Constitutional avoidance as interpretation and as remedy.

Author:Fish, Eric S.

In a number of recent landmark decisions, the Supreme Court has used the canon of constitutional avoidance to essentially rewrite laws. Formally, the avoidance canon is understood as a method for resolving interpretive ambiguities: if there are two equally plausible readings of a statute, and one of them raises constitutional concerns, judges are instructed to choose the other one. Yet in challenges to the Affordable Care Act, the Voting Rights Act, the Chemical Weapons Convention, and other major statutes, the Supreme Court has used this canon to adopt interpretations that are not plausible. Jurists, scholars, and legal commentators have criticized these decisions, claiming that they amount to unaccountable judicial lawmaking. These criticisms highlight a basic contradiction in contemporary avoidance doctrine. On the one hand, the avoidance canon is described as an interpretive rule of thumb that guides courts in discerning congressional intent. Yet on the other, the Supreme Court commonly uses the avoidance canon to create statutory meanings that conflict with Congress's intent, and does so in the name of new constitutional rules that Congress did not foresee. This is not "interpretation" in the conventional sense; it is rewriting in the service of constitutional norm enforcement.

This Article mounts a new defense of such rewriting-as-interpretation. It does so by reframing the avoidance canon as two different judicial tools: (1) a canon of interpretation, and (2) a constitutional remedy. The latter of these-- avoidance as a constitutional remedy--makes sense of courts' power to effectively rewrite statutes. A court that finds a statute unconstitutional can creatively reinterpret that statute in a way that changes its meaning in order to fix the constitutional violation, just as it can invalidate statutory language, strike down applications, and impose other kinds of remedies that change the statute's meaning. This idea is not as unusual as it may seem. Many other countries currently treat avoidance as a constitutional remedy. In the United Kingdom and New Zealand, for example, judges cannot invalidate laws, and so creative reinterpretation of statutes is the only judicial mechanism for remedying violations of constitutional rights. And in Canada, constitutional avoidance doctrine has been divided into an interpretive canon and a remedy, exactly as this Article advocates. Further, the Supreme Court of the United States has effectively treated avoidance as a remedy in two major recent decisions--United States v. Booker and National Federation of Independent Business v. Sebelius--though it did not acknowledge that it was doing so.

Bifurcating avoidance into a canon and a remedy resolves the contradiction between avoidance as an interpretive tool and avoidance as a means of changing the law. It does so by separating out these two functions. The interpretive avoidance canon can be used to resolve true ambiguities through the presumption that Congress does not intend to pass statutes that conflict with preexisting constitutional rules. The reinterpretation remedy, in turn, can be used to change a statute's meaning after it has been held unconstitutional, and to do so even where the court is announcing a new constitutional rule.

Introduction I. The Dimensions of Constitutional Avoidance A. Dimension One: Violations or Mere Doubts B. Dimension Two: Tiebreaking or Rewriting C. The Scholarly Debate over the Avoidance Canon II. Creative Interpretations as Remedies A. Two Kinds of Interpretation B. Sebelius, Booker, and De Facto Remedial Reinterpretation C. The Constitutionality of Remedial Reinterpretation D. Foreign Models of Interpretation as Remedy III. Remedial Reinterpretation in Practice A. The Doctrinal Benefits of Bifurcating Avoidance B. When and How to Use Remedial Reinterpretation? C. The Limits of Interpretive Stretching D. Blurring the Line Between Canon and Remedy Conclusion Introduction

In 2014, the Supreme Court decided that poisoning your neighbor does not violate the Chemical Weapons Convention. (1) A woman named Carol Anne Bond was prosecuted for putting arsenic on her neighbor's mail, after discovering that the neighbor was having an affair with Bond's husband. (2) The implementing legislation for the Chemical Weapons Convention forbids any person knowingly "to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon." (3) By the plain terms of this statute, Bond was guilty. However, the Court did not apply its plain terms. Invoking the doctrine of constitutional avoidance, Chief Justice John Roberts's majority opinion "interpreted" an exception into the statute providing that it did not apply to individual acts of poisoning. (4) This let the Court dodge the thorny question of whether the federal government can criminalize such acts through a treaty.

