930 F.3d 264

DIAZ, Circuit Judge, dissenting:
I agree with the substance of Judge Wilkinson's dissent regarding the merits of this case. I write separately, however, because I think it well within this court's discretion to consider Plaintiffs' vagueness challenge, even as I would reject the challenge on its merits. With respect to Plaintiffs' Eighth Amendment claim, the majority ventures too far in extending the holding announced in Robinson v. California , 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), so as to apply to criminal conduct compelled by addiction. Respectfully, that decision is not for us to make.
A.
When a party expressly waives an argument before a panel of this court, we usually decline, as a matter of discretion, to consider the argument on rehearing en banc. But as the majority explains, we may consider an abandoned argument in the rare case where the record enables us to do so, where doing so would not prejudice either party, and where the argument implicates an issue of great importance.
This is such a case, for the reasons described by the majority. The basis for Plaintiffs' vagueness challenge was adequately developed in the district court. We do not prejudice the Commonwealth by considering the challenge now, because it had a full opportunity to address the issue at en banc oral argument and through supplemental briefing. And although I cannot join in the majority's analysis of the vagueness issue, I agree that we should consider it to ensure that we correctly decide a matter of public importance. Enforcement of Virginia's interdiction statute impacts the basic liberty interests of the Plaintiffs and many similarly situated persons throughout the Commonwealth. Whether it does so within constitutional bounds is a question that touches on Eighth Amendment and vagueness concerns, which are closely related and have been applied in tandem in cases addressing similar types of statutes. See, e.g. , Joel v. City of Orlando , 232 F.3d 1353, 1359-62 (11th Cir. 2000) ; Farber v. Rochford , 407 F. Supp. 529, 533-34 (N.D.Ill. 1975) ; City of Chicago v. Youkhana , 277 Ill.App.3d 101, 213 Ill.Dec. 777, 660 N.E.2d 34, 39-42 (1995), aff'd sub nom.
City of Chicago v. Morales , 177 Ill.2d 440, 227 Ill.Dec. 130, 687 N.E.2d 53 (1997), aff'd 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999).
Nonetheless, I part company with my colleagues in the majority on whether Virginia's interdiction statute is void for vagueness. As Judge Wilkinson notes, the law is rife with open-ended terms, from "reasonable doubt" to "moral turpitude." These terms generally don't present constitutional vagueness issues, except where they invite arbitrary or discriminatory enforcement or fail to fairly notify those who are subject to a law of what conduct will constitute a violation. The term "habitual drunkard" used in the interdiction statute does neither.
The distinction between occasional and "habitual" drunkards is a question of degree, and it's true that the line may sometimes blur. It is also true that Virginia's courts haven't provided much guidance beyond that contained in the statutory text. See Jackson v. Commonwealth , 44 Va.App. 218, 604 S.E.2d 122, 125 (2004) (defining a habitual drunkard as one who "is admittedly in the continual habit of being intoxicated from alcohol" (quoting Fisher v. Coleman , 486 F. Supp. 311, 315 (W.D. Va. 1979) )). But there can be little doubt as to the basic conduct that would qualify one as a habitual drunkard: repeatedly consuming alcohol to excess. This is enough to satisfy the constitutional vagueness standard. Accord Ledezma-Cosino v. Sessions , 857 F.3d 1042, 1047 (9th Cir. 2017) (en banc).
B.
Nor does Virginia's interdiction statute run afoul of the Eighth Amendment's bar against cruel and unusual punishment. The core dispute in this case is whether Robinson prohibits only the criminalization of status, or also of conduct compelled by status. I am satisfied that Robinson is better understood as distinguishing status from conduct, which is the interpretation that most courts have adopted in the decades since Robinson was decided.
And despite the majority's suggestion to the contrary, Powell v. Texas , 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), did not alter Robinson 's distinction between status and conduct. Rather, Judge Wilkinson is I think correct in concluding that "the judgment in Powell neither extended or contracted Robinson, which was left undisturbed."
Plaintiffs' Eighth Amendment claim therefore turns on whether Robinson can and should be extended to prohibit statutes that criminalize conduct compelled by addiction. In my view, this question is one to be answered in the first instance by the Supreme Court.
Because the majority holds otherwise, I respectfully dissent.

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