The Perils of Complexity

As a practicing lawyer, I naturally have a professional interest in vague and/or complex legal rules that require lots of expensive legal research, training and experience to understand and explain. But complexity isn’t just costly to consumers of legal services, and thus a burden on business as well as on citizen access to the courts. It’s also a drag on the economy and on personal liberty, as businesses and ordinary citizens must choose between paying lots of compliance lawyers or steering too wide of increasingly large gray areas. It risks in particular the unfair, arbitrary and sometimes corrupt or discriminatory abuse of the criminal justice system to prosecute things that were hard to foresee as violations of the law. And it demeans democracy, as the actual making of law is done by judges and bureaucrats rather than citizen-elected legislators.


One of the greatest virtues of Justice Scalia in his quarter-century on the Supreme Court (he celebrates 25 years on the High Court in September) has been his structural critique of, and systemic assault on, unnecessary legal complexity. In three opinions this morning, he focused attention on three different aspects of that same problem – one of which was graphically illustrated by yesterday’s news regarding the widespread practice of waivers under Obamacare. And last week’s news regarding the indictment of John Edwards illustrates how the failure to heed Scalia’s wise observations has made a hash of efforts by campaign finance “reformers” to regulate political speech in the United States.

Scalia’s Critique

1. Sykes v United States: Vagueness By Judging

In the first case, Sykes v. United States, Scalia dissented from an opinion by Justice Kennedy regarding the Armed Career Criminal Act, which punishes the possession of firearms by felons with three prior “violent felony” convictions. Congress, however, did not set out an exhausive list in the ACCA of what is a “violent felony,” and since every state has its own set of felonies, there has been repeated litigation over what is and is not a “violent felony,” and the Court has adopted a variety of tests for determining whether a particular state felony counts. Blasting “today’s tutti-frutti opinion” for failing to choose among these tests, Scalia tore into the entire process of using repeated Supreme Court cases to define what Congress, in the ACCA, has failed to define:

As the Court’s opinion acknowledges, this case is “another in a series,”…More specifically, it is an attempt to clarify, for the fourth time since 2007, what distinguishes “violent felonies” under the residual clause of the [ACCA], from other crimes. We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.

As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness.



My assessment has not been changed by the Court’s later decisions in the ACCA “series.” Today’s opinion, which adds to the “closest analog” test … the “purposeful, violent, and aggressive” test … and even the risky-as-the-least-risky test that I had proposed as the exclusive criterion, has not made the statute’s application clear and predictable. And all of them together – or even the risky-as-the-least-risky test alone, I am now convinced – never will. The residual-clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home.

That does not violate the Constitution. What does violate the Constitution is approving the enforcement of a sentencing statute that does not “give a person of ordinarily intelligence fair notice” of its reach…and that permits, indeed invites, arbitrary enforcement. The Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come. The reality is that the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” does not clearly define the crimes that will subject defendants to the greatly increased ACCA penalties. It is not the job of this Court to impose a clarity which the text itself does not honestly contain. And even if that were our job, the further reality is that we have by now demonstrated our inability to accomplish the task.

Scalia found especially unhelpful the Court’s technocratic analysis through crime statistics of what felonies tend to be associated with violence (a chronic problem with using the ever-changing body of social science research to determine the meaning of a statute or Constitutional term that was adopted at a fixed point in time):

[T]he more fundamental problem with the Court’s use of statistics is that, far from eliminating the vagueness of the residual clause, it increases the vagueness. Vagueness, of course, must be measured ex ante – before the Court gives definitive meaning to a statutory provision, not after. Nothing is vague once the Court decrees precisely what it means. And is it seriously to be expected that the average citizen would be familiar with the sundry statistical studies showing (if they are to be believed) that this-or-that crime is more likely to lead to physical injury than what sundry statistical studies (if they are to be believed) show to be the case for burglary, arson, extortion, or use of explosives? To ask the question is to answer is to answer it.


Finally, Scalia homes in on the real culprit: an overly-meddlesome Congress:

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 nittygritty. 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.

2. DePierre v. United States: Lawmaking By Legislative History

One of Justice Scalia’s best-known crusades, at least among lawyers, is against the use of legislative history to determine the meaning of statutes. Now, there are good reasons at times to look at the historical record at the time a statute or Constitutional provision was enacted to get a general sense of how terms were understood at the time and what problem a particular enactment was targeted at, but Scalia’s point is twofold: (1) when Congress speaks clearly, its work should not be undone by what was said at some point by some participant in the legislative debate and (2) legislative history is rarely a trustworthy guide to what the majority who voted for a bill intended – it can easily capture just the thinking of some staffers. And of course, if you have to research legislative history every time lawyers argue over a statute, that makes litigation more expensive, and the law harder to understand for non-lawyers who don’t keep volumes of USCCAN on their bookshelves.

In a characteristically acid-tipped concurrence to an opinion by Justice Sotomayor holding that “cocaine base,” for sentencing purposes, includes all forms of cocaine base and not just crack, Justice Scalia unloaded on the Court for taking the time to include a discussion of legislative history in its analysis:

Everything in-between could and should have been omitted. Even if Dr. Byck had not lectured an undetermined number of likely somnolent Congressmen on “the damaging effects of cocaine smoking on people in Peru,” … we would still hold that the words “cocaine base” mean cocaine base. And here, as always, the needless detour into legislative history is not harmless. It conveys the mistaken impression that legislative history could modify the text of a criminal statute as clear as this. In fact, however, even a hypothetical House Report expressing the Committee’s misunderstanding (or perhaps just the Committee staff’s misunderstanding, who knows?) that “cocaine base means crack cocaine” could not have changed the outcome of today’s opinion.


