All the possible numerators and denominators for the one-person, one-vote rule in the title of this post come straight out of the Court's opinion in Evenwel Monday. See, e.g., slip op. at 4 n.3 (listing a variety of apparently permissible exclusions, on the part of various states, from "the total-population apportionment base," including formerly non-domiciled prisoners, immigrant non-citizens,* and temporary residents); id. at 16 n.12 (declining to address whether non-voters even have standing to bring one-person, one-vote claims); id. at 19 (declining to decide whether states may equalize voters, rather than residents, between districts); id. (noting that total-population apportionment has the virtue of "ensuring that each representative is subject to requests and suggestions from the same number of constituents"); but see id. at 19 n.14 (acknowledging the lack of any constitutional right to equal access to representatives).
* The Court is careful to quote the SG's claim, in his brief, that the immigrant non-citizen exclusions, which can be found in Maine and Nebraska's state constitutions, are currently not "operational as written." I take this observation to be calculated, in part, to negate any inference of the propriety of those exclusions from the Court's cataloguing them in its list of modest departures from total-population apportionment. Interestingly, not "operational as written" turns out to be a euphemism for Maine and Nebraska violating their own state constitutions by counting non-citizens in recent reapportionments.
To be clear, my complaint isn't that the Court has turned the one-person, one-vote rule into the one-permanent-resident, one-share-of-representative-access rule; I quite agree with the Court that slogans about the doctrine are irrelevant. My complaint is that the Court's turned the rule into the one-x, one-y rule. It's hard to see how the Constitution can mandate the equalization of something or another among some or another set of persons, within 10% deviation no less, without providing, or being construed to provide, what that something or another or some or another set of persons is. It's as if the Court had held in San Antonio Independent School District that the Constitution mandated equal educational ______ as between _____ but let the states decide how to fill in the blanks.
The Court's argument collapses on itself in painfully obvious ways. The Court concedes in footnote 14, or appears to concede, that there is no constitutional right to equal access. ("Appellants point out that constituents have no constitutional right to equal access to their elected representatives. But a State certainly has an interest in . . . facilitat[ing] access for all its residents.") If that is so, but there is some constitutional right against a diluted vote that underwrites the one-person, one-vote rule, how can a vote-dilutive equalization of access like the one in Evenwel be tolerated? Recall that the differences between the districts at issue in this case, in terms of voters, exceed 40%, and that the (voters? residents? residents not residing in jail?) the one-person, one-vote rule requires to be equalized between districts have to be equalized within 10%. It would seem to follow that whatever constitutional right there may be against vote dilution is too weak to explain the rule, since that right tolerates deviations four times greater than the rule does.
On the other hand, if there isn't a constitutional right against a diluted vote, or at least one not strong enough to forbid deviations of 40% between districts' voter-population, what right underwrites the one-person, one-vote rule? The Court concedes away equal access, is unwilling to venture a dictum, see slip op. at 16 n.12, on whether non-voters even have standing to challenge malapportioned districts, and even suggests at one point that the choice of apportionment base may be a nonjusticiable political question, see id. at 7 n.6, which if true would seem to rule out any one right as an explanation of the rule. Perhaps there is some right to equal representation, as apart from equal access, but the Court's lone explanation of why a state might even want to equalize total population between districts, let alone have to, says that non-voters have needs for constituent services and suggestions to offer on many policy issues, and is immediately followed by the footnote disclaiming any right to equal access. Besides, it's a little difficult to understand what, substantively, a right to equal representation as apart from equal access would be. What does it mean to say that a non-voter - a child, or a non-citizen, or a felon - has a right to be in a district with population equal to that of surrounding districts, if it doesn't mean that the non-voter has a right to equal opportunity to make suggestions and request services? That his presumed interests will be given equal voice in Congress and the state legislatures, by representatives who have no electoral incentives to give his interests voice? The Court is wise to not address whether non-voters have standing to bring such elusive equal-representation claims.
