Passive Avoidance.

• Author: Krishnakumar, Anita S.

Abstract. In its nascent years, the Roberts Court quickly developed a reputation--and drew sharp criticism--for using the canon of constitutional avoidance to rewrite statutes in controversial, high-profile cases. In recent years, however, the Court seems to have taken a new turn, quietly creating exceptions or reading in statutory conditions in order to evade potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. In fact, the avoidance canon seems largely, and conspicuously, missing from many cases decided during the Court's most recent Terms, playing a significant role in justifying the Court's construction in only one majority opinion since 2012.

This Article examines the Roberts Court's recent shift in approach to the avoidance canon. It departs from the conventional wisdom about the Roberts Court and the avoidance canon in several important ways. First, it posits that the conventional view about the Roberts Court's aggressive use of the avoidance canon may itself have contributed to the Court's shift away from invoking the canon in recent Terms--that is, the Court may have ratcheted down its use of the canon in response to commentators' attacks against its reliance on avoidance in its early Terms. Second, this Article argues that the Roberts Court has recently adopted a passive rather than aggressive form of avoidance, in which it effectively avoids deciding controversial, unresolved constitutional questions--but without invoking avoidance, and without openly admitting to rewriting or straining the statute's text. Third, and perhaps most importantly, this Article uncovers several new tools of "passive avoidance" that the Court has employed to do the work previously performed by the avoidance canon. In the end, it posits that passive avoidance may actually be a good thing--and the truest form of constitutional avoidance.

Introduction I. The Early Roberts Court: Active Avoidance A. Early-Term Cases 1. Northwest Austin Municipal District No. One v. Holder 2. Skilling v. United States 3. National Federation of Independent Business v. Sebelius B. Critical Response II. Recent Cases: Passive Avoidance A. Avoiding Without Avoidance 1. Yates v. United States 2. Adoptive Couple v. Baby Girl 3. Bond v. United States 4. Elonis v. United States 5. King v. Burwell B. Diminished Avoidance 1. Afterthought avoidance 2. Justice Thomas 3. Jennings v. Rodriguez III. Some Theories A. Avoidance Retreat B. Bickelian Passive Virtues 1. Avoidance penumbras: lenity and federalism 2. The "mischief" rule C. Benefits of Passive Avoidance Conclusion Appendix Introduction

In its recent decision in Yates v. United States, the U.S. Supreme Court ruled that a fish is not a "tangible object" under a criminal statute that imposes up to twenty years in prison for any individual who "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence [an] investigation." (1) In so ruling, the Court invoked numerous canons of statutory construction, dictionary definitions, legislative history, the purpose of the statute--including the mischief it was designed to reach--and even the title caption of the section at issue. (2) Conspicuously missing from this tour de force of statutory construction was the avoidance canon--or any mention of the serious constitutional vagueness concerns raised by the statute and discussed at some length at oral argument. (3)

What makes this omission especially curious is that it seems to be part of a recurring pattern and a surprising role reversal for the Roberts Court. There used to be a familiar story about the Roberts Court and the avoidance canon: When confronted with a serious constitutional challenge to a statute--particularly if the statute was one with high political visibility--the Court would not invalidate the statute, even if a majority of the Justices believed the statute to be unconstitutional. (4) Instead, the Court--often in an opinion authored by the Chief Justice--would discuss the constitutional infirmity at length and then would pivot and invoke the canon of constitutional avoidance to justify limiting the statute's reach or otherwise construing the relevant provision so as to avoid the constitutional difficulty--even if doing so required straining the statute's text. (5)

