“Generative Avoidance” and King v. Burwell - Guest Post by Mila Sohoni

 The following post is by Mila Sohoni. [Ed: Adam Zimmerman commented on Mila's essay earlier in the week]

Somewhat improbably, the topic of avoidance of novel constitutional questions seems to be in the air once again! Neal Kumar Katyal and Thomas Schmidt just published an article in the Harvard Law Review criticizing the Roberts Court for, among other things, using the constitutional avoidance canon to articulate new constitutional norms, a use of the canon that they call “generative avoidance” (p. 2112). In an essay in response, Caleb Nelson argues that “the canon about avoiding unconstitutionality should focus on the constitutional doctrines that were familiar when the relevant statute was enacted” (p. 339).  If courts applied the “classical” version of the canon to avoid only actual unconstitutionality as judged by reference to prevailing doctrine at the time of enactment, Nelson explains, then “the canon would not invite ‘generative avoidance’”(p. 340). He adds that new constitutional rules can, however, serve as “tiebreakers” that permit a court to adopt a constitutional interpretation of a statute rather than hold the statute unconstitutional under the newly articulated rule (p. 338 n.32).

My take on avoiding novel questions, which was published earlier this week in the Yale Journal on Regulation Online, is much the same as Nelson’s.  As I argued, “[a]voiding novel constitutional doubts should be a highly disfavored way of resolving a case,  a method of last resort, to be used only once one has exhausted other techniques of statutory interpretation, and if one is prepared to hold that the novel constitutional problem is an actualbarrier to the statute” (p.13).  At that extreme, when the novel constitutional issue poses an actual obstacle, not merely a “doubt,” it is appropriate for a court to use classical avoidance to “save” as much of the statute as possible from actual nullification, whether by old law or new.  This is a good approach to novel constitutional doubts, I argued, because it will ensure that “when the justices first confront truly novel constitutional questions, they will address them with the caution and carefulness of a court creating law, not dictum” (p. 13).

An interesting thing about this approach is that it offers a new way to explain Chief Justice Roberts’s otherwise “puzzling” “Commerce Clause essay” (as Justice Ginsburg called it) in NFIB.  As Katyal and Schmidt note, a glaring gap in Roberts’s opinion is its failure to explain why he insisted on using classical avoidance rather than modern avoidance: “The Chief Justice could just as easily have said that he had ‘grave doubts’ about the constitutionality of the mandate under the Commerce Clause, and then adopted his saving construction” (pp. 2137-38).  But Roberts’s failure to use modern avoidance makes sense, I argued, if one supposes that the much-heralded novelty of the Commerce Clause problem made it unjustifiable for Roberts to apply the modern avoidance canon (p. 13 n.68).  What was left on the table was the tool of classical avoidance, which he used to decide the novel question on the merits and then adopt a saving construction of the ACA.

This Term, history is not repeating itself, but it is “rhyming.”  In King v. Burwell, the justices are being asked to apply the modern avoidance canon to dodge a truly novel constitutional doubt posed by the Affordable Care Act.  As I argued, using modern avoidance to resolve King would confound Congressional understandings and would needlessly create a new Tenth Amendment penumbra that might have reverberations far beyond this case (p. 12-14).  There’s also a non-zero risk that the shadow constitutional law produced in King won’t turn out to be well-crafted shadow constitutional law (p. 16).  The new Tenth Amendment problem that the justices are considering avoiding in King received its first public airing at Supreme Court amicus briefing.  Describing the contours of this doubt without one pair of adversarial briefs on the subject, let alone a set of lower-court opinions or a district-court record, would be a highly risky endeavor for a Court that, quite sensibly, tends to insist on being “a court of review, not of first view.” For these and other reasons, I argued that “the justices can—and therefore should—resolve King without using the avoidance canon to inaugurate a new branch of federalism jurisprudence” (p. 17).

But there’s more to life, or so I hear, than the Affordable Care Act.  And the Katyal-Schmidt article and Nelson’s response offer much more to ponder than just their implications for King or NFIB.  For example, do the “penumbras” created by the avoidance canon effectively tie the hands 

of later Courts, lower courts, and Congress—or not? Nelson points out that scholars have disagreed on this point, and that “we lack systematic research on the horizontal, vertical, and inter-branch precedential effects of avoidance decisions” (p. 340). Another example: has the rise of a sophisticated Supreme Court bar affected the Court’s decision-making, and if so, how? Katyal and Schmidt contend that “the mix of modern constitutional litigation, where sophisticated litigants frame up arguments with constitutional-ish points, coupled with the avoidance doctrine” makes for a “dangerous cocktail” (p. 2114).  My own sense is that the rise of the Supreme Court “practice group”—and the concomitant “heyday of the Supreme Court amicus brief” (p.12) — are two of the key ingredients in this cocktail, but clearly more empirical work is needed on this subject.  In short, I’m very happy to see these two stimulating papers address the topic of avoidance of novel questions with such rigor and creativity.  I hope that the Court takes to heart these scholars’ concerns (and mine too) in resolving future cases in which litigants seek to persuade the justices to avoid truly novel constitutional doubts.