A Republic, If You Can Keep It

by Neil Gorsuch

  Fair enough, some might respond, but sex offenders are so unpopular that there’s little chance an Attorney General would do anything other than apply SORNA retroactively to the fullest extent possible. Maybe there is no legislative mandate—conditional or otherwise—requiring him to follow this course, but there might as well be. A reply along these lines seems a likely enough answer to the question what a politically attuned Attorney General would do when the hot potato is passed his way. But it also seems an unlikely answer to the question whether Congress may constitutionally pass the potato in the first place. After all, in a delegation challenge the question isn’t whether the Executive is likely to exercise the delegation in one way or another but whether Congress is empowered to delegate the decision at all. Indeed, the logic at play here would serve to ensconce even the most extreme and obviously unconstitutional delegations only because of a judicial intuition about contemporary political pressures. And not only do unelected judges make for notoriously poor political pundits: Ours is supposed to be an independent judiciary making decisions on the legal merits without respect to the vagaries of shifting political winds.

  Some might claim an “intelligible principle” can be rummaged out of SORNA’s preamble—a provision that expresses Congress’s wish to “protect the public from sex offenders and offenders against children” by establishing “a comprehensive national system for the registration of those offenders.” But Supreme Court cases rejecting delegation challenges on intelligible principle grounds don’t usually rest on policy objectives voiced in a statute’s preamble. To be sure, the Court has sometimes gone so far as to suggest that Congress need only “clearly delineate[] the general policy” to guide an agency’s conduct. But this language usually seems to cover situations in which the legislative grant of discretion is tied to specific statutory provisions that expressly direct the exercise of that discretion. Meanwhile, no comparable guidance exists here.

  Requiring a direct statutory link between discretion and direction makes sense too. After all, as the Court has acknowledged in recent years, it is most assuredly wrong to assume that “whatever” seems to further a “statute’s primary objective must be the law.” Legislation is the art of compromise and few (if any) statutes pursue a single preambulatory purpose without condition, subtlety, or exception. For precisely these reasons, when it comes to the business of statutory interpretation it is usually the more specific and not the more general or aspirational direction that controls.

  Our case illustrates the point. SORNA’s prefatory provision expressing the desire to protect children and create a nationwide registration requirement hardly establishes that the statute meant to do so always and in every particular without exception or at any cost. In fact, SORNA is replete with examples of compromise even when it comes to future offenders. Congress indicated that some future offenders may be exempt from its registration requirements if they committed certain kinds of sex offenses but not others. Registration is required for life for some offenders but lesser periods for others. These periods can be reduced on good behavior. In these circumstances, it would seem strange to suppose that the statute’s prefatory statement of purpose—or, for that matter, provisions of the law discussing the treatment of future offenders—provides intelligible guidance for the Attorney General’s treatment of past offenders. Especially when Congress went on to address past offenders specifically, exempted them from the automatic application of any of the statute’s registration requirements, and left their treatment to the Attorney General.

  Separately but relatedly, the Supreme Court has instructed that under the intelligible principle test “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Faint echoes of detail doctrine can be found here: less direction may be required when Congress leaves it to the Executive to define what constitutes a “country elevator[]” and more may be required when Congress seeks to endow the Executive with the power to create regulations that affect the national economy. So even assuming that a preamble detached from the provision granting discretion to the Executive might suffice to supply an intelligible principle in some circumstances, it certainly won’t always. And once again it’s hard to see how the discretion conferred here is anything less than extraordinary—in its breadth (allowing the Attorney General to apply none, some, or all of SORNA’s requirements to none, some, or all past offenders), in its subject matter (effectively defining a new crime), in its chosen delegate (the nation’s top prosecutor), and in the number of people affected (half a million). All factors suggesting more, not less, guidance is required.

  To be sure, Congress could have easily written a statute with such constraints, and to remedy the delegation problem here it might still. For example, Congress could have tasked the Attorney General with the job of determining what factors correlate with recidivism or present an unreasonable danger to the public and make his determinations based on those considerations. When deciding which past offenders should be required to register Congress could have required the Attorney General to examine, as well, factors like the recency of the violation; the nature of the sex offense; the number of past violations; the offender’s age, family, residential, or occupational circumstances; or the offender’s mental or physical health—or banned consideration of any of these factors. It’s easy to imagine all sorts of ways Congress might have constrained—and might still constrain—the Attorney General’s discretion. But, and by the government’s own admission, we have nothing of the kind here.

