Creating Ambiguity in the Void for Vagueness Doctrine by Avoiding a Vagueness Determination in Review of Federal Laws

In June 2010, the United States Supreme Court issued two decisions that each addressed whether a federal statute was unconstitutionally vague, Holder v. Humanitarian Law Project, 56 U.S. 1 (2010) and Skilling v. United States, 56 U.S. 358 (2010). These decisions were issued within three days of each other. In both decisions, the Court determined that the challenged federal statute should not be invalidated in its entirety as unconstitutionally vague. This result is not surprising as the Court rarely invalidates federal statutes as impermissibly vague. Yet the void for vagueness analysis the Court articulated in each case was quite different.Currently, a law will be declared unconstitutionally vague if it either fails to provide fair notice to ordinary individuals or encourages the possibility of arbitrary or discriminatory enforcement. The Court in Humanitarian Law Project engaged in an as-applied review and relied only on the fair notice prong to determine that the federal statute was not unconstitutionally vague. Conversely in Skilling, the Court interpreted the doctrine as requiring a facial review and as allowing the Court to create a novel interpretation of the statute that consequently satisfied both the fair notice and the fair enforcement prongs. As discussed in the article, these differences are representative examples of a broader divergent approach by the Court to the void for vagueness doctrine. Thus, even knowing that the Court will avoid invalidating the federal law, it is difficult to predict how the Court will interpret the void for vagueness doctrine to reach that result.This article examines the recent United States Supreme Court opinions in the context of the Court’s previous void for vagueness decisions discussing how the doctrine has traditionally been applied and how the current opinions follow or deviate from this precedent. This analysis demonstrates that uncertainty exists within the doctrine because the Court has not provided an objective or consistent standard that governs the fair enforcement determination, and it has not provided a consistent rationale explaining the Court’s choice to review the challenged law either on its face or as applied.This article suggests that the Court’s inability to articulate a standard for the fair enforcement analysis is because in practice this analysis has often been a continuation of the fair notice analysis. The article thus proposes that the void for vagueness standard consist of one notice requirement that asks whether ordinary citizens and law enforcement have fair notice of what the law prohibits. It argues that such a standard will strengthen the Court’s ability to use the doctrine to ensure both fair notice and fair enforcement. It is also suggested that in conducting this proposed fair notice analysis, the Court should initially determine whether the law is unconstitutional as applied to the litigant before determining whether the law should be invalidated on its face. An initial as-applied review is consistent with general standing requirements, the canon of constitutional avoidance, and recent precedent. These suggestions should result in a more consistent, coherent approach to the void for vagueness doctrine without sacrificing the Court’s ability to use the doctrine as a buffer for constitutional rights.