Crossing to join his four liberal colleagues, Justice Neil Gorsuch wrote the opinion in yesterday’s Davis v. U.S., finding unconstitutionally vague a federal sentence-enhancement provision prescribing “harsher penalties for those who use guns ‘in connection with certain other federal crimes.'” [Jack Rodgers, Courthouse News] His opinion begins:
In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.
It was the third rights-of-the-accused case this term in which Gorsuch took the liberal side, and put him at odds once again with Justice Brett Kavanaugh. In his dissent yesterday, after crediting tougher federal laws with at least partial responsibility for the drop in crime since the 1980s, Kavanaugh noted that the sentence enhancement has been applied without seeming difficulty in thousands of cases of violent offenses since its enactment:
The Constitution’s separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers….
The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality.
While both were appointed by President Trump, Gorsuch and Kavanaugh have been anything but in lockstep.
7 Comments
Gorsuch is bringing a lot to the table–but this decision is a turkey.
No, it’s not a turkey.
Congress would have had to work very hard to make the issue of what offenses the sentence enhancement at issue applies to any vaguer .
Kavanaugh’s quote of Judge Pryor sums up all you need to know.
Sorry, I looked it up in the decision and i can’t agree. That there may be some things that are obviously crimes of violence, does not make the statute less vague nor less over inclusive on the other end. “I know it when I see it” ought not to be acceptable in the criminal context.
The opinion Justice Gorsuch wrote says in part “when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them.“ An extremely important requirement.
Ayn Rand has her critics, but I think her Dr. Ferris character got this exactly right (Atlas Shrugged)
“There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt.”
It’s discouraging that this passage seems to apply so often to the more recently-enacted federal and state laws.
The Gorsuch / Kavanaugh split is something I’ve enjoyed reading in their decision making.
Of the two, my own leanings side most frequently with Gorsuch. Kavanaugh’s seemingly expansive views on the power and authority of the Government – which he seems to share with certain of the more “statist” members of the Court often termed liberals – is contrary to my policy preferences.
If Scotus splits 5-4, or even 8-1, on an issue, is that in itself not confirmation of vagueness? When even the Justices themselves cannot agree on what a law means, how are citizens supposed to follow it?