In the latest issue of the Harvard Law Review, Neal Kumar Katyal and Thomas P. Schmidt: Active Avoidance: The Modern Supreme Court and Legal Change. From the introduction:
The Supreme Court in the last few years has resolved some of the most divisive and consequential cases before it by employing the same maneuver: construing statutes to avoid constitutional difficulty. Although the Court generally justifies the avoidance canon as a form of judicial restraint, these recent decisions have used the canon to camouflage acts of judicial aggression in both the statutory and constitutional spheres. In particular, the Court has adopted dubious readings of federal statutes that would have been unthinkable in the canon’s absence. We call this move the “rewriting power.” The canon has also been used to articulate new constitutional norms and significant breaks from settled doctrine. We call this move “generative avoidance.” Both practices are facets of the broader phenomenon of “active avoidance,” which is the use of the avoidance canon to usher in legal change.
With commentary from Caleb Nelson: Avoiding Constitutional Questions Versus Avoiding Unconstitutionality. From the introduction:
In this month’s issue, Professor Neal Katyal and Thomas Schmidt join a distinguished group of lawyers and judges who criticize the “canon of constitutional avoidance” — the idea that courts should try to interpret statutes so as to avoid raising difficult questions of constitutional law. Although the Supreme Court has described this canon as a “settled policy,” the canon exists more by dint of repetition than by force of argument. Its critics include the most eminent circuit judge of the last generation, two of the most eminent circuit judges of the present generation and a host of thoughtful scholars
All three of the judges just mentioned, and many of the scholars, have criticized only the canon that favors avoiding serious constitutional questions. They have not objected to a separate canon that favors avoiding actual unconstitutionality — the longstanding principle that courts should not lightly interpret a statute in a way that makes it unconstitutional if some other interpretation is available. Katyal and Schmidt downplay this distinction. In part, that reflects their assessment of current practice: they agree with Professor Adrian Vermeule that the canon about avoiding actual unconstitutionality (which Vermeule dubbed “classical avoidance” to reflect its historical pedigree) “has been mostly superseded” by the canon about avoiding even constitutional questions (which Vermeule dubbed “modern avoidance”). But Katyal and Schmidt see little reason to resurrect the distinction. In their telling, both canons are variations on the same theme, and both are subject to the same objections: the canons lead to bad constitutional doctrine (because they enable judges to articulate new constitutional principles without the discipline that allegedly comes from “actually having to strike down a law”), and they also lead to bad interpretations of statutes (because they encourage judges to distort statutes in order to avoid whatever constitutional difficulties the judges have identified).
I come to this topic having been persuaded by the prior critics, so this Response defends the distinction that Katyal and Schmidt downplay. To begin with, I do not think that the canon about avoiding unconstitutionality is as rare as Vermeule suggested. Admittedly, courts often do conflate it with the canon about avoiding constitutional questions, and the Supreme Court sometimes uses a single formulation for both. But the lower federal courts and (especially) the state courts continue to refer specifically to the canon about avoiding unconstitutionality. Likewise, the modern Supreme Court has indicated that the canon about avoiding unconstitutionality takes precedence over the canon about avoiding constitutional questions— a conclusion that reflects not only an ongoing distinction between the two canons but also an implicit assessment of their respective justifications.
I agree with Professor Nelson (as I usually do). There's nothing wrong with construing a statute to avoid unconstitutionality, if the unconstitutionality is clear and the statute is ambiguous. (Or even perhaps if the statute is not really ambiguous, as in Mossman v. Higginson (1798) (holding that "the 11th section of the Judiciary Act can and must receive a construction consistent with the Constitution")). But the constitutional avoidance canon allows the Court to thwart the will of Congress without committing itself to a constitutional ruling.
In Mila Sohoni's recent article on the avoidance canon in King v. Burwell (linked here) she describes the justifications of the avoidance canon as twofold: "honoring Congress’s presumed intent not to legislate unintentionally close to a constitutional line and preventing courts from unnecessarily issuing constitutional opinions." She finds these justifications lacking in King (I agree). And I would say they are lacking more generally.
(1) Why would we think Congress would want to avoid legislating close to a constitutional line, so long as Congress thought it was on the right side of the line? I would think it as likely that Congress would want to legislate right up to the line. (2) I'm not persuaded of the value of avoiding constitutional rulings. More guidance is better. Avoidance decisions raise issues without answering them. But more importantly, if the the best meaning of the statute (after applying all appropriate rules of statutory construction) is "x", a court lacks power to find that the statute means less than "x" for the convenience of the court (that is, so that the court can avoid the difficult question). A court's obligation is to apply the statute. (I suppose if the statute is perfectly ambiguous — that is, there are two exactly equal meanings) perhaps the avoidance canon could be a tie breaker, but it's not likely that this will happen often). In short, a court should go where its duty takes it, and if that duty requires a constitutional decision, then it is the court's obligation to decide.
Posted at 6:20 AM