Criminal constitutional avoidance.

AuthorBerry, William W., III

TABLE OF CONTENTS INTRODUCTION I. THE CANON OF CONSTITUTIONAL AVOIDANCE A. The Development of the Modern Avoidance Canon B. The Justifications for the Avoidance Canon C. The Ambiguity Assumption of the Avoidance Canon II. VAGUENESS AND CONSTITUTIONAL AVOIDANCE A. The Constitutional Prohibition against Vagueness B. United States v. Skilling III. "CRIMINAL" CONSTITUTIONAL AVOIDANCE A. Vagueness, Not Ambiguity B. The Court Abdicating its Role as a Court C. The Court Acting as a Legislature IV. CONSEQUENCES OF MISUSING THE AVOIDANCE DOCTRINE A. Theoretical Consequences B. Practical Consequences V. A NEW MODEL FOR THE AVOIDANCE CANON CONCLUSION INTRODUCTION

"[A] resolution to avoid an evil is seldom framed till the evil is so far advanced as to make avoidance impossible."

--Thomas Hardy (1)

The canon of constitutional avoidance and the propriety of its use are again at the center of academic debate (2) following the U.S. Supreme Court's decision to uphold the Patient Protection and Affordable Care Act in National Federation of Independent Business v. Sebelius. (3) In affirming the individual mandate, Chief Justice John Roberts's controlling opinion (4) interpreted the ambiguous language of the statute in order to save the constitutionality of the statute. (5) The four dissenting Justices, on the other hand, argued that Justice Roberts's interpretation contravened Congress's intent by altering the meaning of the plain language of the statute. (6)

When the Court invokes the avoidance canon, the first point of disagreement is whether it constitutes an exercise of judicial restraint. (7) In the context of Sebelius, Justice Roberts could argue that he exercised judicial restraint by interpreting the statute such that the Court did not strike it down. (8) The dissenters would argue, though, that interpreting the statute consistently with the plain meaning of its text and Congress's intent exercises judicial restraint, even if that means striking the statute down as unconstitutional. (9)

The second point of contention when the Court uses the avoidance canon is whether there are constitutional norms protected by the canon's use. (10) Such resistance norms (11) provide a penumbral value (12) to underenforced constitutional provisions. Thus, in order to escape the avoidance doctrine, Congress must be clear about its intent to approach constitutional lines. (13) The criticism of using the avoidance canon to give value to such norms is that it enables the Judiciary to create a penumbral constitution, exceeding its Article III power. (14)

To be sure, this debate about the avoidance canon is not new. (15) The academic literature concerning the justifications for and the shortcomings of the canon of constitutional avoidance is well developed. (16) But, the academic literature has not explored the application of the avoidance doctrine to criminal statutes as a class. (17) This Article takes a small step in that direction. It explores whether the canon of constitutional avoidance is appropriate in cases involving void-for-vagueness challenges to federal criminal statutes.

In Skilling v. United States, the Supreme Court used the avoidance canon in response to a void-for-vagueness challenge to the federal criminal fraud statute. (18) As explained below, the Court severely restricted the statute's meaning, limiting its proscription against deprivation of honest services to bribery and kickbacks. (19)

This Article argues that, contrary to the Court's decision in Skilling, the canon of constitutional avoidance is inappropriate in void-for-vagueness cases. This is because such cases do not present statutory ambiguity that requires choosing between competing meanings or interpretations. Instead, void-for-vagueness challenges focus on the clarity of statutes and ask simply whether they are clear enough to satisfy the notice requirements of the Constitution. (20) In other words, this Article claims that, in void-for-vagueness cases, the absence of statutory ambiguity--one interpretation that complies with the Constitution and one interpretation that indicates constitutional infirmities--makes the use of the avoidance canon improper.

Simply put, vague criminal statutes are not inherently ambiguous. Instead of offering a choice between two meanings, they are indefinite, uncertain, and unclear. And, it is not the potential meanings of the vague statute that create constitutional problems; there is only a constitutional problem if there is no ascertainable meaning.