As the story suggests, in its early years, the Roberts Court developed a reputation for aggressively using the avoidance canon to rewrite statutes in several controversial, high-profile cases. (6) Most notoriously, avoidance was the hook that Chief Justice Roberts used to uphold the Affordable Care Act (ACA) in National Federation of Independent Business v. Sebelius (NFIB) (7) and to save (for a time) the preclearance coverage formula of the Voting Rights Act of 1965 (VRA) in Northwest Austin Municipal Utility District No. One v. Holder. (8) Notably, in NFIB, Chief Justice Roberts invoked avoidance only after making clear that the ACA did not fall within Congress's powers under either the Commerce Clause or the Necessary and Proper Clause. (9) And in Northwest Austin, Chief Justice Roberts's opinion for the Court invoked avoidance only after clarifying that the VRA's preclearance provision likely violated constitutional norms about treating states equally. (10)

Indeed, two things stand out about the Roberts Court's use of the avoidance canon during the period between 2006 and 2012. First, it invoked the canon regularly--in ten majority or plurality opinions and eight concurring or dissenting opinions over seven Terms, for an average of 2.6 times per Term. (11) More importantly, in the vast majority of those opinions, the Court (or the concurring or dissenting opinion) engaged in "significant" discussion of the constitutional difficulty at issue, or placed "primary" or "some" reliance on the canon. (12) Second, the Court (or concurring or dissenting opinion) often used the canon aggressively to adopt a construction that deviated from the statute's most natural reading, in order to elide a constitutional problem that otherwise would have required it to invalidate the statute--and it frequently was open and frank about what it was doing. (13)

Following these decisions, scholars and commentators roundly criticized the Roberts Court's use of the avoidance canon, accusing the Court of distorting the canon and engaging in disguised judicial activism. For example, one commentator charged the Court with using the avoidance canon as a "tool ... to move constitutional law and policy in the Court's [preferred] direction." (14) Another reproached the Court for using the canon to pave the way for "disruptive" constitutional change and as a "playbook for judicial action." (15) Still others accused the Court of employing the avoidance canon to "camouflage[] acts of judicial aggression in both the constitutional and statutory spheres." (16)

In several recent cases, however, the Court seems to have taken a new turn--quietly creating exceptions or reading conditions into statutes in order to elide potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. (17) The Court has done so despite the fact that in each case, the constitutional issue was addressed at length in the briefs and discussed by the Justices at oral argument. (18) In those few later-Term cases in which the Court has invoked the avoidance canon, its tone and approach to the canon have changed dramatically. Only one of the decisions in the last four Terms that invoked avoidance gave the statute at issue a dubious or clearly strained reading--and that case relied primarily on a different canon of construction, mentioning avoidance only briefly. (19) Moreover, only five (of 311) statutory opinions issued by the Court since 2012 have provided a significant discussion of a constitutional issue raised by a rejected interpretation (and four of those were solo dissents or concurrences authored by Justice Thomas). (20) This is despite the fact that serious constitutional concerns were implicated in many of the statutory cases decided by the Court during this period.

This Article is the first to examine the Roberts Court's diminished reliance on the avoidance canon in recent years. It suggests that the Court has replaced express, open reliance on the avoidance canon with what I call "passive avoidance"--that is, a form of stealth constitutional avoidance that recalls Alexander Bickel's "passive virtues" of judicial decisionmaking. As discussed in detail below, Bickel famously coined the term "passive virtues" to describe judicial decisionmaking that declines to resolve cases on substantive grounds if narrower grounds are available for deciding the case. (21)

This Article proceeds in three Parts. Part I reviews the Roberts Court's prominent early use of the avoidance canon to openly air constitutional infirmities and adopt strained statutory constructions, as well as the critical commentary generated by this approach. Part II examines the Court's practice in recent Terms of interpreting statutes to avoid a constitutional difficulty that was--often extensively--briefed and discussed at oral argument, without discussing the avoidance canon in its opinion.

Finally, Part III offers a possible explanation for the Roberts Court's failure to invoke the avoidance canon expressly in several of its later-Term cases, even as it strained a statute's text to effectively avoid serious constitutional difficulties. It submits that the Court may be reacting to the spate of negative commentary that followed its prominent use of the avoidance canon in earlier Terms--that is, the Court may have entered something of an "avoidance retreat" period during which it has racheted down its use of the canon following a period of high use...