Ultimately, the Court seems to suggest that the one-person, one-vote rule flows from both a right against vote dilution and a right to equal representation (though it's careful to refer to both as mere "interests"), the product of which rights somehow ends up being a right against 10% deviations, between districts, in whatever population base the state chooses, with possibly a thumb on the scale in favor of residents.* As doctrine, this is hard to stomach. All the same, it's very understandable. Evenwel, it strikes me, is a predictable consequence of this Court grappling with Warren and Burger Court precedent, as the Warren Court's allergy to legal reasoning and doctrine and the Burger Court's penchant for arbitrary, faux-legislative constitutional decision rules mix with the present Court's penchant for stare decisis and inability to agree on deep theories of almost anything.
* Although the Court disclaims deciding whether states may equalize voters instead of residents, that question was
in no way before the Court, as much as some of the parties wanted to
put it there, so it's hard to infer much from the Court's declining to decide that issue. And though some members of the majority, including the author of the Court's opinion,
almost certainly would forbid states from equalizing voters, hence the
opinion's extensive citation to evidence of the Fourteenth Amendment's
framers' preference for equalizing population, I find it hard to believe
that there is a majority for mandatory equalization of residents. Some people will draw a negative inference from the fact that Justice Alito's concurrence, strongly suggesting that states may equalize voters, was only joined by Justice Thomas, but it may be that Justice Kennedy and the Chief Justice simply saw no reason to stake out a position on the issue in a case that didn't present it.
Wednesday, April 6, 2016
Monday, April 4, 2016
Welch v. United States Argument Recap, and a Puzzle About the Facial Invalidation of Vague Statutes
The Supreme Court heard oral argument in Welch v. United States last week, a case on whether the Court's decision on Johnson v. United States, which held that the residual clause of the Armed Career Criminal Act (ACCA) was void for vagueness, applies retroactively on collateral review. (Petitioner Welch and the United States agree that it does; an amicus appointed to defend the judgment below argued that it doesn't.) Whether it does or doesn't, I think, raises a difficult puzzle about why courts invalidate vague statutes that have clear applications.
The residual clause of the ACCA, if you're not familiar, provided that a felon convicted of possession of a firearm would receive a sentence with a mandatory minimum of 15 years, and a maximum of life, if he had three prior convictions for crimes which, inter alia, "involve[] conduct that presents a serious potential risk of injury to another." (Crimes counting towards this sentence enhancement also included burglary, explosives crimes, and arson, and prior to Johnson the Court had held that the risk posed by crimes captured by the residual clause must be similar to that posed by these listed offenses.) Largely because of the Court's (incorrect) insistence that the residual clause only captured crimes that "categorically" posed a serious potential risk of injury (that is, pre-Johnson the Court asked whether in an imagined ordinary case of a commission of a crime, that crime would pose a serious risk of injury, not whether the offender's actual conduct posed a serious risk of injury), the Court was unable to bring predictability to its or lower courts' interpretations of the residual clause, and abandoned the effort in Johnson, holding that the residual clause was void for vagueness.
Welch asks whether that holding is retroactive in habeas. For purposes relevant to Welch, a new rule announced by the Court applies retroactively to final convictions if it is substantive, but not if it is procedural. What does this mean? While the Court has, at times, suggested that substantive rules are those which interpret substantive constitutional guarantees, and that procedural rules are those which interpret procedural constitutional guarantees, it is tolerably clear from the Court's most fulsome majority opinion on the subject, linked to above, that what demarcates the two types of rules is their effects, not their sources. A substantive rule "alters the range of conduct or the class of persons that the law punishes," or, alters the range of conduct or the class of persons subject to a particular punishment. A procedural rule "do[es] not produce a class of persons convicted of conduct the law does not make criminal, but merely raise[s] the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise."