  Delegation doctrine may not be the easiest to tease out and it has been some time since the Court has held a statute to cross the line. But it has also been some time since the courts have encountered a statute like this one—one that, if allowed to stand, would require the Judiciary to endorse the notion that Congress may effectively pass off to the prosecutor the job of defining the very crime he is responsible for enforcing. By any plausible measure we might apply that is a delegation run riot, a result inimical to the people’s liberty and our constitutional design.

  Sessions v. Dimaya

  This case shares some similarities with the one that precedes it. In the last case, a congressional statute expressly delegated to the executive branch the power to make the law. In this excerpt from a concurrence from my first full term on the Supreme Court, a vague statute effectively gave the power to make law to both prosecutors and judges.

  Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation to a penal colony or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

  The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

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  I BEGIN WITH A foundational question. Writing for the Court in Johnson v. United States, Justice Scalia held the residual clause of the Armed Career Criminal Act void for vagueness because it invited “
more unpredictability and arbitrariness” than the Constitution allows. Because the residual clause in the statute now before us uses almost exactly the same language as the residual clause in Johnson, respect for precedent alone would seem to suggest that both clauses should suffer the same judgment.

  But first in Johnson and now again today Justice Thomas has questioned whether our vagueness doctrine can fairly claim roots in the Constitution as originally understood. For its part, the Court has yet to offer a reply. I believe our colleague’s challenge is a serious and thoughtful one that merits careful attention. At day’s end, though, I am persuaded that void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.

  Consider first the doctrine’s due process underpinnings. The Fifth and Fourteenth Amendments guarantee that “life, liberty, or property” may not be taken “without due process of law.” That means the government generally may not deprive a person of those rights without affording him the benefit of (at least) those “customary procedures to which freemen were entitled by the old law of England.” Admittedly, some have suggested that the Due Process Clause does less work than this, allowing the government to deprive people of their liberty through whatever procedures (or lack of them) the government’s current laws may tolerate. But in my view the weight of the historical evidence shows that the clause sought to ensure that the people’s rights are never any less secure against governmental invasion than they were at common law. Lord Coke took this view of the English due process guarantee. John Rutledge, our second Chief Justice, explained that Coke’s teachings were carefully studied and widely adopted by the framers, becoming “ ‘almost the foundations of our law.’ ” And many more students of the Constitution besides—from Justice Story to Justice Scalia—have agreed that this view best represents the original understanding of our own Due Process Clause.

  Perhaps the most basic of due process’s customary protections is the demand of fair notice. Criminal indictments at common law had to provide “precise and sufficient certainty” about the charges involved. Unless an “offence [was] set forth with clearness and certainty,” the indictment risked being held void in court.

  The same held true in civil cases affecting a person’s life, liberty, or property. A civil suit began by obtaining a writ—a detailed and specific form of action asking for particular relief. Because the various civil writs were clearly defined, English subjects served with one would know with particularity what legal requirement they were alleged to have violated and, accordingly, what would be at issue in court. And a writ risked being held defective if it didn’t provide fair notice.

  The requirement of fair notice applied to statutes too. Blackstone illustrated the point with a case involving a statute that made “stealing sheep, or other cattle” a felony. Because the term “cattle” embraced a good deal more then than it does now (including wild animals, no less), the court held the statute failed to provide adequate notice about what it did and did not cover—and so the court treated the term “cattle” as a nullity. All of which, Blackstone added, had the salutary effect of inducing the legislature to reenter the field and make itself clear by passing a new law extending the statute to “bulls, cows, oxen,” and more “by name.”

  This tradition of courts refusing to apply vague statutes finds parallels in early American practice as well. In The Enterprise, for example, Justice Henry Brockholst Livingston found that a statute setting the circumstances in which a ship may enter a port during an embargo was too vague to be applied, concluding that “the court had better pass” the statutory terms by “as unintelligible and useless” rather than “put on them, at great uncertainty, a very harsh signification, and one which the legislature may never have designed.” In United States v. Sharp, Justice Bushrod Washington confronted a statute which prohibited seamen from making a “revolt.” But he was unable to determine the meaning of this provision “by any authority…either in the common, admiralty, or civil law.” As a result, he declined to “recommend to the jury, to find the prisoners guilty of making, or endeavouring to make a revolt, however strong the evidence may be.”