Part I of this Article explores the justifications for the canon of constitutional avoidance. In Part II, this Article describes the Court's void-for-vagueness doctrine and its use of the avoidance canon to circumvent the vagueness question in Skilling. Part HI argues that the use of the avoidance canon in Skilling was improper and explains why it is not an appropriate vehicle to respond to void-for-vagueness constitutional challenges to federal criminal statutes. Part IV explores the negative theoretical and practical consequences of applying the avoidance canon to potentially vague statutes. Finally, Part V concludes the Article by outlining a model for applying the avoidance canon to other constitutional questions involving criminal statutes.

  1. THE CANON OF CONSTITUTIONAL AVOIDANCE

    1. THE DEVELOPMENT OF THE MODERN AVOIDANCE CANON

      The canon of constitutional avoidance predates the establishment of judicial review. (21) A substantive canon, (22) its traditional form stated that when deciding "between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, [a court's] plain duty is to adopt that which will save the Act." (23) Under classical avoidance, the court must "reach the issue whether the doubtful version of the statute is constitutional [and conclude that it is not] before adopting the construction that saves the statute from constitutional invalidity." (24)

      Over time, however, the Court broadened this classical version of the canon of constitutional avoidance. (25) Because the application of the classical avoidance canon required the Court to make a constitutional determination in deciding whether to apply the canon, (26) the Supreme Court modified the canon in United States v. Delaware & Hudson Co. (27) The Court in that case explained that the classical canon in essence required the Court to issue advisory opinions. (28) To apply the classical avoidance canon, the Court first had to decide that one interpretation was unconstitutional. But, because such a determination did not control the outcome of the case--the saving construction did--the decision as to the unconstitutional interpretation became an advisory opinion. (29)

      To remedy this defect, the Court broadened the meaning of the canon, explaining that:

      [U]nless this rule be considered as meaning that our duty is to first decide that a statute is unconstitutional and then proceed to hold that such ruling was unnecessary because the statute is susceptible of a meaning, which causes it not to be repugnant to the Constitution, the rule plainly must mean that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter. (30) This modern avoidance canon thus requires the Court to choose alternative plausible statutory interpretations not just where one interpretation is unconstitutional but also where one interpretation gives rise to serious constitutional doubts. As the Court explained in a subsequent case, the Delaware & Hudson determination meant that, "[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score." (31)

      Justice Louis Brandeis's famous concurrence in Ashwander v. Tennessee Valley Authority further highlighted the move in the years that followed to cement the modern avoidance canon in the name of judicial deference to the Legislature. (32) The canon increased legislative deference by minimizing the cases in which the Court even reached the question of a statute's constitutionality, much less struck it down. (33) Justice Brandeis explained:

      The Court has frequently called attention to the "great gravity and delicacy" of its function in passing upon the validity of an act of Congress; and has restricted exercise of this function by rigid insistence that the jurisdiction of federal courts is limited to actual cases and controversies; and that they have no power to give advisory opinions. (34) Thus, the "cardinal principle" of the modern avoidance canon, "which 'has for so long been applied by [the] Court that it is beyond debate,'" requires merely that the Court make "a determination of serious constitutional doubt, and not a determination of unconstitutionality." (35)

    2. THE JUSTIFICATIONS FOR THE AVOIDANCE CANON

      The justifications for the use of the canon fall generally into two categories: judicial restraint and normative justifications. (36) The judicial restraint theory relies on the idea that the Court should avoid interpretations of statutes that raise constitutional doubts in order to respect, to the greatest degree possible, legislative decisionmaking. (37) As explained below, the judicial restraint justification has become less plausible with the application of the modern canon. In many cases, the modern canon results in the Court engaging in statutory rewriting that looks very little like restraint. (38)

      The second primary justification scholars have offered is one of constitutional enforcement of resistance norms. (39) The avoidance canon thus should "give voice to certain normative values," (40) namely "those embodied in the underlying constitutional provisions that create the constitutional 'doubt.'" (41) Under this justification, the overarching norm of the avoidance canon is restricting...

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