Oral argument revealed broad consensus among the Justices that this characterization of the substantive/procedural divide is the right one. Even the Chief Justice commented, in questioning the amicus defending the judgment below, that a rule is only "properly categorized as procedural if there's some people who could be convicted . . . legitimately." On this rubric, Johnson's invalidation of the residual clause, though an enforcement of the Constitution's guarantee of fair notice (a procedural right), was a substantive rule, because it produced a class of persons whose sentences were illegitimate, i.e., who received a sentence that the law no longer provided.
The only issue on which any of the Justices appeared less than settled was whether there were, in fact, some persons who could be constitutionally sentenced under the residual clause. Suppose that the residual clause were constitutional as applied to cases where its application was clear. As Justice Alito's dissent in Johnson pretty persuasively argued, and the Johnson majority acknowledged, the residual clause's concept of a crime that involves conduct posing a serious risk of injury, while fuzzy-edged, does have many clear applications; crimes like attempted rape, attempted arson, or attempted kidnapping all obviously involve, in the typical case, conduct that presents a serious risk of injury. Felons in possession of a firearm with a sufficient number of prior convictions of crimes, like these, that obviously pose a serious risk of injury to others, would have been on fair notice that they would be subject to the residual clause's mandatory minimum. If they received fair notice, why should their sentences be invalid? If some subset of persons sentenced under the residual clause received valid sentences, Johnson would then look like a procedural rule, one which merely raised a possibility of a unconstitutional sentence in any particular case. Some people sentenced under the residual clause would be the victims of a defective procedure -- a statute that deprived them of fair notice -- but others sentenced under the residual clause would not be the victims of a defective procedure, because as applied to their prior convictions, the residual clause did give fair notice.
The Chief Justice had a lengthy colloquy with the amicus along these lines, and eventually seemed to at least have doubts that the residual clause was unconstitutional in its clearest applications. It turns out, however, that the constitutionality of the residual clause in its clear applications was asked and answered in Johnson (which the Chief Justice joined) itself. In Johnson, Justice Alito argued, in dissent, that the residual clause wasn't vague in all its applications and therefore couldn't be facially void. Justice Scalia, who had previously made just this argument about facially invalidating vague statutes in dissent in Morales, replied for the Court that it had previously invalidated statutes as void for vagueness when those statutes had clear applications; for example, it had invalidated a statute that made it a crime for a grocer to charge an unreasonable price for food even though some prices would clearly be unreasonable. The Court ultimately held "that imposing an increased sentence under the residual clause . . . violates the Constitution's guarantee of due process," a holding which leaves no space for argument that residual-clause sentences may be constitutional in cases of prior offenses that clearly involve a serious risk of injury.
Johnson accurately characterized the Court's void-for-vagueness precedents; what sense, though, do those precedents, or Johnson, make? First, for avoidance of doubt, the Johnson Court expressly conceded it was "[t]rue enough" that "there will be straightforward cases under the residual clause, because some crimes clearly pose a serious potential risk of injury to another"; the Court only doubted how many of those straightforward cases there were. In one of these concededly straightforward cases, where is the due process violation, or if there isn't one, why should the defendant be able to assert the due process rights of others?
One answer is Henry Monaghan's famous "valid rule requirement," first advanced in a defense of First Amendment overbreadth doctrine - that people have a constitutional right not to be subjected to governmental sanctions under an invalid rule of law. Monaghan's arguments for, or really assertions of, the valid rule requirement have been the subject of what I view as fairly devastating criticism, but there is certainly some intuitive appeal to the claim that, e.g, after Citizens United someone who makes constitutionally proscribable inciting remarks can't be punished under a statute that bans all electioneering communications funded by certain sources, or that, after Heller, someone who owns a submachine gun can't be punished under a statute that bans possession of any gun. At a certain point, a statute that is broadly unconstitutional in most applications looks like it should be unconstitutional in all.
