“John Roberts’ Constitutional Avoidance” and Anti-Avoidance

Damon Root writes on the Chief Justice’s decision in Bond. v. US, analogizing it to the Chief’s decision in the health care case.

As I noted the other day, Richard Re saw the avoidance parallels to NAMUDNO.

The important point is that the Chief (and others) on the Court use the constitutional avoidance when it is convenient, and ignore it when it isn’t.  Case in point: the Court easily could have used constitutional avoidance to avoid the constitutional issue in Citizens United.  Instead, the Court practiced “anti-avoidance,” reaching out to decide an issue it did not need to.  See my Constitutional Avoidance and Anti-Avoidance by the Roberts Court in the Supreme Court Review.


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