In my initial post on the health care decision, I stated “Once again, the Chief has manipulated the doctrine of constitutional avoidance to do what he wanted to do in a high profile, important case.”
I hadn’t had a chance to go back and expand on this issue since I wrote that, but Nicholas Rosenkranz’s very smart post has prompted me to do so. Rosenkranz persuasively argues that Roberts’ use of the avoidance canon in the health care case is not your typical application of the canon: rather than apply it, as is typically done, to a textual ambiguity (such as to the question whether a ban on “vehicles” in the park covers bicycles), the Chief applies to to alternative “constitutional characterizations” of an unambiguous law (the health care mandate is either an unconstitutional “penalty” or a constitutional “tax”).
As poor as this analysis is as an application of the avoidance canon, CJ Roberts engaged in two worse applications of the canon in recent years. In the NAMUDNO case, considering the constitutionality of section 5 of the Voting Rights Act, the Court read the Voting Rights Act to allow for a utility district to “bail out” from coverage under the Act, an interpretation that the Chief Justice advanced to avoid the constitutional question whether section 5 was unconstitutional. Unlike the health care case, in NAMUDNO the Court did confront a question about textual meaning (did the Voting Rights Act give the utility district a chance to “bail out” from coverage of the act?). But the unprincipled part of the decision was that the textual meaning advanced by the Chief Justice was wholly unsupported by the text or the legislative history of the Act. I devote about half of my article, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 Supreme Court Review 181, to demonstrating the truth of this assertion. Below the fold, I’ve included an excerpt from my article explaining why the district court so thoroughly rejected the argument that it should avoid the constitutional question by interpreting the Act to allow the utility district to bail out.
As with the taxing power analysis by the Chief in the health care case, the bailout analysis in NAMUDNO was a total surprise. See Heather Gerken, The Supreme Court Punts on Section 5, Balkinization (June 22, 2009) (“the statutory argument is one that almost no one (save Greg Coleman, the lawyer who argued the case and who is now entitled to be described as a mad genius) thought was particularly tenable because of prior Court opinions.”); Richard L. Hasen, Sordid Business: Will the Supreme Court Kill the Voting Rights Act? Slate (Apr 27, 2009), online at http://www.slate.com/id/2216888/ (“Since there’s no good statutory loophole, the larger constitutional question seems unavoidable.”).
And then there’s Citizens United, the well known case in which the Supreme Court on a 5-4 vote struck down the limits on independent corporate spending in elections. Constitutional avoidance was an issue there too. As I explain in my article, a week after NAMUDNO was issued, the Court announced it would not be deciding Citizens United by the Court’s summer break as scheduled. Instead, the Court set the case for reargument in September (before the start of the new Court Term), expressly asking the parties to brief the question whether the Court should overturn two of its precedents upholding the constitutionality of corporate spending limits in candidate elections. The constitutional issue had been abandoned by the law’s challengers in the court below and was not even mentioned in the challengers’ jurisdictional statement. Moreover, the constitutional question could easily be avoided through a plausible interpretation of the applicable campaign finance statute. Among other things, the the Court could have held that video-on-demand, which requires a cable subscriber to choose to download video for viewing, is not a “broadcast, cable or satellite communication that refers to a candidate for federal office” as defined by BCRA.
When the Court finally issued Citizens United, Chief Justice Roberts issued a separate concurring opinion, the main thrust of which appeared to be to justify not applying the doctrine of constitutional avoidance. He said that the interpretation offered to avoid the constitutional issue simply was not a plausible one. “This approach [of the dissent to apply avoidance] is based on a false premise: that our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law. It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”
In my earlier article, I tried to explain why the Court applied a canon of avoidance in NAMUDNO but of anti-avoidance (reach out and decide a difficult constitutional question even if there is a plausible statutory construction to avoid it) in Citizens United. I came up with three possible theories: First, the fruitful dialogue explanation 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. On this reading, the Voting Rights Act got “remanded” to Congress because Congress may fix it in ways that do not violate the Constitution, but the corporate spending limits provision of federal campaign finance law perhaps does not deserve remand because the campaign finance laws are not constitutionally fixable. Second, the political legitimacy explanation posits that the Court uses the constitutional avoidance doctrine when it fears that a fullblown constitutional pronouncement would harm its legitimacy. Some evidence supports this understanding. In the same Term that the Court avoided the constitutional question in NAMUDNO, it used the same avoidance canon to narrowly construe a different provision of the Voting Rights Act in Bartlett v Strickland, and it applied constitutional avoidance (in deed if not in name) to narrowly construe Title VII of the 1964 Civil Rights Act in Ricci v DeStefano, the controversial New Haven firefighters case. Each of these cases involved tough questions of race relations whose resolution could harm the Court’s legitimacy. In contrast, campaign finance issues are much lower salience to the public, and are less likely to arouse the passion of interest groups and perhaps the ire of Congress. Third, the political calculus explanation posits that the Court uses constitutional avoidance to soften public and Congressional resistance to the Court’s movement of the law in a direction that the Court prefers as a matter of policy.
The Chief Justice’s application of the constitutional avoidance canon in the health care case fits with the second and third rationales. The Chief could have engaged in the questionable act of avoidance to preserve the Court’s legitimacy. Alternatively, as others have suggested he may be playing the long game, sacrificing a chance to strike down the health care law in order to set new markers on issues including the commerce clause and the spending power.
But what these three opinions have in common is the Chief Justice’s selective manipulation of the constitutional avoidance doctrine for legal and political ends. This does not make the Chief Justice unique as a Supreme Court Justice—far from it. But it hardly makes him the neutral umpire he fancies himself.
Towns and cities within counties may not bailout separately. This is a logistical limit. As a practical matter, if every political subdivision were eligible to seek separate bailout, we could not expect that the Justice Department or private groups could remotely hope to monitor and to defend the bailout suits. It would be one thing for the Department and outside civil rights litigators to appear in hundreds of bailout suits. It would be quite another for them to have to face many thousands of such actions because each of the smallest political subunits could separately *201 bail out. Few questioned the reasonableness and fairness of this cutoff in the House.102