When Avoiding Federal Questions Should not Evade Federal Review: Michigan v. Long Meets, and Trumps, Ashwander v. TVA
11 Pages Posted: 28 Jul 2009 Last revised: 4 Sep 2009
Date Written: July 1, 2009
The principle that courts should construe statutes to avoid constitutional problems that might require their invalidation has been conventionally accepted by both state and federal courts at least since Justice Brandeis set out this prudential requirement in Ashwander v. Tennessee Valley Authority in 1936. Almost 50 years later in Michigan v. Long, the United States Supreme Court adopted a bright line standard to determine when it was appropriate for the Court to review state court decisions that discussed both state and federal law in resolving an issue. The Court held that it would be free to review all such cases in the future unless the state court’s opinion included 'a plain statement' that it was based on an 'independent' and 'adequate' state law ground. Left open is the question of how these long accepted rules of constitutional adjudication fit together? What if the state court does not look to federal constitutional law to resolve the merits of a constitutional claim, but instead discusses federal constitutional law as a basis for giving a challenged state statute a narrow construction to avoid having to reach the federal constitutional question. To what extent, if any, should the Supreme Court be able to review such state court decisions under the authority of Michigan v. Long? In reconciling these doctrines in this article, we suggest that both the Ashwander avoidance principle and the presumption favoring Supreme Court review in Michigan v. Long are both best understood as judicial attempts to respond to concerns about political accountability. Further, we argue that the plain statement requirement of Michigan v. Long more effectively furthers political accountability goals than does Ashwander’s emphasis on the narrow construction of statutes to avoid constitutional conflicts. Building on this foundation, we provide a framework by which the Supreme Court might apply the Michigan v. Long requirement to state court decisions in which state law is interpreted to minimize the risk of federal constitutional violations.
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