Vagueness, the Fourteenth Amendment, and The Craig Ferguson Show

Tonight will be the first time I do not listen to the Presidential Address to Congress since high school. But I cannot listen to a man lie and degrade millions of people in one of the most important buildings in modern world history. I cannot listen to someone who will talk about destroying the system that helps so many Americans. I could not watch the Republican debates for the same reason.

My Country – Void for Vagueness

Under the Fourteenth Amendment, a government cannot write a law “so vaguely as to be a trap for the unwary.” On February 28, 1921, the Supreme Court stuck down a law because it did not provide an ascertainable standard of guilt. Congress had made it a crime for a person to make any unjust or unreasonable rate or charge.  Since no one could determine in advance what price a court or a jury would hold to be unjust or unreasonable, the Supreme Court stuck the law down for vagueness. (Weeds, Inc. v. United States, 255 U.S. 109 (1921)).

In another example, Douglas notes an Oklahoma law. The law punished contractors with the state who paid their workmen less than the current rate of per diem wages in the locality where they performed the work. The Supreme Court held the law void for vagueness because

• the world “locality” was too obscure and
• “current rate of wages” indicated a range from minimum to maximum without indiciating which rate was meant.

Skilling v. United States, 130 S.Ct. 2896 (2010)

In a more modern case, Skilling v. United States, the Supreme Court continued to debate vagueness. Back when I was in college, the big financial crisis was the Enron scandal. As the business spiraled into bankruptcy after high stock prices, the government needed to understand what happened. “The Government’s investigation uncovered an elaborate conspiracy to prop up Enron’s short-run stock prices by overstating the company’s financial well-being. In the years following Enron’s bankruptcy, the Government prosecuted dozens of Enron employees who participated in the scheme,” including former CEO Jeff Skilling.

Skilling argued that the honest-services statute, §1346, was unconstitutionally vague.  The statute read:

[T]he term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.

The argument stated that first the phrase “the intangible right of honest services,” did not adequately define what behavior it bars. Second, Skilling alleged, §1346’s “standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections,” thereby “facilitat[ing] opportunistic and arbitrary prosecutions.”

Holding the Honest-Services Statute Void for Vagueness

According to case law, to satisfy due process, “a penal statute [must] define the criminal offense

1. [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and
2. [2] in a manner that does not encourage arbitrary and discriminatory enforcement.”

The Court noted that the void for vagueness doctrine embraces these requirements.

However, in the end, the Court did not state the law was unconstitutional as vague. Instead, the Court narrowed the holding to state that the meaning of the statute properly confined law enforcement to cover only bribery and kickback schemes.

In a concurrence by Justice Scalia, he went further and noted that the section should be stricken. Congress can say what they mean in a new law. But this vagueness should not be allowed.

Daily Briefing

• Donald Trump talks about everything – unless it is a white guy shooting up a mosque or a racist shooting innocent Indian men, one who died. His silence is disgusting.
• Brandon Rude is the son of great comic artist Steve Rude. He needs some money to cover medical expenses. Please donate if you can. Additionally this is why health insurance matters. Many people are self-employed and do not get the luxury of workplace sponsored subsidized health insurance.
• Trump could allow illegal immigrants to stay, according to what he told news anchors. I am sure his base will love it. There is no way Steve Bannon allows this.
• What have Republicans accomplished? Congrats!
• “What is at stake is more than LGBT rights or abortion rights. It’s our right under the Constitution to decide who we are and to make the most intimate and personal decisions in our life without government interference — and to do so with dignity.”
• Capehart is right. Why do Democrats love to fight among themselves on stupid issues?
• The White House went after Alex Isenstadt from Politico. This attack on the press continues to disgust me.
• Warren Buffet and Bill Gates need to continue making me proud of this country.
• Donald Trump sold his first condo – as President.
• Automation will completely change our economy. How will America survive?
• Eichenwald writes a bit hyperbolic but this is an interesting take on how Trump help ISIS.
• Steven Miller and the fact that anyone listens to him may be the scariest person to enter American politics in my lifetime. Those of us who believe in a free flow of information and the goodness of people need to defeat this force of anger and ignorance. Evidence of his dumbness though – cannot understand how health care works.
• Betsy DeVos confused segregation with school choice. Again, ignorance seeps out of this administration. Once this ignorance affects people, they will not be able to hide behind their turns of phrase.

Daily Distraction

Yesterday, The Craig Ferguson Show started on SiriusXM. The first guests were Sarah Paulson and Josh Robert Thompson. I enjoyed both hours. Except for one thing: the SiriusXM app and web-player. For something that costs me a pretty penny every year, I wish they spent more money on their products. I do not want to have to sit in my car to listen. Additionally, I would like to be able to start the episode over when I want. I pay for the system and I would like to fast forward and rewind.

Otherwise, it’s wonderful to listen to the guy that I watch on Celebrity Name Game (which I believe ends this week) and on the Late Late Show. Except now, he gets to spend hours with the particular guests talking about anything. I will try to listen every day, but 6-8 is generally when I start dinner and eat dinner. The app and web-player seem to work best if I just pause it, so I suppose I will start the app and then pause it.

Either way, I have my daily fix.

One Sentence Story

I’ll even give you a punch for your friend.