There is a larger problem to face, though: laws that are almost impossible to understand because of how vague they are. In an excellent column, Gene Healy points out the following example:The correct number of regulations is the smallest number that gets a good result, because hugely complicated regulations can make criminals out of people who are acting in good faith.
Michael Drebeen, a deputy solicitor general in the Obama administration, had a rough morning last Tuesday. He argued two Supreme Court cases back to back, defending a notoriously vague federal criminal statute -- and the justices worked him over vigorously.We see way too many examples of this sort of vague legislation going on and a lot of it ends up in the front of the Supreme Court. And it really hurts all of us. Read the whole thing.
The 1988 law at issue aims at public corruption and corporate misconduct, but sweeps far too broadly, criminalizing schemes to "deprive another of the intangible right of honest services."
If that language seems a little, well, intangible to you, you're not alone. Hurling hypotheticals, the justices strained to find a limiting principle that could prevent the law from covering an employee reading a racing form on the clock (Stephen Breyer) or calling in sick to go to a ballgame (Antonin Scalia). Of some 150 million workers in the United States, Breyer told Drebeen, "I think possibly 140 million of them would flunk your test."
6 comments:
Mark,
Good post and good article. The so called "honest services" statute is a bad joke. It has been receiving some press here in Illinois recently because it is going to be used on Blago, which probably means that the Feds don't have enough on that moron to actually convict him.
My first impression of the bill by Don Manzullo to create a commission to sunset unnecessary and constitutionally dubious federal crimes is that it is a good idea. But even if it were implemented, I wonder how that unholy alliance of big-business-hating liberals and tough-on-crime conservatives would use it. I could see it becoming a political football for both sides of the aisle.
Maybe I am just too cynical...nah!
Regards,
Rich
I wonder how that unholy alliance of big-business-hating liberals and tough-on-crime conservatives would use it. I could see it becoming a political football for both sides of the aisle.
I worry about that, too. And I don't think you're being cynical at all. We have ample reason for cynicism.
"which probably means that the Feds don't have enough on that moron to actually convict him."
Maybe, but the Feds' bigger difficulty is to separate the Blago from the Obama. They are like two peas in a pod.
Maybe, but the Feds' bigger difficulty is to separate the Blago from the Obama.
As a former Chicagoan, I pay attention to the politics down there. I don't think Obama is any danger on that score. The big prize is, and remains, Richard M. Daley.
My point was more about the Feds walking on eggshells to make darned sure not a speck of mud tarnishes The One.
But of course I would defer to you on ChiTown political/corruption intricacies.
Well said on the vague laws; it reminds me of the Protestant doctrine of the "perspicuity" of Scripture. That is, anyone of average intelligence ought to be able to get something out of it. The old English tradition of law is similar; it is supposed to be obvious to the point that the average person does not need to hire a lawyer to understand it.
And on Blago and Obama? I find it curious, to be honest, that the investigation was torpedoed by a leak just as Blago was about to accept a check--and drag in other people. I'm not entirely convinced that Dear Leader would not have been implicated.
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