Thumbnail sketches of a few arguments for that intuition would go as follows. Perhaps a conviction grounded on, for example, the mere fact of gun possession improperly stigmatizes the defendant for engaging in protected conduct, or improperly expresses to the community that protected conduct is wrongful. Perhaps the trouble is simply that convictions under statutes like these don't require proof of unprotected conduct; whether or not it happened, a court didn't have to find it. Perhaps the reason that statutes like these can't merely be judicially narrowed to their constitutional applications, and upheld in such applications, is that we have no way of knowing whether the legislature would have regulated the constitutional applications had it realized that what it was doing was unconstitutional. (This is not, I think, just a severability concern, though it sounds like one.) Perhaps the problem with many, though not all, broadly unconstitutional statutes is their illicit purpose. Finally, we might agree with Matthew Adler that, while there are no personal rights against invalid rules, invalid rules are invalid rules and persons subject to them have the legal power to litigate their invalidity, whether or not their rights are violated. (To summarize a very complex argument, Adler argues that, for example, a flag-burner whose conduct violates an arson statute has no personal right against being punished for flag-burning when his underlying conduct is constitutionally proscribable, and that examples like these show that the deep structure of judicial review isn't about vindicating personal rights, but about invalidating invalid laws and using private litigants as a mere means to do so.)
The problem with facially invalidating vague statutes with non-vague applications is that none of these arguments seem to apply to vagueness. First, convictions for clear violations of broadly vague statutes don't improperly stigmatize any improper conduct. The unexceptionable message sent by an enhanced sentence for a crime that clearly poses a serious risk of injury is that crimes that clearly pose a serious risk of injury are bad, or warrant incapacitation.
Second, there's no epistemic objection to clear applications of vague statutes; when someone clearly violates a merely vague statute, we know, and the court has found, that he's engaged in some unprotected and punishable conduct.
Third, while narrowing a broadly unconstitutional statute to its constitutional core raises concerns of judicial legislation, narrowing a broadly vague statute to its clear applications doesn't raise the same concerns. A legislature that bans a large set of mostly protected speech acts may well not have banned the unprotected ones had it legislated constitutionally, because the reasons animating the former ban might not underwrite a much narrower piece of legislation (or be reasons on which Congress can constitutionally act). In cases of vagueness, though, a legislature that understood it was legislating vaguely would likely have merely legislated more clearly, and almost certainly would have captured, in a clearer statute, the conduct clearly captured by the vague statute. Congress's response to the invalidation of the residual clause is unlikely to be a rethinking of whether attempted rapes should enhance sentences; the clear applications of a vague statute are likely to be the very prototypes of what Congress intended to capture.
Fourth, while vague statutes, like any statutes, can be a product of illicit purposes, they're not especially likely to be, and there's certainly nothing illicit about wanting longer sentences for felons in possession of firearms with prior convictions for dangerous crimes. The problem in Johnson was solely Congress's failure to translate that reasonable policy goal into a clear legal command.
Fifth, as to an Adler-inspired argument for facial invalidation of vague statutes, even Adler concedes that vagueness challenges are a matter of personal rights - however proscribable the underlying conduct, a person convicted under a vague statute is deprived of his personal right to notice - which undercuts any Adlerian argument that people whose rights haven't been deprived by vague statutes can litigate their vagueness.
There are, I would concede, pragmatic arguments for the facial invalidation of vague statutes. These would simply be that, absent facial invalidation, courts are likely to underenforce fair-notice norms in as-applied vagueness challenges, and that the post-invalidation enactment of a statute that clearly captures what the legislature had vaguely described would create a vastly preferable state of affairs to a regime of as-applied vagueness challenges that both results (along with all manner of unpredictable results) in the underenforcement of fair notice and the underenforcement of the legislature's policies, to the extent that cases the legislature wanted to capture were captured only vaguely. I think it's probable that at least some members of the Court were thinking in these terms when they decided to facially invalidate the residual clause in Johnson.