This reasoning should sound familiar. The year before Bond, Chief Justice Roberts pulled the same move in one of the most consequential judicial opinions in American history. That case, National Federation of Independent Business v. Sebelius, decided the constitutionality of the Affordable Care Act. (5) The question in Sebelius was the validity of a provision requiring individuals to either purchase health insurance or pay a fine. (6) Chief Justice Roberts cast the deciding vote, and concluded that the Commerce Clause does not empower Congress to command the purchase of health insurance. (7) However, he also found that Congress does have the power to tax individuals for failing to purchase health insurance. (8) Thus the constitutionality of the individual mandate turned on whether it was properly understood as a "command" or a "tax." (9) Chief Justice Roberts concluded that, while the provision was written as a command, it must be interpreted as a tax in order to make it constitutional: "[I]t is only because we have a duty to construe a statute to save it, if fairly possible, that [the mandate] can be interpreted as a tax." (10) He thus saved the mandate by changing its meaning through interpretation.

Chief Justice Roberts has adopted implausible interpretations to avoid constitutional questions in a number of other cases as well. In Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), Roberts (joined by seven other justices) interpreted the term "political subdivision" in the Voting Rights Act to include tiny utility districts. (11) He thereby allowed such districts to escape the Voting Rights Act's "preclearance" regime, which requires covered jurisdictions to obtain permission before making any changes to voting procedures. (12) This was not a natural reading of the statute. The Voting Rights Act (VRA) explicitly defines the term "political subdivision" to mean "any county or parish," (13) a definition that clearly excludes utility districts. (14) In Skilling v. United States, the Court similarly used the avoidance canon to narrow the federal mail and wire fraud statutes. (15) One provision of those statutes defines "a scheme or artifice[] to defraud" as including "a scheme or artifice to deprive another of the intangible right of honest services." (16) This language is arguably so vague that defendants lack adequate notice about what conduct is criminalized. In order to avoid that constitutional vagueness problem, the Court in Skilling "interpreted" the statute to cover only bribes and kickback schemes. (17)

In each of these recent landmark decisions, the Roberts Court essentially "interpreted" new words into a major statute in order to avoid holding the statute unconstitutional. Members of the Court have criticized these uses of the avoidance canon, arguing that they go beyond the boundaries of permissible interpretation. (18) The late Justice Antonin Scalia called such uses of avoidance "gruesome surgery" and "result-driven antitextualism." (19) Justice Thomas has noted that "[a] disturbing number of this Court's cases have applied the canon of constitutional doubt to statutes that were on their face clear." (20) Prominent legal commentators have also been critical, calling Chief Justice Roberts's opinions "implausible" (21) and "exceedingly odd," (22) and accusing him of "marching to a beat of his own." (23) Academics have piled on as well, with Richard Hasen suggesting that the Roberts Court is using the avoidance canon selectively to achieve conservative political results, (24) and Neal Katyal and Thomas Schmidt proposing limits to the canon that would curb its supposed excesses. (25)

This Article takes a different view. It defends Chief Justice Roberts's signature move, and it does so by redefining that move as a constitutional remedy rather than a canon of interpretation. As these cases illustrate, there is a basic contradiction in the doctrine of constitutional avoidance. On the one hand, it is officially framed as an interpretive technique--a court presumes that the legislature does not intend to act unconstitutionally, and so it construes ambiguous statutes to avoid constitutional problems. Yet on the other, it is commonly used as a tool of constitutional enforcement, by which a court changes a statute's meaning to protect a constitutional norm. But avoidance cannot be both of these things at once. It cannot help judges determine the legislature's intent, while at the same time letting judges subvert that intent in the service of constitutional norms. To resolve this contradiction, the doctrine should be reframed as two distinct judicial tools: an interpretive canon and a constitutional remedy. The interpretive canon will function as a true aid to interpretation--it will help judges construe ambiguous statutes by assuming that Congress does not intend to violate preexisting constitutional rules. The remedy, by contrast, will allow judges to actually change a statute's meaning by creatively...

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