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.)