AVOIDANCE CREEP.

• Author: Garden, Charlotte

At first glance, constitutional avoidance--the principle that courts construe statutes to avoid conflict with the Constitution when possible--appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent. Then, successive decisions often magnify the problems of avoidance--a phenomenon I call "avoidance creep." When a court distorts a statute in service of constitutional avoidance, a later court may amplify the distortion, incrementally changing both statutory and constitutional doctrine in ways that are unsupported by any rationale for constitutional avoidance.

This Article identifies the phenomenon of avoidance creep and demonstrates its wide-ranging effects by explaining how it has warped the development of labor law in two areas. First, courts have limited unions' abilities to engage in "secondary" strikes and picketing. Second, the Supreme Court has reduced or eliminated unions' abilities to assess dues or other fees from represented workers, culminating in the Court's decision in Janus v. AFSCME. Collectively, these avoidance-driven shifts in labor law amount to a profound change in its overall character. Yet these decisions often do not result from freestanding analysis of the relevant statutes. Rather, many of these decisions flow directly from prior cases invoking constitutional avoidance as a means of reaching a decision that is dubious as a matter of statutory interpretation, constitutional analysis, or both. After documenting these problems, the Article proposes measures to promote honest examination of the role constitutional avoidance plays in doctrinal development and to mitigate its harmful consequences.

INTRODUCTION I. ACCOUNTS OF AVOIDANCE II. HOW AVOIDANCE CREEPS A. Avoidance and Doctrinal Evolution 1. Street as Constitutional Law 2. Street as Mixed Constitutional and Statutory Law 3. Street as Statutory Interpretation B. Avoidance and Doctrinal Stagnation 1. Secondary Activity under the NLRA: An Overview 2. Labor Picketing, the First Amendment, and Constitutional Avoidance at the Supreme Court III. THE HARMS OF AVOIDANCE CREEP IN LABOR LAW A. Constitutional Avoidance's Effects on Labor Law 1. Avoidance Decisions in the Courts 2. Avoidance Decisions at the NLRB B. Constitutional Avoidance's Effects on Constitutional Law C. Congressional Intent, Constitutional Avoidance, and Labor Law 1. In General 2. In As-Applied Challenges CONCLUSION: AVOIDING AVOIDANCE CREEP INTRODUCTION

This Article seeks to answer two questions that appear at first glance to be unrelated. First, what happens over time when a line of cases is grounded on the canon of constitutional avoidance? Second, what explains the anomalous development of the law governing labor unions' First Amendment rights? These questions have the same answer: a phenomenon that I call "avoidance creep."

Constitutional avoidance occurs when a court adopts one reading of a statute over another in order to avoid answering a constitutional question. (1) Decisions based on constitutional avoidance are statutory decisions that, according to the traditional account of avoidance, are supposed to reflect values of judicial minimalism and respect for the elected branches of government. (2) But scholars have rightfully criticized the traditional account and continue to debate questions such as whether or not avoidance has other benefits for courts or the development of law, and the extent to which courts manipulate the doctrine to achieve their preferred results. (3)

This Article uses labor law as a case study to explore how courts and agencies treat precedent that relies on constitutional avoidance. It finds that avoidance decisions have tended to creep beyond their stated boundaries, as decisionmakers either treat them as if they were constitutional precedent, or extend them into new statutory contexts while disregarding key aspects of their original reasoning.

Avoidance creep in labor law has had dramatic consequences for unions, workers, and the law. The Supreme Court's answers to some of the most important and contentious questions in labor law rest on constitutional avoidance. For example, constitutional avoidance was instrumental in International Ass'n of Machinists v. Street, in which the Supreme Court held that labor law permits unions and employers to mandate that railway employees contribute towards union representation costs, but not other union activities, such as campaigning on behalf of candidates for political office. (4) Street went on to play a foundational role in a line of cases culminating with the recent blockbuster case Janus v. American Federation of State, County, and Municipal Employees, Council 31 ("AFSCME"), (5) which held that public-sector workers cannot be required to pay agency fees. Street was also key to Communications Workers of America v. Beck, which limited mandatory union fees in the private sector to those required to fund a union's representational activities. (6) One cannot know what would have happened absent Street's use of avoidance and later avoidance creep--but this Article shows that avoidance creep played a major doctrinal role in getting to Janus.

