Congress neglected its legislative authority again. SCOTUS has a chance to fix it.
On Monday, Pacific Legal Foundation filed an amicus brief in support of Hernán Lopez and Full Play Group in a combined case: Full Play Group, S.A. v. United States, et al. and Lopez v. United States, et al. If the Supreme Court grants certiorari for these combined cases, the Court can address Congress’s continual failure to exercise its constitutional responsibility as the chief lawmaking body. As the simple Schoolhouse Rock music video reminds us, Congress makes law, not judges.
In 2023, Full Play Group and Hernán Lopez were convicted as part of a federal probe into international soccer corruption. Both were convicted for conduct related to bribes made to officials in South American soccer federations. However, neither was convicted of actual bribery. Instead, both were convicted under the controversial “honest services” fraud statute.
In fact, prior to the Second Circuit’s decision here, no court had ever held that “honest services fraud” included foreign commercial bribery. As counsel for Hernán Lopez articulated, “[w]hile Congress criminalized foreign bribery, it stopped with foreign government officials,” leaving people and groups like Lopez and Full Play Group out of the picture.
Honest Services
Following a mail-fraud case in 1987, Congress enacted a new, one-sentence criminal prohibition, stating that all schemes or artifices of fraud depriving a person of honest services are considered criminal. However, Congress never provided a clear definition of “honest services.”
To this day, “no one knows what ‘honest services fraud’ encompasses,” Justice Neil Gorsuch wrote in a 2023 concurrence. This latest certiorari petition asks the Supreme Court to revisit the statute and declare it unconstitutionally vague. That would return legislative authority where it belongs and make Congress fill in the gaps.
Since Congress included the honest services requirement into criminal prohibitions on fraudulent action without a definition, prosecutors and courts have been indirectly delegated authority to interpret the section as they choose. If a definition is lacking, which it is, the law is indiscernible, making it almost impossible for individuals to abide by the statutory standard.
Ten years ago, the Supreme Court had the opportunity to address the vague statute. While the Court tried to provide a textual interpretation, there was no ordinary or term-of-art meaning to fall back on. Rather than saying Congress failed to do its job, the Court attempted to repair the statute.
But the statute remains unconstitutionally vague. Now, the Court has another opportunity to do what it should have done the first time: return the statute to where it belongs—with Congress.
Separation of Powers
Since the Founding, there is an expectation that laws are “prospective, public, and knowable,” Wilson Freeman wrote in PLF’s amicus brief, citing a prior concurrence by Justice Gorsuch.
If someone is criminally charged, like Lopez and Full Play Group, they should know that their actions are criminal in nature. But if a statute, like the one at issue, fails to clearly define what a crime is, then the law cannot be construed as generally public or knowable.
“A vague federal crime statute poses a threat to everyone,” Freeman said. “In today’s environment, where trust in federal criminal authorities is under constant attack, our system must be doubly vigilant against arbitrary criminal power.”
Vague statutes allow prosecutors, juries, and judges to define what they think is “bad” until courts step in to say otherwise. “The constitutional cure must be legislated clarity,” not haphazard judicial repairs.
As Justice John Marshall poignantly remarked, “It is emphatically the province and duty of the judicial department to say what the law is,” not what it should be. Congress’s failure to define statutes is an abdication of its constitutional authority and threatens the liberty of everyone, not just that of Lopez or Full Play Group.
This new set of cases—Full Play Group, S.A. v. United States, et al. and Lopez v. United States, et al.—allows the Court to properly define the branches of government, establishing Congress as the chief lawmaking body.