Assessing the strength of these arguments, I think, requires some empiricism about the likelihood of a legislative response to invalidation; I'm not sure they have much force in a world where Congress is unlikely to respond. But even if we were confident about that, the pragmatic goods facial invalidation of vague statutes obtains do not require retroactivity, and may be canceled out by it. A legislative response to invalidation would enforce Congress's policy prospectively, but it will do nothing to remedy the retroactive de-enforcement of its policy. As far as retroactivity goes, the only pragmatic argument to be made is that, given the unavailability of retroactive application of procedural rules (which a rule inviting as-applied vagueness challenges probably would be*), falsely assuming that all convictions under a vague statute worked deprivations of fair notice produces more accurate, and thus, just results than denying retroactivity in all cases. That kind of argument, however, is in irreconcilable tension with the Court's decision to deny procedural rules retroactive effect in the first place, as retroactive application of procedural rules would be even more accurate than pretending those rules were violated in every applicable case.
* Note that this may be wrong. The substance/procedure divide may turn on formalism, not what the procedure of retroactive application would look like, or whether a rule generates possibilities or certainties of error, and to the extent a defendant is in jail for a crime which, as applied to him, the law does not punish (or is serving a sentence for conduct which, as applied to him, is not sentence-enhancing), the rule creating that as-applied invalidity could be deemed substantive.
The residual clause of the ACCA, if you're not familiar, provided that a felon convicted of possession of a firearm would receive a sentence with a mandatory minimum of 15 years, and a maximum of life, if he had three prior convictions for crimes which, inter alia, "involve[] conduct that presents a serious potential risk of injury to another." (Crimes counting towards this sentence enhancement also included burglary, explosives crimes, and arson, and prior to Johnson the Court had held that the risk posed by crimes captured by the residual clause must be similar to that posed by these listed offenses.) Largely because of the Court's (incorrect) insistence that the residual clause only captured crimes that "categorically" posed a serious potential risk of injury (that is, pre-Johnson the Court asked whether in an imagined ordinary case of a commission of a crime, that crime would pose a serious risk of injury, not whether the offender's actual conduct posed a serious risk of injury), the Court was unable to bring predictability to its or lower courts' interpretations of the residual clause, and abandoned the effort in Johnson, holding that the residual clause was void for vagueness.
Welch asks whether that holding is retroactive in habeas. For purposes relevant to Welch, a new rule announced by the Court applies retroactively to final convictions if it is substantive, but not if it is procedural. What does this mean? While the Court has, at times, suggested that substantive rules are those which interpret substantive constitutional guarantees, and that procedural rules are those which interpret procedural constitutional guarantees, it is tolerably clear from the Court's most fulsome majority opinion on the subject, linked to above, that what demarcates the two types of rules is their effects, not their sources. A substantive rule "alters the range of conduct or the class of persons that the law punishes," or, alters the range of conduct or the class of persons subject to a particular punishment. A procedural rule "do[es] not produce a class of persons convicted of conduct the law does not make criminal, but merely raise[s] the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise."
Oral argument revealed broad consensus among the Justices that this characterization of the substantive/procedural divide is the right one. Even the Chief Justice commented, in questioning the amicus defending the judgment below, that a rule is only "properly categorized as procedural if there's some people who could be convicted . . . legitimately." On this rubric, Johnson's invalidation of the residual clause, though an enforcement of the Constitution's guarantee of fair notice (a procedural right), was a substantive rule, because it produced a class of persons whose sentences were illegitimate, i.e., who received a sentence that the law no longer provided.
The only issue on which any of the Justices appeared less than settled was whether there were, in fact, some persons who could be constitutionally sentenced under the residual clause. Suppose that the residual clause were constitutional as applied to cases where its application was clear. As Justice Alito's dissent in Johnson pretty persuasively argued, and the Johnson majority acknowledged, the residual clause's concept of a crime that involves conduct posing a serious risk of injury, while fuzzy-edged, does have many clear applications; crimes like attempted rape, attempted arson, or attempted kidnapping all obviously involve, in the typical case, conduct that presents a serious risk of injury. Felons in possession of a firearm with a sufficient number of prior convictions of crimes, like these, that obviously pose a serious risk of injury to others, would have been on fair notice that they would be subject to the residual clause's mandatory minimum. If they received fair notice, why should their sentences be invalid? If some subset of persons sentenced under the residual clause received valid sentences, Johnson would then look like a procedural rule, one which merely raised a possibility of a unconstitutional sentence in any particular case. Some people sentenced under the residual clause would be the victims of a defective procedure -- a statute that deprived them of fair notice -- but others sentenced under the residual clause would not be the victims of a defective procedure, because as applied to their prior convictions, the residual clause did give fair notice.
