The Supreme Court in the last few years has resolved some of the most divisive and consequential cases before it by employing the same maneuver: construing statutes to avoid constitutional difficulty. Although the Court generally justifies the avoidance canon as a form of judicial restraint, these recent decisions have used the canon to camouflage acts of judicial aggression in both the statutory and constitutional spheres. In particular, the Court has adopted dubious readings of federal statutes that would have been unthinkable in the canon’s absence. We call this move the “rewriting power.” The canon has also been used to articulate new constitutional norms and significant breaks from settled doctrine. We call this move “generative avoidance.” Both practices are facets of the broader phenomenon of “active avoidance,” which is the use of the avoidance canon to usher in legal change.
This Article defines and critiques active avoidance by analyzing in detail two recent instances — Northwest Austin Municipal Utility District No. One v. Holder and National Federation of Independent Business v. Sebelius (NFIB) — as well as providing a briefer analysis of Bond v. United States. In Northwest Austin, the Court rewrote the bailout provision of the Voting Rights Act and gave birth to the “equal sovereignty” doctrine. In NFIB, the Court construed away a constitutional problem with the individual mandate and gave birth to what we call the “antinovelty doctrine”: the principle that statutes without historical precedent are constitutionally suspect. The Article demonstrates that the rewriting power can have a countermajoritarian effect equal to — or even greater than — outright invalidation, because of certain features of our legislative process. And it shows how generative avoidance, by undermining some of the structural guarantors of judicial restraint, may encourage the Court to spearhead constitutional change. For these reasons, this Article sounds a cautionary note about the recent judicial temptation to use the avoidance canon. The Article concludes by offering a defense of a properly limited avoidance canon.
*Paul and Patricia Saunders Professor of National Security Law, Georgetown University Law Center.
**Visiting Researcher, Georgetown University Law Center.
The authors wish to thank Akhil Amar, Harold Edgar, Joshua Geltzer, Jeremy Kessler, David Pozen, Brian Richardson, Zachary Schauf, Benno C. Schmidt, Jr., Michael Schmidt, the participants in the Georgetown Faculty Workshop, and the editors of the Harvard Law Review for their helpful suggestions. Jonathan Silberman and Zoe Jacoby provided excellent research assistance.