The Two Versions of the Avoidance Canon

• July 5, 2012 • 9:52 am

Over at Balkinization, Mark Tushnet makes this point about the precedential value of Chief Justice Roberts’ opinion in NFIB v. Sebelius:

There is a “canon” of statutory construction known as the “constitutional avoidance” canon. It comes in two versions, now labeled the “classical” version and the “modern” one. On the modern version, a judge faced with a statute that, most naturally read, raises difficult constitutional questions, should adopt instead a construction—if one is fairly available—that does not raise such questions. On the modern version, then, the Chief Justice didn’t have to address the Commerce Clause question; all he needed to do was to note that the question was difficult and that construing the statute to impose a tax was an available reading.

The classical version is different. On that version, the canon of constitutional avoidance comes into play only when the statute, given its most natural reading, would in fact be unconstitutional. Only if it would be unconstitutional can the judge search for an alternate, available construction that would make the statute constitutional.

The Chief Justice appears to have used the classical version of the canon of constitutional avoidance in NFIB.

This is precisely the argument I made in my first post on this issue earlier this week. Many continue to point to the avoidance canon as a knock-down reason why Roberts’ opinion isn’t binding, but the truth is that there are two versions of the avoidance canon. Roberts chose one that made his analysis of the Commerce and Necessary and Proper Clauses the holding of the Court—and nothing required him to do otherwise.

UPDATE:  A friend of mine sent me the best argument I’ve heard yet about why the Commerce and N&P Clause portions of the Chief Justice’s opinion are dicta. His argument gives a reason why the Court might be bound to the “avoidance of constitutional doubts” version of the avoidance canon as opposed to the “avoidance of actual unconstitutionality” version:

From what I’ve read one of the reasons why the Court moved to “modern” avoidance was the concern that classical avoidance necessitated the issuance of advisory opinions.  I’m not saying that it does necessarily, only that it was (apparently) a concern at the time, which makes the claim that the Commerce stuff in NFIB is dicta at least colorable.  See William K. Kelley, Avoiding Constitutional Questions as a Three Branch Problem, 86 Cornell L. Rev. 831, 840 (2000) (“Because this placed the Court in the apparent position of rendering advisory opinions on constitutional questions, it shifted to the doctrine of the modem avoidance canon in Delaware & Hudson.”).  For support of the “advisory opinion” problem he cites to Delaware & Hudson which sure seems to have that concern in mind: “And unless this rule [of avoidance] 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.” United States v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909) (emphasis added).  Again, this isn’t to say that I think you’re wrong on the holding/dicta question, but only to say that the Chief’s application of “classical” avoidance does not seem to end the inquiry in and of itself.

I think ultimately this argument leads back to what I said in my second post is the fundamental question here: was the contested portion of the Chief Justice’s opinion objectively necessary to his reasoning? If it was objectively necessary, then reaching the Commerce and N&P Clause questions was part of resolving the “case or controversy” presented to the Court. If the contested portion was not necessary, then there would indeed be a plausible claim that that part of the opinion is not only dicta; it’s an unconstitutional advisory opinion. So I don’t think the rationale for the modern avoidance canon advances the ball. We’re back to where we started.


  • RS says:

    It seems obvious to me that the opinion would be fine (well, wrong, but still the crucial vote & opinion) if the entire CC/N&P portion were removed and the Taxing Power portion started off saying “We need not address the CC/N&P because we find the mandate can be upheld as a valid exercise of the taxing power.” I don’t see how it is plausibly argued as necessary to the holding. Roberts argued otherwise for obvious reasons, but that doesn’t make it so. What matters, really, is how easily a future Court will find it to say “that was dicta, not binding, deuces!” And it is already clear that it will be a trivial, one-line move.

  • Jim Darling says:

    It seems to me that even under classical avoidance, the commerce clause and n&p parts of the opinion could only be controlling if Roberts changes the statute so that it remains constitutional under the taxing and spending clause.

    For the commerce clause/n&p parts to be part of the holding, you need three things: 1) rejection of the commerce clause/n&p clause as a basis of congressional power to write the statute, 2) rejection of the taxing and spending clause as a basis of congressional power to write the statute, and 3) a judicial rewrite of the statute so that it now reads as constitutional. In other words, a judicial rewrite is the only way to conclusively show that both the commerce/n&p clause and the tax clause do not to uphold the law as written.

    I don’t see Roberts’ opinion as having all three. Rather, his opinion is 1) a rejection of the commerce clause/n&p clause as a basis of congressional power to write the statute, and 2) a strained reading of the statute that leads to the conclusion that the taxing and spending clause is a proper basis of congressional power to write it. Roberts’ taxing and spending clause argument is certainly a strained reading of the statute, but it leaves the mandate to operate exactly as written. I don’t think his opinion is enough to show that he has considered a ‘natural’ reading of the statute under the taxing and spending clause, rejected that reading, and then invoked constitutional avoidance to uphold a judicially modified reading of the statute.