3. Talk America, Inc. v. Michigan Bell Telephone Co.: Lawmaking By Bureaucratic Fiat

In the third of today’s trilogy, Justice Scalia filed a concurrence to an opinion by Justice Thomas regarding the meaning of some FCC regulations. There are longstanding rules (subject to some exceptions not relevant here) under which courts defer to administrative agencies in determining the meaning of the statute the agency is charged with enforcing. Justice Scalia wrote separately to explain why he was rethinking one corollary to that rule, extending deference to an agency’s interpretation of its own regulations:

On the surface, it seems to be a natural corollary – indeed, an a fortiori application – of the rule that we will defer to an agency’s interpretation of the
statute it is charged with implementing … But it is not. When Congress enacts an imprecise statute that it commits to the implementation of an executive agency, it has no control over that implementation (except, of course, through further, more precise, legislation). The legislative and executive functions are not combined. But when an agency promulgates an imprecise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule’s meaning. And though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well. “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.” Montesquieu, Spirit of the Laws

Deferring to an agency’s interpretation of a statute does not encourage Congress, out of a desire to expand its power, to enact vague statutes; the vagueness effectively cedes power to the Executive. By contrast, deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government. The seeming inappro­priateness of [such] deference is especially evident in cases such as these, involving an agency that has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends.


Obamacare Waivers and Bureaucratic Lawmaking

The issue of combining the executive and judicial functions was a great source of controversy during the Bush years, as many liberals reacted with loud horror at the Bush Administration’s use of “signing statements” – a longstanding practice used by all prior Administrations – to announce where it would not comply with laws it deemed unconstitutional. Yet the problem has mushroomed under the Obama Administration, with nary a peep from the same critics – not only has Obama continued the use of signing statements, he has also refused to defend the constitutionality of duly-enacted laws. And of course, the excessive reliance on bureaucracies to make, enforce and construe the law has expanded apace under this Administration together with its push for more regulations, more “czars,” and more government meddling in business.

The latest example of this is the news that Obamacare – the bill you famously had to pass to find out what was in it – doesn’t expressly authorize the Department of Health and Human Services to grant waivers from the statute’s requirements:

[T]he Department of Health and Human Services (HHS) never had the authority to issue waivers from Obamacare’s annual limit requirements.

Language granting HHS that power was never in the original law. Instead, through new rules and regulations, HHS gave itself the power last summer using a broad interpretation of certain parts of the law.

The annual limit requirement waivers exempt recipients for one year from having to increase the amount of health care coverage they provide their workers. Each year between now and 2014, the minimum annual limit rises to a new, higher amount. Though the waivers are only for one year, recipients can reapply and be re-approved every year through 2014.

This is a far larger issue than signing statements, given the massive reach of the statute into American domestic life, and the waiver process is a graphic real-world illustration of Justice Scalia’s concern about arbitrary enforcement when laws are not clear on their face, accountable to Congress and applied uniformly across the population:

In what’s become a bit of a pattern for the Obama administration, there’s at least an appearance of political favoritism in favor of those who lobbied for HHS to grant itself waiver power. Many of the administration’s nearly 1,400 waivers, including the waivers that went to House Minority Leader Nancy Pelosi’s San Francisco district in April, went to companies and entities that lobbied their support behind HHS’s drive to grant itself that power.


United States v Johnny Edwards

For another such graphic illustration, look no further than John Edwards, a two-time presidential candidate who 59 million Americans voted to make Vice President in 2004, and who now stands under indictment for taking money from contributors to cover up an affair and illegitimate child. I have no sympathy whatsoever for Edwards, but after the initial rush of schadenfreude wore off, the fact remains that his criminal prosecution, too, raises some troubling questions about the complexity of the law. Much of the original debate about the legal investigation of Edwards was about whether he could be charged with misusing campaign contributions to pay off his mistress, on the theory that this is not a valid campaign purpose. But instead, Edwards was charged under precisely the opposite theory: that taking money from big backers to pay off his mistress, without reporting them as campaign contributions, violated FEC rules because paying her off was for the purpose of advancing his campaign. Edwards was damned if he did and damned if he didn’t.

This is, if you recall, not the first time a major figure on the national political scene has faced a campaign finance investigation or prosecution under rules that are far from clear, ranging from the IRS investigation of then-Speaker Newt Gingrich to the investigation of then-Vice President Al Gore to the conviction of former House Majority Leader Tom DeLay. In each case, there was much controversy over the complexity of the rules involved and the lack of precedents for the charges being levelled – witness Gore’s famous lament, under a provision of the Pendleton Act that hadn’t been enforced since 1883, that there was “no controlling legal authority.” You may find these protestations unconvincing as to those politicians you disagree with, but one of the basic principles of clarity in the law is that you shouldn’t pass criminal statutes if you wouldn’t be prepared to see them used against someone you like. Ad hoc-racy is not democracy in the world of campaign finance any more than it is under the ACCA.

Maybe we need to listen more to Justice Scalia and that old military maxim, KISS: Keep It Simple, Stupid.


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