The Chief Justice had a lengthy colloquy with the amicus along these lines, and eventually seemed to at least have doubts that the residual clause was unconstitutional in its clearest applications. It turns out, however, that the constitutionality of the residual clause in its clear applications was asked and answered in Johnson (which the Chief Justice joined) itself. In Johnson, Justice Alito argued, in dissent, that the residual clause wasn't vague in all its applications and therefore couldn't be facially void. Justice Scalia, who had previously made just this argument about facially invalidating vague statutes in dissent in Morales, replied for the Court that it had previously invalidated statutes as void for vagueness when those statutes had clear applications; for example, it had invalidated a statute that made it a crime for a grocer to charge an unreasonable price for food even though some prices would clearly be unreasonable. The Court ultimately held "that imposing an increased sentence under the residual clause . . . violates the Constitution's guarantee of due process," a holding which leaves no space for argument that residual-clause sentences may be constitutional in cases of prior offenses that clearly involve a serious risk of injury.
Johnson accurately characterized the Court's void-for-vagueness precedents; what sense, though, do those precedents, or Johnson, make? First, for avoidance of doubt, the Johnson Court expressly conceded it was "[t]rue enough" that "there will be straightforward cases under the residual clause, because some crimes clearly pose a serious potential risk of injury to another"; the Court only doubted how many of those straightforward cases there were. In one of these concededly straightforward cases, where is the due process violation, or if there isn't one, why should the defendant be able to assert the due process rights of others?
One answer is Henry Monaghan's famous "valid rule requirement," first advanced in a defense of First Amendment overbreadth doctrine - that people have a constitutional right not to be subjected to governmental sanctions under an invalid rule of law. Monaghan's arguments for, or really assertions of, the valid rule requirement have been the subject of what I view as fairly devastating criticism, but there is certainly some intuitive appeal to the claim that, e.g, after Citizens United someone who makes constitutionally proscribable inciting remarks can't be punished under a statute that bans all electioneering communications funded by certain sources, or that, after Heller, someone who owns a submachine gun can't be punished under a statute that bans possession of any gun. At a certain point, a statute that is broadly unconstitutional in most applications looks like it should be unconstitutional in all.
Thumbnail sketches of a few arguments for that intuition would go as follows. Perhaps a conviction grounded on, for example, the mere fact of gun possession improperly stigmatizes the defendant for engaging in protected conduct, or improperly expresses to the community that protected conduct is wrongful. Perhaps the trouble is simply that convictions under statutes like these don't require proof of unprotected conduct; whether or not it happened, a court didn't have to find it. Perhaps the reason that statutes like these can't merely be judicially narrowed to their constitutional applications, and upheld in such applications, is that we have no way of knowing whether the legislature would have regulated the constitutional applications had it realized that what it was doing was unconstitutional. (This is not, I think, just a severability concern, though it sounds like one.) Perhaps the problem with many, though not all, broadly unconstitutional statutes is their illicit purpose. Finally, we might agree with Matthew Adler that, while there are no personal rights against invalid rules, invalid rules are invalid rules and persons subject to them have the legal power to litigate their invalidity, whether or not their rights are violated. (To summarize a very complex argument, Adler argues that, for example, a flag-burner whose conduct violates an arson statute has no personal right against being punished for flag-burning when his underlying conduct is constitutionally proscribable, and that examples like these show that the deep structure of judicial review isn't about vindicating personal rights, but about invalidating invalid laws and using private litigants as a mere means to do so.)
