Surprising legislative, judicial powers are derived from sheer vagueness

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Once in a while, a piece of legislation is knocked down by the courts on the grounds of vagueness. But this is the exception. It is not well-known that vague laws and regulations are the ramrods of power-hungry politicians, bureaucrats and jurists to expand their administrative powers, and thus swell the overall power of government.

The Georgia Senate Chambers is shown littered with paper after the conclusion of the legislative session at the Georgia State Capitol on March 20 in Atlanta. An increasing vagueness in some legislation is opening unexpected doors to government power.  JASON GETZ/ASSOCIATED PRESS
The Georgia Senate Chambers is shown littered with paper after the conclusion of the legislative session at the Georgia State Capitol on March 20 in Atlanta. An increasing vagueness in some legislation is opening unexpected doors to government power.

In other words, vagueness enables the doctrine of “implied powers” to reach its full splendor, for legal pundits to employ the depths of their imaginations in searching vague legislation for power to achieve their political objectives.

SINCE THE CONCEPTS of power and vagueness are entwined, the headline for this column could well have been “Vagueness spells power.” Nevertheless, a surprising proportion of legislation is vague, incomprehensible or otherwise lacking in expository clarity. Although well aware of this criticism, authors of these passages (the wordsmiths) willingly transfer to unelected bureaucrats and/or judges, the “interpreters,” the function of defining and explicating their passages into clear language. They do this not because they are indolent writers, but because it affords them an opportunity to grab new powers, authority that may not have been envisioned when the legislation was approved.

After enactment, interpretations, rules, regulations and orders are delivered, consistent with the political beliefs of the enactors, bureaucrats and jurists. These bits and pieces of explication represent added power, jointly shared by politicians (including the president of the United States), bureaucrats and jurists. In drafting bills, vagueness becomes a key skill that politicians use to unlock the door to added dominion.

But we rarely pause to grasp the immense power, both potential and actual, these enablers are developing and exercising, power made available by the artistry of writing vague statutes. This process is neither secret nor mysterious, but difficult to sense, to measure, to identify and to get a handle on, which is one reason it is so insidious. But we easily sense its empirical significance and any progress in measuring it would be warmly welcomed.

MICHAEL MUKASEY, a former U.S. attorney general, in testimony before the House Judiciary Committee, declared that the Foreign Corrupt Practices Act is too vague, allowing too much interpretive leeway for the Justice Department and the Securities and Exchange Commission. In partial defense, the Justice Department responded by saying that it currently provides extensive guidance on the law, which is precisely consistent with our argument. Because of the extent of the “extensive guidance” – which may be more of an euphemism for extending the law rather than an explicator of it – more power is acquired by legislators and bureaucrats.

Politicians, hardened legislative aides and ardent lobbyists have long learned of the benefits of vagueness. It not only enables bills to be enacted that could not otherwise pass muster, but it opens up an unforeseen treasure of programs, rights and entitlements that flow from a sea of interpretations provided by the interpreters. While dangerous in itself, it leads also to unbounded litigation, unending turmoil and numerous disputes.

Enhancement of power is in the best interests of politicians. From the point of view of maximizing self-interest, it is rational behavior. It’s not only rational, but consistent with improving their chances of re-election, and scoring ideological gains in adopting their preferred public policies.

It is easy to say that the judiciary should denounce these legislative atrocities as being unconstitutionally vague. Reliance on the judiciary, however, to block such adventures cannot be viewed with optimism. Witness the judicial history of the Commerce Clause, and the fervor with which some judges seek to express their own interpretations.

VAGUENESS ALLOWS justices to more easily side step their role in determining the intent of legislators. Legislators merely insert into the record the desired words of intent. And when the legislation is challenged, the biased juror merely trots out the required words from the record, and voila! There is the sought after legislative intent. These words may or may not have any relevance to the actual legislative process.

A fine example of this legislative art form is the Financial Regulatory Reform Act of 2010 (later the Dodd-Frank Act). Even though consisting of several hundred pages, it provides unbounded opportunities for mischief by directing the development of regulations to implement its vague, incomprehensible language. This enables itchy-fingered regulators to let their imaginations run wild, hampered only by an occasional judicial rebuff in the exercise of newfound, raw power. Indeed, at the federal level vagueness in combination with the “commerce” clause have enabled politicians to obtain power beyond their wildest dreams.

A similar expansionary power process can take place at the state level. One curb to its growth, however, fortunately occurs when it collides with an overreaching federal expansion.

This creeping, and sometimes explosive, expansion of federal power leads thoughtful people to worry about the means to employ to curb it. Reversing these incursions is not easy. Doubtless, legislators will see this avenue as an added source of power, and will be very reluctant to surrender it. Like an epidemic, however, the topic needs our attention.

Indeed, let us hope we have not spawned a monster, which we naïvely believed could be controlled but brings forth untold harm.

(The writer is a professor emeritus of financial economics at the University of Georgia. He lives in Aiken, S.C.)

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deestafford 04/05/14 - 11:46 pm
This one of the most serious threats...

This is one of the most serious threats to our liberty and freedoms and is something James Madison warned us about when writing laws. Basically, he said that laws should not be written so complicated and voluminous that they could not be readily understood by the populace.

