Legal Communication & Rhetoric: JALWD
We are so used to Congressional gibberish that we take it for granted as though it were caused by nature. Congress doesn’t know how to create logically coherent statutes.
An example is the Vacancies Reform Act of 1998. If, while violating the Act, a President purportedly appoints a person — perhaps to be an Acting Attorney General or Acting Deputy Attorney General — every decision and action of that person is void because the person does not actually hold the office. The Act is crystal-clear that such a person would have no power, for example, to fire a Special Counsel. But the Act is far less than clear on issues concerning the circumstances that might constitute a violation. Congress enacts so much gibberish that we have become accustomed to waiting patiently for courts to tell us, years after enactment, what Congress’s words mean. Not only is that wasteful, but in a national crisis, it can be a disaster. We must be able to know instantly, within minutes, whether a purported appointment violates the Act.
The article also examines Congress’s drafting inconsistencies, illustrated by, among other things, a Tax Code section that criminalizes Presidential interference in tax audits.
The federal obstruction of justice statutes are incoherent. Reading them is like wading through glue. We can know what they mean only because courts have spent more than 130 years trying to figure them out. (As an exercise in clarity, I redrafted them, cutting their word count in half without changing the meaning. The redraft, in one of the article’s appendices, will help the reader follow the action as various people are exposed, indicted, and tried.)
The article hypothesizes some of the causes of Congressional gibberish. The main hypothesis is that legislating is two functions — creating law and enacting it. Creating law is designing it so that it works. Enacting is deciding that words will become law. Legislators are good at the enacting part but have few, if any, law-creation skills. Judging by their output, almost no one in Congress has the most important of law-creation skills — simplicity.
Richard K. Neumann Jr.,
Why Congress Drafts Gibberish, 16 LEGAL COMM. & RHETORIC: JAWLD 111
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/1342