Gorsuch, J., concurring in judgement
the lower courts that devised the theory could not agree. They clashed over everything from who owes a duty of honest services to what sources of law may give rise to that duty to what sort of actions constitute a breach of it. See id., at 416–420 (Scalia, J., concurring in part and concurring in judgment).
Eventually, that uncertainty demanded this Court’s attention. In McNally v. United States, 483 U. S. 350 (1987), the Court held that, while §1341 “clearly protects property rights,” it does not protect more abstract interests like a right to “honest … government.” Id., at 355, 356. McNally rested, in no small part, on vagueness concerns. Any other interpretation, the Court emphasized, would leave the law’s “outer boundaries ambiguous.” Id., at 360. If Congress wanted to extend the law to protect more than property rights, the Court added, “it must speak more clearly than it has.” Ibid.
Soon Congress did speak. It enacted §1346, which now defines the phrase “scheme or artifice to defraud” to include “a scheme or artifice to deprive another of the intangible right of honest services.” In one sense, the new law did offer clarity. It dispelled any doubt about whether Congress intended the mail-fraud statute (and later the wire-fraud statute, §1343) to protect a right to “honest services.” But in another sense, the law clarified nothing. Congress did not address McNally’s concern that the phrase “honest-services fraud” is unworkably vague. Nothing in the new law attempted to resolve when the duty of honest services arises, what sources of law create that duty, or what amounts to a breach of it. Nor did the new law cross-reference any portion of the federal criminal code that might have lent clarity to the concept.
These problems resurfaced in Skilling. There, a majority of the Court acknowledged that a “vagueness challenge [to §1346] ha[d] force.” 561 U. S., at 405. But instead of
