Montesquieu
Cross-posted by Forbes.com at On the Docket
The U.S. Supreme Court issued four opinions this morning, all of which the Court has posted on its website. One with particular implications for the free enterprise system, Microsoft v. i4i, will be the subject of a Guest Commentary post later today.
Our focus here will be on the interesting, possibly influential, and certainly entertaining opinions of Justice Scalia in two cases. The unifying theme of the separate opinions is vagueness, and whether courts should continue deferring so readily to Congress or federal agencies which so often draft laws or rules in imprecise or impenetrable language.
In
Talk America v. Michigan Bell Telephone, the Court unanimously upheld an FCC regulation requiring providers of local telephone services to make the entrance facilities of their telecom networks available to competitors at cost-based rates. Eight of the nine Justices agreed that the FCC’s regulation was a reasonable interpretation of other FCC regulations, citing to Supreme Court precedents including the 1997 ruling
Auer v. Robbins. Justice Scalia concurred in the judgment, using the opportunity to express his “increasing[ ] doubt[ ]” about the “validity” of
Auer and its principle. He argued that under a system based on constitutional separation of powers, the person who promulgates a law should not be allowed to interpret it as well. Lacking case law to cite, Justice Scalia quoted Montesquieu’s
Spirit of the Laws:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
He also references an on-point
law review article by Professor John Manning, and notes he will be “receptive” to reconsidering
Auer when it is squarely before the Court.
The second case,
Sykes v. United States, provides a good retort to those who claim that the Justices vote unfailingly along partisan lines. In this criminal case, Justice Kennedy wrote the majority opinion, with Justices Kagan and Ginsburg penning one dissent, and Justice Scalia another. The Court held that “felony vehicle flight” is a violent felony under a residual clause in the Armed Career Criminal Act (ACCA), and thus the defendant can be subject to a longer jail sentence.
Justice Scalia’s dissent sarcastically points out that Sykes is the Court’s fourth attempt at interpreting ACCA’s residual clause: “We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.” After reminding his colleagues that “insanity . . . is doing the same thing over and over again, but expecting different results,” he writes it’s time to declare the clause “void for vagueness.”
The Scaliaistic broadsides continue throughout the dissent. He labels the Court’s majority “today’s
tutti-frutti opinion,” and scolds, “Supreme Court briefs are an inappropriate place to develop the key facts in a case.” The point he makes is an important one, especially for those concerned, as WLF is, about the rampant criminalization of business conduct: people “of ordinary intelligence” deserve “fair notice” of a law’s reach. His concluding paragraph merits full reprinting, with some deserving emphasis:
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.