I read the other day that each law averages 51 regulations to implement it. Of course, some have hundreds of implementing regulations. If one ever reads a law they would discover how complicated it is written. Many times it will just refer to a paragraph in a sentence in some obscure other law which refers to some other law.

Another thing we need is to have every law have an expiration time of say four years. At the end of that time the law will automatically expire unless it was renewed by vote and not voice vote. If we made passing laws more difficult by making them clearer and with expiration dates perhaps there wouldn't be so many passed.

There is a story about Napoleon's corporal. It was said that Napoleon had a corporal standing outside his tent and before any order was sent to the generals it was read by the corporal. If Napoleon's corporal could understand completely the order Napoleon thought his generals could also and there would be no misunderstanding what he wanted them to do. Maybe, our congress should have some "Congressional corporals."

The power in our government is not with whom we elect---it is with the bureaucrats who write the regulations and implementing instructions. Keep in mind the majority of those bureaucrats are statists who vote Deomocratically.

Bodhisattva 04/06/14 - 08:26 am
The Dodd-Frank Act doesn't do

The Dodd-Frank Act doesn't do squat. " A study by Duke Law Professor Kim Krawiec demonstrated how lopsided the lobbying on the Volcker Rule was. She found that, between July 26, 2010 and July 7, 2011, 93.6 percent of the meetings with commissioners and staff of the five regulators charged with writing the rule were with financial institutions, law firms representing financial institutions, or financial institution trade associations, lobbyists, or policy advisors. Only 3.2 percent represented labor or public interest groups; another 3.2 percent came from congressional staff members."(Forbes)
Couple that with the GOP intentionaly underfunding every regulatory agency so they couldn't write the regulations, or actually do the job of regulating and there's no way to police the crooks that caused the failures and recession that we're barely climbing out of.
The GOP HATED the idea of a Consumer Financial Protection Bureau, and someone to look after the people instead of the corporations, that they refused to even hold a vote for a Director. By God we can't have a bureau looking after the interests of ordinary citizens. They aren't the ones that stuff their campaign chests.
The only way we can be assured that we won't have a crash like we did under Bush is to reinstate fully all of the Glass–Steagall Act. It protected the country from a crash since 1933. Slowly it was chipped away at, slowly in the 1960's, then Reagan began his assault on regulations and endangering the country even more, until it was killed by Phil Gramm and the Gramm–Leach–Bliley Act, which Clinton should have had the guts to veto. Now the country is at the mercy of the big banks, still with no protections from the next big crash. Dr. Beranek is nothing more than an apologist for those that crippled the economy, and if he had his way, he'd allow them to have even more power and less regulations to do it all over again. You'd think he'd learn, but then some people swoop in and make big gains from everyone else's losses.

ymnbde 04/06/14 - 09:28 am
goodness, bod... have you

goodness, bod... have you reached your "blame Bush" quota?
now you have to start on Reagan?
Jimmy C started the housing crisis with a "vague" (Mr. Beranek's article is about that word) notion of "fairness" in lending to minorities
never mind that his government caused minorities to be so badly educated that they could not get jobs that paid well enough to meet the criteria for getting loans
(that isn't "vague", as illustrated by this:
do ya think kids from those schools are gonna get mortgages?)
and soon Jimmy C's "fairness" became "vague" assurances to the banks, who for centuries had loaned money under the risk of not getting it back, that fannie and freeddie would assume any bad loans, thus undermining the traditional risk/reward analysis which had always effectively controlled those greedy bankers
democrats started the ball rolling on the housing crisis
if you want to read an actual book about it
Reckless Endangerment, by Gretchen Morgenson
tells all about it...
so bod, you are angry at the wrong people
(a form of O'anger)
it was big O'government
and the "vagueness" of their financial regulations
what caused the crisis
and your heroes Dodd and Frank should have adjoining cells

Darby 04/06/14 - 12:21 pm
"have you reached your

"blame Bush" quota? now you have to start on Reagan?"

I think so. Have you noticed that some folks are just a veritable warehouse of worthless and biased information?

corgimom 04/06/14 - 07:39 pm
Reagan was not the "great

Reagan was not the "great President" that many think him to be.

Take a long look at the enormous homeless problem that we now face- directly attributable to Ronald Reagan and his terrible idea of closing the mental hospitals.

Not everybody was enamored of him when he was Governor of California, either.

ymnbde 04/06/14 - 09:39 pm
oh, corgi... do people still believe that?

it's been refuted so many times... Reagan did not close the mental hospitals... the main culprits are the aclu, arguing for the "rights" of the mentally ill during the mass craziness of the '60's, and the Kennedy's over concerns about the harm done to their mentally ill sister by a mental hospital.
and no, not "everyone" has ever been enamored of "anyone", ever
but lots of people were enamored of Mr. Reagan, and lots still are
but regardless, he did not cause the homeless problem.
The aclu did

Little Lamb
Little Lamb 04/06/14 - 10:34 pm

Speaking of former President Ronald Reagan, Corgimom posted:

Not everybody was enamored of him when he was Governor of California, either.

Let's face it; not everybody is enamored with anybody. That's a fact we have to live with.

Little Lamb
Little Lamb 04/06/14 - 11:06 pm
By the way . . .

. . . good column, Dr. Beranek.

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