The problem with facially invalidating vague statutes with non-vague applications is that none of these arguments seem to apply to vagueness. First, convictions for clear violations of broadly vague statutes don't improperly stigmatize any improper conduct. The unexceptionable message sent by an enhanced sentence for a crime that clearly poses a serious risk of injury is that crimes that clearly pose a serious risk of injury are bad, or warrant incapacitation.
Second, there's no epistemic objection to clear applications of vague statutes; when someone clearly violates a merely vague statute, we know, and the court has found, that he's engaged in some unprotected and punishable conduct.
Third, while narrowing a broadly unconstitutional statute to its constitutional core raises concerns of judicial legislation, narrowing a broadly vague statute to its clear applications doesn't raise the same concerns. A legislature that bans a large set of mostly protected speech acts may well not have banned the unprotected ones had it legislated constitutionally, because the reasons animating the former ban might not underwrite a much narrower piece of legislation (or be reasons on which Congress can constitutionally act). In cases of vagueness, though, a legislature that understood it was legislating vaguely would likely have merely legislated more clearly, and almost certainly would have captured, in a clearer statute, the conduct clearly captured by the vague statute. Congress's response to the invalidation of the residual clause is unlikely to be a rethinking of whether attempted rapes should enhance sentences; the clear applications of a vague statute are likely to be the very prototypes of what Congress intended to capture.
Fourth, while vague statutes, like any statutes, can be a product of illicit purposes, they're not especially likely to be, and there's certainly nothing illicit about wanting longer sentences for felons in possession of firearms with prior convictions for dangerous crimes. The problem in Johnson was solely Congress's failure to translate that reasonable policy goal into a clear legal command.
Fifth, as to an Adler-inspired argument for facial invalidation of vague statutes, even Adler concedes that vagueness challenges are a matter of personal rights - however proscribable the underlying conduct, a person convicted under a vague statute is deprived of his personal right to notice - which undercuts any Adlerian argument that people whose rights haven't been deprived by vague statutes can litigate their vagueness.
There are, I would concede, pragmatic arguments for the facial invalidation of vague statutes. These would simply be that, absent facial invalidation, courts are likely to underenforce fair-notice norms in as-applied vagueness challenges, and that the post-invalidation enactment of a statute that clearly captures what the legislature had vaguely described would create a vastly preferable state of affairs to a regime of as-applied vagueness challenges that both results (along with all manner of unpredictable results) in the underenforcement of fair notice and the underenforcement of the legislature's policies, to the extent that cases the legislature wanted to capture were captured only vaguely. I think it's probable that at least some members of the Court were thinking in these terms when they decided to facially invalidate the residual clause in Johnson.
Assessing the strength of these arguments, I think, requires some empiricism about the likelihood of a legislative response to invalidation; I'm not sure they have much force in a world where Congress is unlikely to respond. But even if we were confident about that, the pragmatic goods facial invalidation of vague statutes obtains do not require retroactivity, and may be canceled out by it. A legislative response to invalidation would enforce Congress's policy prospectively, but it will do nothing to remedy the retroactive de-enforcement of its policy. As far as retroactivity goes, the only pragmatic argument to be made is that, given the unavailability of retroactive application of procedural rules (which a rule inviting as-applied vagueness challenges probably would be*), falsely assuming that all convictions under a vague statute worked deprivations of fair notice produces more accurate, and thus, just results than denying retroactivity in all cases. That kind of argument, however, is in irreconcilable tension with the Court's decision to deny procedural rules retroactive effect in the first place, as retroactive application of procedural rules would be even more accurate than pretending those rules were violated in every applicable case.
* Note that this may be wrong. The substance/procedure divide may turn on formalism, not what the procedure of retroactive application would look like, or whether a rule generates possibilities or certainties of error, and to the extent a defendant is in jail for a crime which, as applied to him, the law does not punish (or is serving a sentence for conduct which, as applied to him, is not sentence-enhancing), the rule creating that as-applied invalidity could be deemed substantive.
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