The role of the avoidance canon in the Roberts Court and the implications of its inconsistent application in the court's decisions.

AuthorMcQuillen, Molly

INTRODUCTION

Many have praised Chief Justice Roberts and the Roberts Court for its judicial minimalism, (1) and have noted the Roberts Court's tendency to shape constitutional law at a gradual pace. (2) One of the tools the Roberts Court has used to achieve this result is the avoidance canon, which dictates that a court should "adopt one of several plausible interpretations of a statute to avoid deciding a tough constitutional question." (3) The Roberts Court has invoked this doctrine in many of its decisions, including in high-profile decisions such as Northwest Austin Municipal Utility District Number One v. Holder ("NAMUDNO"). (4) During the October 2009 term, however, the Court's decisions in Citizens United v. Federal Election Commission (5) and Free Enterprise Fund v. Public Company Accounting Oversight Board (6) tested the minimalist reputation of the Roberts Court when it decided the constitutionality of the statutes at issue in both cases rather than employing the avoidance canon. Richard Hasen has labeled the practice whereby "the Court ... eschew[s] a plausible statutory interpretation to decide a difficult constitutional question" as "anti-avoidance." (7) These three recent decisions show that, while it may be that traditionally "few doctrines are more familiar and predictable than the Supreme Court's practice of avoiding decision of constitutional questions," (8) the Roberts Court's use of the avoidance canon has been anything but consistent.

This Note seeks to explain the Roberts Court's application of the avoidance canon and to understand how these decisions affect the validity and legitimacy of the avoidance canon and of the Court itself. Part I gives context to the avoidance canon by examining the canon's history, its justifications, and its criticisms. Part II looks at the role of the avoidance canon in three of the Court's opinions. Part II.A assesses NAMUDNO and the implausible statutory interpretation the Court adopted to avoid deciding the constitutionality of section 5 of the Voting Rights Act of 1965. After discussing NAMUDNO, this Note will turn to cases where the Court decided the constitutionality of a statute rather than using the avoidance canon. In particular, Part II.B discusses Citizens United and the Court's decision to order re-argument of the case as well as its subsequent decision to overrule precedent. Part II.B also focuses on the interplay between Chief Justice Roberts's concurring opinion and Justice Stevens's dissent. Part II.C assesses Free Enterprise Fund and the majority's decision to read a for-cause removal requirement into the statute governing the removal of SEC Commissioners in order to hold that the Sarbanes-Oxley Act's "dual" for-cause limitation contravened separation of powers. Finally, Part III concludes that it is impossible to reconcile the Court's different approaches to the canon and argues that the inconsistent application of the avoidance canon has damaged the doctrine itself and has put its own legitimacy in jeopardy.

  1. BACKGROUND ON THE AVOIDANCE CANON

    1. History of the Canon and Its Evolution

      The avoidance canon is a substantive canon. While many legal scholars have traced its history to before Marbury v. Madison, (9) the standard citation for the canon is Justice Brandeis' concurring opinion in Ashwander v. Tennessee Valley Authority. (10) In Ashwander, Justice Brandeis summarized seven rules that the Court had implemented in "passing upon a large part of all the constitutional questions pressed upon it for decision" (11):

      1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding ...

      2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.'...

      3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'

      4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of....

      5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation....

      6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

      7. 'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principal that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. (12)

      From these seven rules, Adrian Vermeule extracted three major categories of avoidance. (13) The first category is "procedural avoidance," which suggests that "courts should order the issues for adjudication, or the rules that determine the forum in which a case should proceed, with an eye to obviating the need to render constitutional rulings on the merits." (14) The second category is "classical avoidance," and the third category is "modern avoidance." (15) The last two categories are different from procedural avoidance in that they affect the judicial construction of a statute. (16) The "classical avoidance" approach directs that "'as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, [the Court's] plain duty is to adopt that which will save the Act.'" (17) In contrast, the "modern avoidance" approach provides 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." (18) The major difference between classical and modern avoidance, therefore, "is in the level of constitutional concern needed to trigger the rule" since modern avoidance allows "serious but potentially unavailing constitutional objections to dictate statutory meaning." (19) It is important to keep in mind that, even though the Court has claimed that constitutional avoidance has been applied for so long that its use is beyond debate, many scholars have questioned the reasons for its use. (20)

    2. Justification for and Criticisms of the Avoidance Canon

      1. Justifications for the Canon

        Many scholars have emphasized different justifications for the avoidance canon and have long debated its usefulness in constitutional law. (21) While the justifications for the canon are often stated differently, the main arguments in favor of its use are the promotion of federalism and the separation of powers, the limitations of the judiciary, and the importance of constitutional adjudication. (22) In contrast, critics of the canon emphasize that modern avoidance can actually conflict with legislative intent and that the canon often does not prevent the unnecessary creation of constitutional law. (23)

        The first justification for the avoidance canon is that the courts should avoid unnecessary questions to maintain the integrity of federalism and the separation of powers. Therefore, "to the extent Congress or a state is charged with authority in a particular substantive area, courts should carefully ensure the ability of these actors to interpret the Constitution in their work by not foreclosing options." (24) Essentially, this argument for the canon is that courts should respect, rather than invalidate, another branches' constitutional determination. (25)

        The second justification for the avoidance canon is that it is necessary due to the limitations of the judiciary and the perceived fragility of its legitimacy. Justice Brandeis wrote his concurrence in Ashwander as a response to the judicial activism of the Court of the Lochner era, and his opinion reflected contemporary fears that the Court's credibility was at stake. (26) The canon insulates the Court from Brandeis' concerns by enabling "the judiciary to render unpopular decisions cautiously, rather than suddenly or haphazardly, [which] preserves judicial credibility and increases public acceptance of Court decisions." (27)

        The final justification for the avoidance canon is the "paramount importance of constitutional adjudication in our system." (28) This concept relies on the perception that the Court's ability to decide constitutional rights may be the Court's biggest responsibility and most important power. (29) Constitutional adjudication is central and crucial to the judiciary because, when a court decides a statutory or procedural issue, the result may have an effect on a large number of individuals or on the operations of an administrative agency. (30)

        While many scholars have examined the justifications for the rules, Richard Hasen came up with three theories that draw on these justifications to explain why a Court will decide to invoke constitutional avoidance. The three theories are the "fruitful dialogue," "political legitimacy," and "political calculus" theories. (31) As Hasen notes, it is impossible to know which of these theories is correct, and it is possible that more than one theory may come in to play in any given case. (32) Nevertheless, these explanations are helpful to provide some framework to understand when and why the Court invokes constitutional avoidance.

        The fruitful dialogue rationalization "posits that the Court will use constitutional avoidance only when doing so would further a dialogue with Congress that has a realistic chance of actually avoiding constitutional problems through redrafting." (33) This assumes that if the Court avoids deciding the constitutionality of a statute, then it should be a signal for Congress to fix that statute. (34) Hasen's second explanation, the political legitimacy theory, posits that when the Court fears that a constitutional decision would harm its legitimacy, it will use the avoidance canon to maintain that...

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