Defense Production Act Ban on Accumulating “Scarce Materials” to Resell for More Than “Prevailing Market Prices” Not Unconstitutionally Vague

Today’s announcement is in U.S. v. Topouzian (N.D.Ill.); I find it to be true, however one might feel about their wisdom or propriety.

The Information in this case charges the defendant with having willfully violated the Defense Production Act of 1950, based on his allegedly intentional accumulation of approximately 79,160 N-95 respirator masks, with the intent to resell the masks at prices in “excess of prevailing market prices” {despite having received warnings from law enforcement}. These types of masks were designated by the President under the Act as “scarce materials” due to the ongoing pandemic….

According to the Information, the defendant was accused of accumulating approximately 79.160 N-95 masks between March 6, 2020 and April 7, 2020. Prices ranged from $4.27 up to $7 each mask with an average price of $5.08. However, PriorIn response to the pandemic N-95 and similar masks were not sold by defendant’s business. Between March 29 and April 22, 2020, the defendant is charged with having sold approximately 11,492 of the masks to customers at a markup of approximately 185% to 367% per mask—in some cases the masks were sold for $19.95 for a single mask….

Insistence by the defendant that there is no numerical or specific definition of “prices above prevailing market price” calls for a finding [that the law is unconstitutionally vague] is mistaken. The argument overlooks over a century worth of uninterrupted usage in all legal contexts. It was 70 years before the Defense Production article mentioned the term “prevailing market price”. Take action of 1950, that was by no means its debut. It was quite the opposite. It was actually used Several times for more than a century by both courts and scholars, and both before and after the Take action. Not to be overlooked is the fact that “[t]The requirement for reasonable certainty doesn’t preclude ordinary terms from being used to express ideas that find appropriate interpretations in everyday usage. …

The Defense Production was created Take actionCongress wanted the expression “prevailing markets prices” to refer exactly as it was intended and had been using the term for so long in this Country. i.e. those prices charged by It was establishedVendors in the market are the ones who should be charged the highest prices, and not market newcomers trying to raise them. Both courts and individual have ruled that a sale or purchase was made at the “prevailing market price”.

Defense Production Act’s requirement that a defendant cannot accumulate for sale or sell an item specified as scarce by the President at a price exceeding “prevailing market prices” is not “void-for-vagueness.” Respect the Defense Production requirements Take action requires neither an exerciseneither prophecy nor “exact”[ion of]Gifts that humanity does not have.” Contrary to statutes that have been condemned for vagueness, the DPA doesn’t leave room for “the broadest conceivable inquiry”, the extent of which nobody can see and the outcome of which no-one can adequately protect against.