Appealing to Congress

Abstract

In recent years, a swelling chorus of critics has taken aim at the Roberts Court’s (mis)use of avoidance canons. For many of these critics, Exhibit A has been a pair of cases involving constitutional challenges to the Voting Rights Act (VRA). In the first of these cases, Northwest Austin Municipal Utility District No. 1 v. Holder, the Court invoked the avoidance canon and decided the case on (dubious) statutory grounds. It left open the ultimate question of the VRA’s constitutionality, but it did raise constitutional scruples rooted in the novel doctrine of “equal sovereignty.” In the second case, Shelby County v. Holder, the Court relied on those Northwest Austin dicta to invalidate the VRA’s preclearance provisions. Defenders of these decisions suggest that the Northwest Austin Court clearly signaled to Congress that the VRA was in constitutional peril, and that the Shelby County Court simply made good on that earlier admonition. Long ago Alexander Bickel wrote that, in constitutional cases, the Supreme Court “nearly always has three courses of action open to it: it may strike down legislation as inconsistent with principle; it may legitimate it; or it may do neither.” The avoidance canon has, in the view of the Roberts Court’s defenders, been the Court’s favored way of “doing neither.”

But, as an alternative to invalidating or upholding a federal statute, the modern avoidance canon leaves much to be desired. This Article describes why this is so, and points to a more attractive “third way,” one first developed in Germany. In judgments known as “appeal decisions,” the German Constitutional Court does one of two things: it either declares that the challenged law is constitutional “as yet,” or it rules that the law’s unconstitutionality must be provisionally accepted. In both cases, the Court “appeals” to the legislature to act affirmatively — in the one case to prevent a foreseeable constitutional defect; in the other to cure a defect that already exists. Counterintuitively, this seemingly aggressive practice can actually promote dialogue and deference.

At a superficial level, the U.S. Supreme Court has long engaged in analogous practices. But those practices have been covert, half-hearted, and inadequate. Of late, the situation has grown worse. This Article contends that there would be great advantages to adopting the German practice openly and in full. The U.S. Supreme Court should, in certain settings, appeal to Congress.

Keywords: Constitutional law, Judicial Review, Comparative Constitutional Law, Constitutional Avoidance, Laws Heading toward Unconstitutionality