Monday, June 24, 2019

Vagueness Doctrine, Delegation Doctrine, and Justice Gorsuch's Opinion Today in US v. Davis

Rick Pildes

Justice Gorsuch's majority opinion today in Davis, striking down a federal criminal statute as unconstitutionally vague, bears a close relationship, which is likely to be missed, to his dissenting opinion last week on the delegation doctrine in the Gundy case.  That Justice Gorsuch's majority today was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, while his dissent last week was joined by Chief Justice Roberts, Justice Thomas (and received a sympathetic comment from Justice Alito), makes the relationship between the doctrines all the more intriguing.

In both contexts, the essential issue is whether Congress has failed to draft a law with enough specification of the policy choice being made as to violate the Constitution.  Consider some of the language from Justice Gorsuch's majority opinion today:  "Vague laws also undermine the Constitution's separation of powers and the democratic self-governance it aims to protect."  That sounds much like his statement in the Gundy dissent that "enforcing the separation of powers isn't about protecting institutional prerogatives or governmental turf.  It's about respecting the people's sovereign choice to vest the legislative power in Congress alone."  In both these cases under both doctrines (once with majority support, once without), Justice Gorsuch is concerned that Congress is abdicating its constitutional responsibility to make basic policy choices -- and is thereby inevitably putting into the hands of other actors the power to make those choices, whether those other actors are the President, the Attorney General, prosecutors, or judges.

There is certainly no doubt Justice Gorsuch himself sees a clear relationship between the vagueness and anti-delegation doctrines.  In Gundy, he argues directly that the two doctrines are close cousins:  "It's easy to see, too, how most any challenge to a legislative delegation can be reframed as a vagueness complaint."  Indeed, he goes further and suggests that they are almost substitutes for each other, so that as the Court came over time not to enforce the delegation doctrine, it increased its enforcement of the vagueness doctrine:  "And it seems little coincidence that our void-for-vagueness cases became more common soon after the Court began relaxing its approach to legislative delegations."

To be sure, there are a variety of differences between the contexts in which vagueness challenges and non-delegation ones arise.  Typically, vagueness challenges involve criminal laws, where there are various reasons involving fair notice and due process to criminal defendants for requiring that laws be written with particular clarity and specificity.  Delegation challenges, instead, typically arise with respect to civil laws involving regulation of the economy or foreign relations.

But the recent juxtaposition of today's Davis decision and last week's Gundy case brings out in a striking way how much Justice Gorsuch, at least, sees a fundamental commonality between vagueness and non-delegation doctrines centered around concerns about congressional abdication and the separation of powers.   


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