“Vigilantism”
Jan. 7th, 2022 02:48 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
ndrosenDahlia Lithwick has an article in Slate condemning a new era of political vigilantism, with which I disagree. She has good reason to describe the January 6 insurrectionists as vigilantes, but her definition of vigilantism becomes extraordinarily expansive. She treats Justice Alito as encouraging vigilantism when he takes the view that the Second Amendment protects the right of ordinary people as well as celebrities to possess weapons for self-defense, this in the context of New York City’s gun laws being especially enforced against minorities.
That is a stretch, but she also considers it encouragement of vigilantism to take the non-delegation doctrine seriously, or to criticize Chevron deference, the precedent that courts should give deference to government agencies’ interpretations of the laws they enforce. As to the first, the Constitution gives all federal legislative power to Congress, and does not say that Congress may delegate this power to unelected bureaucracies.
As to the second, agencies may “interpret” a law one way or a different way according to which party is in power, or according to some official’s idea of what the law ought to be, and I do not believe that courts owe these interpretations special deference. If John Doe is on trial for violating a law against X, and his defense is that what he did was X prime, which is not the same as X, the judge has no duty to defer to the prosecution’s interpretation that the law covers X prime. He may do so, but is not required to, and the Rule of Lenity, as I understand it, says that in dubious cases, a criminal defendant should be given the benefit of the doubt regarding the meaning of the law. If the Department of Education is demanding that schools and universities comply with its interpretation of the law, rather than with the actual words of the statute, or some agency is trying to fine a citizen or a business for contravening its current interpretation, rather than the black letter law, I do not see why the courts ought to give the bureaucracy deference.
Ms. Lithwick seems to regard upholding the rule of law and a classically liberal view of the Constitution as taking the side of vigilantism. I see the matter otherwise.
That is a stretch, but she also considers it encouragement of vigilantism to take the non-delegation doctrine seriously, or to criticize Chevron deference, the precedent that courts should give deference to government agencies’ interpretations of the laws they enforce. As to the first, the Constitution gives all federal legislative power to Congress, and does not say that Congress may delegate this power to unelected bureaucracies.
As to the second, agencies may “interpret” a law one way or a different way according to which party is in power, or according to some official’s idea of what the law ought to be, and I do not believe that courts owe these interpretations special deference. If John Doe is on trial for violating a law against X, and his defense is that what he did was X prime, which is not the same as X, the judge has no duty to defer to the prosecution’s interpretation that the law covers X prime. He may do so, but is not required to, and the Rule of Lenity, as I understand it, says that in dubious cases, a criminal defendant should be given the benefit of the doubt regarding the meaning of the law. If the Department of Education is demanding that schools and universities comply with its interpretation of the law, rather than with the actual words of the statute, or some agency is trying to fine a citizen or a business for contravening its current interpretation, rather than the black letter law, I do not see why the courts ought to give the bureaucracy deference.
Ms. Lithwick seems to regard upholding the rule of law and a classically liberal view of the Constitution as taking the side of vigilantism. I see the matter otherwise.
