My colleague Mila Sohoni's article The Problem with “Coercion Aversion”: Novel Questions and the Avoidance Canon is now published by the Yale Journal on Regulation. It takes up Justice Kennedy's suggestion, in the King v. Burwell oral argument, that the Court should construe the statute to allow subsidies on federal health insurance exchanges because otherwise it might be regarded as unconstitutionally coercing the states into establishing their own exchanges. The article argues, however:
Modern avoidance has two justifications: honoring Congress’s presumed intent not to legislate unintentionally close to a constitutional line and preventing courts from unnecessarily issuing constitutional opinions. The logic of these justifications disintegrates when the putative constitutional problem is a novel question of first impression that crystallized only after Congress legislated. Congress can’t be presumed to have legislated in light of new constitutional problems that were not evident at the time of lawmaking, and the Court can’t claim to be leaving constitutional law undisturbed when its avoidance holding itself manufactures new constitutional doubts. As a result, the Court should apply the canon to avoid truly novel constitutional problems only if it has exhausted other available tools of statutory interpretation, and even then only in preference to actual constitutional invalidation.
For King, this principle boils down to a simple syllogism. Because (1) the constitutional problem of coercion by regulatory threat is novel; and because (2) the justifications for the modern avoidance canon disintegrate where the problem being avoided is novel; therefore (3) the Court should use coercion aversion to resolve King only as a last resort. In King, an alternative avenue for resolving the case is necessarily available to a justice who would otherwise use the avoidance canon to circumvent this novel problem. To avoid the ostensibly coercive reading of the statute, a justice must conclude that an alternative, non-coercive construction of the statute is “fairly possible” or “reasonable.” But if there’s a “reasonable” reading of the ACA whereby tax credits are not linked to the creation of state exchanges, then a fortiori the ACA must fail to state unambiguously the conditions on the availability of tax credits—which would run afoul of the federalism clear-statement cases that require Congress to impose such conditions in unmistakable terms. Consequently, a justice inclined towards coercion aversion need not and should not rely on it to resolve the case—even if that justice would rule that a clearly worded regulatory threat of this kind was unconstitutional if she were unavoidably confronted with that novel question on the merits.
Posted at 6:50 AM