In a number of recent landmark decisions, the Supreme Court has used the canon of constitutional avoidance to essentially rewrite laws. Formally, the avoidance canon is understood as a method for resolving interpretive ambiguities: if there are two equally plausible readings of a statute, and one of them raises constitutional concerns, judges are instructed to choose the other one. Yet in challenges to the Affordable Care Act, the Voting Rights Act, the Chemical Weapons Convention, and other major statutes, the Supreme Court has used this canon to adopt interpretations that are not plausible. Jurists, scholars, and legal commentators have criticized these decisions, claiming that they amount to unaccountable judicial lawmaking. These criticisms highlight a basic contradiction in contemporary avoidance doctrine. On the one hand, the avoidance canon is described as an interpretive rule of thumb that guides courts in discerning congressional intent. Yet on the other, the Supreme Court commonly uses the avoidance canon to create statutory meanings that conflict with Congress’s intent, and does so in the name of new constitutional rules that Congress did not foresee. This is not “interpretation” in the conventional sense; it is rewriting in the service of constitutional norm enforcement. This Article mounts a new defense of such rewriting-as-interpretation. It does so by reframing the avoidance canon as two different judicial tools: (1) a canon of interpretation, and (2) a constitutional remedy. The latter of these— avoidance as a constitutional remedy—makes sense of courts’ power to effectively rewrite statutes. A court that finds a statute unconstitutional can creatively reinterpret that statute in a way that changes its meaning in order to fix the constitutional violation, just as it can invalidate statutory language, strike down applications, and impose other kinds of remedies that change the statute’s meaning. This idea is not as unusual as it may seem. Many other countries currently treat avoidance as a constitutional remedy. In the United Kingdom and New Zealand, for example, judges cannot invalidate laws, and so creative reinterpretation of statutes is the only judicial mechanism for remedying violations of constitutional rights. And in Canada, constitutional avoidance doctrine has been divided into an interpretive canon and a remedy, exactly as this Article advocates. Further, the Supreme Court of the United States has effectively treated avoidance as a remedy in two major recent decisions— United States v. Booker and National Federation of Independent Business v. Sebelius—though it did not acknowledge that it was doing so. Bifurcating avoidance into a canon and a remedy resolves the contradiction between avoidance as an interpretive tool and avoidance as a means of changing the law. It does so by separating out these two functions. The interpretive avoidance canon can be used to resolve true ambiguities through the presumption that Congress does not intend to pass statutes that conflict with preexisting constitutional rules. The reinterpretation remedy, in turn, can be used to change a statute’s meaning after it has been held unconstitutional, and to do so even where the court is announcing a new constitutional rule.
Eric S. Fish,
Constitutional Avoidance as Interpretation and as Remedy,
Mich. L. Rev.
Available at: http://repository.law.umich.edu/mlr/vol114/iss7/2