is neither too vague nor too ambiguous—is not enough to ensure fair notice. At the risk of making all post sound like a formal-logic brain teaser, we could put articlute this point the other way around (as I do in the article itself) and say that linguistic indeterminacy is sufficient to trigger fair notice concerns, but it is not necessary to do so. Breadth can trigger fair notice concerns as well.
A concrete example from last term will shore up the point. The Court's most recent addition to its "anti-breadth" canon, Marinello v. United States, centered on 26 USC § 7212(a), the so-called Omnibus Clause of the Internal Revenue Code, which criminalizes the act of "corruptly or by force or threat of force ... obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [taxes]." The dispute was over which kinds of "obstruction" or "impediment" qualify as predicate acts under the Omnibus Clause—in other words, at the level of actus reas, how far does the clause reach? According to the government, the answer was simple: the clause reaches all non-compliance with tax rules. And its legal argument was equally simple: "impediment" means "a thing that impedes," and there is no doubt that deliberate acts of non-compliance impede the overall administration of taxes.
No dice. Finding for petitioner, Justice Breyer reasoned that the government's construction of "impediment," despite adhering straightforwardly to the word's definition, simply encompassed too many cases of low-level—that is, culpable but, in the grander scheme of things, innocuous—violations. "Interpreted broadly," wrote Breyer, "the provision could apply to a person who pays a babysitter $41 per week in cash without withholding taxes, leaves a large cash tip in a restaurant, fails to keep donation receipts from every charity to which he or she contributes, or fails to provide every record to an accountant"—but these kinds of applications, plainly disproportionate as they are, would violate the "fair warning" principle that has long "led [the] Court ... to exercise interpretive restraint."
Importantly, however, the reason the government's construction flouted the "fair warning" principle was not that minor wrongdoing, like paying a babysitter without withholdings, is permissible; it plainly violates the tax code. Nor was the problem that a reasonable person could not be expected to know of the relevant law. Ignorance does not ordinarily excuse violations, and in any case, Justice Breyer explicitly acknowledged the possibility that someone who pays a babysitter without withholdings (or the equivalent) "may believe that, in doing so, he is running the risk of having violated an IRS rule." Rather, the infirmity of the government's view is that no one, having committed such a minor offense, "would believe he [could] fac[e] a potential felony prosecution for tax obstruction." In other words, the problem was the penalty's severity — or more exactly, the mismatch between the penalty's severity and the conduct's relative harmlessness.
This conclusion is important because it underscores that fair notice, in this context, is not about whether someone is literally on notice of the law's requirements. Putting aside the obvious issue that few people actually read laws, cases like Marinello point up the additional problem that even if one does consult the relevant law, there can still be a gap between the statute's clear language and reasonable expectations about the way it will be enforced; and when the gap is extreme, it should be resolved in favor of ordinary people, not in favor of the government. The whole point of the Marinello Court's analysis is that someone who fails to withhold from payments to a babysitter—even if he knows that doing so is wrong; indeed, even if he knows that doing so technically falls within the scope of 26 USC § 7212(a)—would never imagine being held criminally liable, down the line, for felony tax obstruction. And it is that variable, not the formal reach of tax law, that should drive the due process analysis.