Who will decide which laws are too vaguely worded to be constitutional? By that standard, the courts could invalidate a vast number of laws.
Some conservative analysts are unwisely praising Supreme Court Justice Neil Gorsuch for joining the court's four committed liberals to keep a felonious immigrant from deportation.
These estimable analysts, including columnist George Will and the Wall Street Journal editorial board, give too much credit to Gorsuch's elegant concurring opinion, but far too little credit to the powerful dissenting opinions by Justice Clarence Thomas and the other three conservative (or sometime-conservative) justices.
I would note that Will is a libertarian, not a conservative, and the WSJ editorial board often leans that direction as well.
The rulings by Gorsuch and the liberals could let the high court snatch too much authority, with too little justification, to invalidate too many laws or portions of laws duly passed by Congress and the president. They involve a misapplication of a 2015 precedent that itself was of dubious merit. And in the name of legal clarity, they could throw much of the U.S. Criminal Code into confusion.
In the Sessions v. Dimaya case decided last week, the liberals and Gorsuch applied a somewhat controversial doctrine known as "void for vagueness," meaning that laws not clear enough to be predictably applied should be declared constitutionally invalid.
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Any educated layman can find the contract clause, the First Amendment, or the commerce clause in the Constitution, but where, pray tell, is a broad-based "laws-shall-not-be-vague" clause? And to the very narrow extent that Thomas admits that the Constitution does inherently adopt English common-law strictures against vagueness, Thomas argues that those strictures "must be limited to cases in which the statute is unconstitutionally vague as applied to the person challenging it."
That last point is discussed in my post on the Dimaya case last week.
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