  Nor was the concern with vague laws confined to the most serious offenses like capital crimes. Courts refused to apply vague laws in criminal cases involving relatively modest penalties. They applied the doctrine in civil cases too. As one court put it, “all laws” “ought to be expressed in such a manner as that [their] meaning may be unambiguous, and in such language as may be readily understood by those upon whom it is to operate.” “ ‘It is impossible…to dissent from the doctrine of Lord Coke, that acts of parliament ought to be plainly and clearly, and not cunningly and darkly penned, especially in penal matters.’ ”

  These early cases, admittedly, often spoke in terms of construing vague laws strictly rather than declaring them void. But in substance void the law is often exactly what these courts did: rather than try to construe or interpret the statute before them, judges frequently held the law simply too vague to apply. Blackstone, for example, did not suggest the court in his illustration should have given a narrowing construction to the term “cattle,” but argued against giving it any effect at all.

  What history suggests, the structure of the Constitution confirms. Many of the Constitution’s other provisions presuppose and depend on the existence of reasonably clear laws. Take the Fourth Amendment’s requirement that arrest warrants must be supported by probable cause, and consider what would be left of that requirement if the alleged crime had no meaningful boundaries. Or take the Sixth Amendment’s mandate that a defendant must be informed of the accusations against him and allowed to bring witnesses in his defense, and consider what use those rights would be if the charged crime was so vague the defendant couldn’t tell what he’s alleged to have done and what sort of witnesses he might need to rebut that charge. Without an assurance that the laws supply fair notice, so much else of the Constitution risks becoming only a “parchment barrie[r]” against arbitrary power.

  Although today’s vagueness doctrine owes much to the guarantee of fair notice embodied in the Due Process Clause, it would be a mistake to overlook the doctrine’s equal debt to the separation of powers. The Constitution assigns “[a]ll legislative Powers” in our federal government to Congress. It is for the people, through their elected representatives, to choose the rules that will govern their future conduct. Meanwhile, the Constitution assigns to judges the “judicial Power” to decide “Cases” and “Controversies.” That power does not license judges to craft new laws to govern future conduct, but only to “discer[n] the course prescribed by law” as it currently exists and to “follow it” in resolving disputes between the people over past events.

  From this division of duties, it comes clear that legislators may not “abdicate their responsibilities for setting the standards of the criminal law,” by leaving to judges the power to decide “the various crimes includable in [a] vague phrase.” For “if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large[,] [t]his would, to some extent, substitute the judicial for the legislative department of government.” Nor is the worry only that vague laws risk allowing judges to assume legislative power. Vague laws also threaten to transfer legislative power to police and prosecutors, leaving to them the job of shaping a vague statute’s contours through their enforcement decisions.

  These structural worries are more than just formal ones. Under the Constitution, the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives. Allowing the legislature to hand off the job of lawmaking risks substituting this design for one where legislation is made easy,
with a mere handful of unelected judges and prosecutors free to “condem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.” Nor do judges and prosecutors act in the open and accountable forum of a legislature, but in the comparatively obscure confines of cases and controversies. For just these reasons, Hamilton warned, while “liberty can have nothing to fear from the judiciary alone,” it has “every thing to fear from” the union of the judicial and legislative powers. No doubt, too, for reasons like these this Court has held “that the more important aspect of vagueness doctrine ‘is not actual notice, but…the requirement that a legislature establish minimal guidelines to govern law enforcement’ ” and keep the separate branches within their proper spheres.

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  PERSUADED THAT VAGUENESS DOCTRINE enjoys a secure footing in the original understanding of the Constitution, the next question I confront concerns the standard of review. What degree of imprecision should this Court tolerate in a statute before declaring it unconstitutionally vague? For its part, the government argues that where (as here) a person faces only civil, not criminal, consequences from a statute’s operation, we should declare the law unconstitutional only if it is “unintelligible.” But in the criminal context this Court has generally insisted that the law must afford “ordinary people…fair notice of the conduct it punishes.” And I cannot see how the Due Process Clause might often require any less than that in the civil context either. Fair notice of the law’s demands, as we’ve seen, is “the first essential of due process.” As we’ve seen, too, the Constitution sought to preserve a common law tradition that usually aimed to ensure fair notice before any deprivation of life, liberty, or property could take place, whether under the banner of the criminal or the civil law.