Avoidance also grounds a line of cases in which the Supreme Court has narrowed the scope of the National Labor Relations Act's (NLRA) prohibition on so-called "secondary" (7) strikes and protests. (8) That might sound like good news for unions--and in some ways, it is. But in another instance of avoidance creep, subsequent courts have wrongly assumed that when the Court narrowed the NLRA in some contexts, it also reaffirmed that Congress could prohibit other forms of union protest. (9) The result is a body of law governing union protest that is irreconcilable with modern First Amendment principles. (10)

The Article concludes that, overall, constitutional avoidance has negatively affected unions and the development of labor law. Avoidance creep has led the Court to articulate new legal principles, including that compelling a public employee to pay union dues implicates the First Amendment. Additionally, courts sometimes over-read earlier avoidance decisions as affirmations of the basic constitutionality of the underlying law. Finally, avoidance decisions make it more difficult for the National Labor Relations Board (NLRB) to effectively use its discretion to interpret key statutory terms, leading to a stilted understanding of key concepts, including when listeners are "coerced" by union protests.

Part I of this Article begins by discussing the justifications for constitutional avoidance that have been offered by courts and commentators. Academic supporters and critics of constitutional avoidance largely agree that the traditional account--that avoidance is consistent with judicial modesty because Congress would prefer to have a statute narrowed than to have it struck down--is unrealistic. In place of that account, some scholars have offered alternative justifications for constitutional avoidance to backstop the traditional judicial account, often focusing on the role that avoidance plays in protecting constitutional norms and principles.

Part II draws on examples of constitutional avoidance in labor law to show that--contrary to courts' narratives about avoidance--its implementation in two key areas of labor law has aggrandized courts' authority, and also warped the development of constitutional and statutory labor law through "avoidance creep."

Finally, Part III discusses some larger consequences of constitutional avoidance (and avoidance creep) in labor law. It traces the effects of avoidance creep on labor law and constitutional law. Then, it argues that neither the traditional nor the alternative accounts of avoidance work in the labor law context, in part because labor law is designed to balance competing constitutional and quasi-constitutional rights and obligations. The article ultimately concludes that--at least as it has been deployed in labor law--the risk of avoidance creep is a significant and previously unacknowledged problem associated with constitutional avoidance.

1. ACCOUNTS OF AVOIDANCE

   This section briefly reviews courts' and scholars' accounts of constitutional avoidance. The Court has traditionally characterized its approach to avoidance as driven by judicial modesty and deference to congressional preferences. But many judges and legal scholars rightly find this characterization disingenuous. Still, some critics of the traditional account support for other reasons courts' use of the avoidance canon in at least some cases; they have offered alternative justifications, which range from structural constitutional principles such as federalism and separation of powers, to pragmatic considerations regarding the potential political consequences of constitutional decisions for courts. This discussion lays the groundwork for the next section of the Article, which uses examples from labor law to illustrate the underappreciated problem of avoidance creep.

   In the Supreme Court's own telling, there are two related benefits of constitutional avoidance. The first is judicial minimalism: the Court reasons that Congress would rather have a statute construed narrowly and upheld than construed broadly but struck down. (11) The second emphasizes likely congressional intent, presuming that Congress does not lightly approach the constitutional boundaries of its authority. (12)

   Judges and scholars have convincingly argued that these justifications for avoidance are unavailing. (13) The Court offers no evidence to support its account of congressional preferences, and logic often suggests Congress could have precisely the opposite set of preferences. Why, for example, would Congress prefer that a court construe a statute narrowly in order to avoid answering a question that might or might not...