Was Chief Justice Roberts Most Unprincipled in Applying the Doctrine of Constitutional Avoidance in the Health Care Case, in NAMUDNO (the Voting Rights Act Case) or in Citizens United?

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 officeas 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.





The three-judge court in NAMUDNO v Mukasey, in an exhaustive and unanimous opinion, rejected both arguments.87 The court spent five pages addressing the bailout question, and then forty-eight pages addressing the thorny constitutional question (with the remainder of the opinion consisting of maps and appendices). For purposes of this article, I examine only the bailout analysis.
In addressing the argument of the utility district that it should be allowed to bail out, the court began by noting that until 1982, section 4(a) of the Act “limited bailout to two types of entities (1) covered states, and (2) political subdivisions covered ‘as a separate unit.”’88 Section 14(c)(2) of the VRA defines “political subdivision” to “mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of the state which conducts registration for voting.” “As a result, [under the pre-1982 version of section 4(a) of the VRA] only political subdivisions separately designated for coverage could seek bailout. So, for example, Texas could seek bailout as a covered state …. But political *199 subdivisions within covered states–such as Travis County, in which the District is located–could not apply for bailout despite meeting the section 14(c)(2) definition because they had never been separately designated for coverage.”89 The court confirmed this understanding of the section 4(a) bailout provision by citing to the Supreme Court’s City of Rome case, in which the Court held that the city of Rome, Georgia, “was ineligible to seek bailout because the coverage formula of § 4(b) ha[d] never been applied to it.”90
“In 1982, however, Congress expanded bailout eligibility to include section 14(c)(2) political subdivisions within covered states”91 by adding language to section 4(a) allowing bailout by “any political subdivision of such State …, though such determinations were not made with respect to such subdivision as a separate unit.”92 As the court explained, “[b]y including political subdivisions within covered states even though they had not been designated for coverage ‘as a separate unit,’ Congress made jurisdictions like Travis County eligible to seek bailout.”93
The utility district in NAMUDNO conceded it did not qualify, like Travis County, as a “political subdivision” under section 14(c)(2) because it was not a county and it never conducted registration for voting. The utility district nonetheless argued that it constituted a “political subdivision” in the ordinary meaning of that term and therefore could bail out.94 In support of the argument, the utility district cited to a 1978 Supreme Court case, United States v Board of Commissioners of Sheffield, Alabama,95 a case in which the Supreme Court held that “once a state has been designated for coverage, section 5’s preclearance requirement applies to all political units within it regardless of whether the units qualify as section 14(c)(2) political subdivisions.”96 The utility district focused on dictum in Sheffield stating that “section 14(c)(2)’s *200 definition ‘was intended to operate only for purposes of determining which political units in nondesignated states may be separately designated for coverage under § 4(b).”’97 The utility district argued that when Congress amended the bailout provisions of the VRA, it did so “in light of Shejfield‘s dictum that the only purpose of section 14(c)(2)’s definition is to identify which political sub-units qualify for coverage,”98 and therefore section 14(c)(2) was no bar to the court holding it should be considered a “political subdivision” entitled to seek bailout under section 4(a).
The district court rejected this argument on numerous grounds. First, the court offered a textual analysis, stating that the utility district’s definition would render the phrase in the amended statute “though [the coverage] determinations were not made with respect to such subdivision as a separate unit” as impermissible surplusage.99 In other words, if Congress intended to allow all political subdivisions (and not just section 14(c)(2) subdivisions) to be eligible for bailout, it did not need to include that extra clause. “This language demonstrates that Congress intended ‘political subdivision’ to refer only to section 14(c)(2) subdivisions–that is, counties, parishes, and voter-registering subunits–since only ‘such subdivisions’ can be separately designated for coverage.”100
The court also pointed to unambiguous statements in House and Senate Reports accompanying the 1982 amendments which “clarify that Congress intended the expanded bailout mechanism to encompass only section 14(c)(2) political subdivisions.”101 For example, the Senate Report states that:
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
The district court concluded its discussion by noting that the Attorney General issued a regulation confirming that only section 14(c)(2) jurisdictions may seek bailout, and that the Supreme Court has traditionally afforded substantial deference to the Attorney General’s interpretation of section 5.103 The court also noted that Congress was silent in 2006 when it reauthorized the Voting Rights Act in light of the practice of bailout by eleven Virginia political subdivisions that relied upon the Attorney General’s interpretation.104 Congress did so despite the fact that two witnesses unsuccessfully urged Congress “to expand bailout eligibility to encompass governmental units smaller than counties and parishes.”105
“Given this extensive evidence of clear legislative intent–both textual and historical–we need say little about Sheffield.”106 The court dismissed the Sheffield statement as dicta, and concluded that “[i]n any event, even if, as Sheffield‘s dictum suggests, section 14(c)(2)’s definition originally operated only to identify entities eligible for coverage, the amended section 4(a)’s text and legislative history make clear that Congress used that definition in 1982 for an additional purpose: to identify those entitles eligible to seek bailout.”107
Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 Sup. Ct. Rev. 181, 198-201 (2009)
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