Avoiding Constitutional Questions as a Three-Branch Problem

69 Pages Posted: 25 May 2008

Date Written: May, 22 2008


This article criticizes the "cardinal rule" of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings that do not fairly reflect the legislative bargains struck in Congress. The article continues by arguing that the avoidance canon also impinges on the role of the Executive by disregarding its best judgment as to statutory meaning, arrived in the course of discharging the constitutional function of executing the law, because that judgment might be unconstitutional. Of course, if a statute passed by Congress, or a statutory interpretation proffered by the Executive, is actually - as opposed to possibly - unconstitutional, a court should not hesitate to say so in the course of deciding a case. On the whole, however, the article concludes that the separation of powers would be better served by the Supreme Court's recognizing that there is as much danger of judicial usurpation from avoiding constitutional questions as deciding them.

Suggested Citation

Kelley, William, Avoiding Constitutional Questions as a Three-Branch Problem (May, 22 2008). Cornell Law Review, Vol. 86, 2000-2001; Notre Dame Legal Studies Paper No. 08-15. Available at SSRN: https://ssrn.com/abstract=1136353

William Kelley (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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