Constitutional avoidance Step Zero.

• Author: Vatarelli, Anthony
• Position: Setting a threshold for when courts will consider constitutional questions

When construing ambiguous statutes, judges favor interpretations that do not require the court to address a constitutional question--a long-standing practice known as "constitutional avoidance" or the "avoidance canon." Contrary to the common understanding of constitutional avoidance, this Comment argues that employing the canon entails a more complicated process than merely selecting the least constitutionally problematic statutory interpretation. Rather, the avoidance canon first requires judges to engage in a preliminary factual inquiry to determine whether a litigant's claim poses a risk of requiring constitutional adjudication at all. Drawing from the administrative law context, this Comment refers to that analysis as the Step Zero inquiry. (1) For each of three paradigmatic statutory interpretation cases, (2) the Comment describes how the Court employs the avoidance canon only after reaching an initial factual determination of constitutional doubt. Increased awareness of the Step Zero avoidance inquiry may reduce instrumental judicial decisionmaking, force deliberation among the judiciary to determine the appropriate Step Zero threshold, and provide optimal incentives for litigants and Congress. This Comment concludes by recommending additional avenues for scholarly exploration on this topic.

1. MODERN CONSTITUTIONAL AVOIDANCE AND ITS PROCEDURAL AMBIGUITY

   The Supreme Court articulated the modern avoidance canon through its assertion in Edward J. DeBartolo Corp. v. Horida Gulf Coast Building & Construction Trades Council that "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." (3) Although a detailed exposition of the history and recent treatment of the avoidance canon exceeds the scope of this Comment, (4) it is worth noting that scholars have begun to characterize many cases--ostensibly decided without using the avoidance canon--as cases in which the avoidance canon operated as a background norm that influenced the disposition. (5) Because of this shift in scholarly understanding, examining the avoidance canon's Step Zero has far more relevance than for only those cases in which the court explicitly employs that canon of construction.

   The Step Zero avoidance inquiry is as old as the canon itself. Indeed, the judicial practice of avoiding constitutional questions pre-dates even judicial review; it was arguably first espoused in the 1800 case Mossman v. Higginson. (6) Despite being such a deeply engrained, relatively uncontroversial judicial procedure, (7) this Comment asserts that constitutional avoidance contains a nebulous, previously unexamined threshold inquiry. Although some scholars have hinted at the vagueness of the procedure--Judge Richard Posner has referred to the ambiguity of the avoidance canon as a "judge-made constitutional 'penumbra'"--no scholar has recognized this fact-intensive examination. (8) Professor Trevor Morrison, for instance, elided the core issue simply by quoting the relevant language from Edward J. DeBartolo Corp. as identifying when the canon is "trigger[ed]." (9) The next Part isolates this inquiry and explores three cases.

2. STEP ZERO IN PRACTICE

   The three statutory interpretation cases discussed in this Part demonstrate how the Step Zero avoidance investigation exists across jurisprudentially dissimilar cases. For the following reasons, these cases serve as compelling examples for this examination. First, each case may be understood as employing the avoidance canon, even if the authors of each opinion do not explicitly premise their arguments on avoidance principles. Second, each opinion contains an acknowledgment that a factual inquiry precedes application of avoidance: the Step Zero inquiry. Third, the six opinions--each case's majority and accompanying opinions--include a range of six possible threshold levels for the Step Zero process. That is, each opinion identifies a different level of constitutional doubt to trigger use of the avoidance canon.

   To begin, NLRB v. Catholic Bishop of Chicago presents the only unequivocal example of constitutional avoidance and, accordingly, provides the most succinct and vivid Step Zero exposition. Before construing the statute, the majority examines the practical implications of NLRB's involvement in religiously affiliated schools. The Court concludes that "intrusion into this area could run afoul of the Religion Clauses ... [and] we would be required to decide whether that was constitutionally permissible." (10) After surpassing this Step Zero threshold of potentially requiring a constitutional decision, the Court proceeds to construe the statute in light of the avoidance canon. In contrast, dissenting in NLRB, Justice Brennan adheres to the standard of requiring a "serious doubt of constitutionality" before employing avoidance." Such a standard requires a weightier determination--that of serious doubt--as opposed to the majority's view that any interpretation that merely could be problematic triggers the canon.

   The second case, Gregory v. Ashcroft, is a less obvious example of avoidance. (12) Whereas NLRB stands as one of the Court's most explicit uses of the avoidance canon, (13) scholars commonly cite Gregory as a federalism case. (14) Nonetheless, a strong argument exists to view Gregory as an avoidance case because of the constitutional...