Is it illegal? You’ll find out after you’re arrested
Author: Timothy Sandefur
Forbes.com has published my editorial on the case of Skilling v. United States, currently being considered by the Supreme Court. That’s the case against former Enron CEO Jeffrey Skilling, who was convicted of several charges arising from that firm’s collapse years ago. One of the laws under which Skilling is charged is the “honest services fraud” statute—a law that basically makes it illegal to be dishonest. As I write in the editorial,
The statute's elastic language makes this a real threat. Last year Justice Antonin Scalia pointed out that if taken literally the honest services law would make it a crime to call in sick to work and go to a ball game instead. Other federal courts have tried to improvise: In 2003 a team of seven judges wrote a long decision patching together a complicated test for determining whether a person is in violation. But six judges on that same court dissented. How can average Americans be expected to understand the law if even federal appellate judges are divided on its meaning?
Say what you will about Skilling, laws that are so vague are a major threat to the security of every citizen, and give a blank check on power to prosecutors and executive officials. That’s why PLF filed a brief in the case, joined by the Cato Institute, arguing that the “honest services fraud” statute is unconstitutionally vague.
Sadly, many other laws—including such non-statutory laws as the “public nuisance” theory—are so ambiguous that nobody can know what they mean before being charged with violating them. This violates the crucial constitutional principle of “due process of law,” as Daniel Webster explained almost 200 years ago in his famous argument in the Dartmouth College case:
[Blackstone says law] ‘is a rule; not a transient sudden order…but something permanent, uniform and universal…. By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial…. ‘Is that the law of the land,’ said Mr. Burke, ‘upon which, if a man go to Westminster Hall, and ask counsel by what title or tenure he holds his privilege or estate, according to the law of the land, he should be told, that the law of the land is not yet known; that no decision or decree has been made in his case; that when a decree shall be passed, he will then know what the law of the land is?’
Earlier this month, I was in Washington, D.C., to hear the arguments in the Skilling case, and I shared my thoughts in this podcast: