A Stitch in Haste

To review:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warnings. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.

--Grayned v. City of Rockford, 408 U.S. 104 (1972), quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489 (1982)

Armed with that, let's review the Federal Price Gouging Prevention Act, H.R. 1252:

It shall be unlawful for any person to sell, at wholesale or at retail in an area and during a period of an energy emergency, gasoline or any other petroleum distillate ... at a price that --

(A) is unconscionably excessive; and

(B) indicates the seller is taking unfair advantage of the circumstances related to an energy emergency to increase prices unreasonably.

Under this bill, every participant in the petroleum industry, from the franchisee of the corner gas station to the CEO of Exxon, is supposed to instantly know, under threat of civil and criminal penalties, the exact legal meaning of the following words:

• unconscionably
• excessive
• unfair
• emergency
• unreasonably

Not to mention similar terms deeper in the bowels of the bill: grossly, readily, usual, seasonal.

And if he doesn't know the exact legal meaning? If he takes a non-conspiratorial, non-insidious guess that happens to be wrong? Then too bad so sad: he will incur civil and criminal penalties that make antitrust violations (another hopeless swamp of gobbledygook) look like a parking ticket.

One becomes perplexed as to which approach to take when reading such a demented bill: To damn these politicians for not being economists (i.e., for not expecting them to know better), or to damn them for being lawyers (i.e., precisely for expecting them to know better).

This is not "reasoned statecraft." This is not "legislating from experience." This is not "giving experts the tools they need." This is pandering to the Great Unwashed (and the Great Uneducated). It is the Politics of the Two-Digit IQ.

One last thought:

Men of common intelligence cannot be required to guess at the meaning of the enactment.

--Winters v. New York, 333 U.S. 507 (1948)

We are not dealing with "men of common intelligence." We are dealing with politicians. That's precisely the problem.

And remind me again why judges should defer to these intellectual and moral defectives?

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One postscript:

The President may issue an energy emergency proclamation [that] may include a period of time not to exceed 1 week preceding a reasonably foreseeable emergency.

Translation: A merchant can be charged with criminal "gouging" for conduct that occurred before the opportunity to "gouge" even existed — he can somehow "pre-gouge." Kafka would be impressed.

If the Ex Post Facto Clause had any teeth left nowadays, then I would invoke it here. But why bother? Like so many of the Constitution's intended protections, the clause is essentially a nullity today.

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More thoughts at Reason Magazine, Hodak Value, Econbrowser, Knowledge Problem.