Constitutional avoidance
Encyclopedia
In United States constitutional law
, the doctrine
of constitutional avoidance dictates that a federal court should refuse to rule on a constitutional issue if the case can be resolved on a nonconstitutional basis. When a federal court is faced with a choice of ruling on a statutory
, regulatory
or constitutional basis, the Supreme Court
has instructed the lower court to decide the federal constitutional issue only as a last resort: "The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of." Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).
The avoidance doctrine flows from the canon of judicial self-restraint, and is intertwined with the debate over the proper scope of federal judicial review and the allocation of power among the three branches of the federal government and the states. It is also premised on the "delicacy" and "finality" of judicial review of legislation for constitutionality, concerns regarding the credibility of the federal courts, and the "paramount importance of constitutional adjudication in our system." These elements demonstrate a significant overlap between the avoidance doctrine and other jurisdictional or justiciability barriers. The avoidance doctrine reflects such other justiciability doctrines as standing and ripeness, and permeates jurisdictional doctrines such as Pullman abstention and the adequate and independent state ground doctrine.
The avoidance of unnecessary constitutional decisions has been urged as early as 1833 by Chief Justice
John Marshall
in Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558).
Although Brandeis' concurring opinion in Ashwander is the primary cite for the modern formulation of the avoidance doctrine, Chief Justice Marshall had cautioned previously that no questions of "greater delicacy" can be presented to the federal judiciary than those involving a constitutional challenge to a legislative act. He instructed that if such questions "become indispensably necessary to the case," they must be decided, but "if the case may be determined on other points, a just respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed." In Ex parte Randolph, the Chief Justice, while riding circuit, considered a challenge to a congressional act which provided that Treasury agents could issue warrant
s for military officers
charged with disbursing public funds who failed to pay and settle their accounts at the Treasury Department
. The court concluded that the terms of the act did not apply to an officer temporarily acting as the ship's purser due to the death of the regularly commissioned purser and granted his petition for habeas corpus
.
Justice Louis D. Brandeis' concurring opinion in Ashwander provides the most significant formulation of the avoidance doctrine, even though the Brandeis formulation had no effect on the outcome of the case because the Justice concurred in the plurality opinion
, and the plurality considered and decided the properly presented constitutional issues. In Ashwander, Justice Brandeis identified seven components of the avoidance doctrine.
Justice Stevens has called the Ashwander concurrence "one of the most respected opinions ever written by a Member of this Court." Brandeis, a leader of the progressive movement prior to his judicial appointment offered a broad framing of the avoidance doctrine. The doctrine was adopted heartily by Felix Frankfurter, who was attacked as too "liberal" while a Harvard scholar and an active supporter of New Deal programs. This tool of judicial restraint espoused by "liberals" was in large part inspired by the response of Brandeis and Frankfurter to the activist "conservative" Court of the 1930's, which struck down legislation as infringing on freedom of contract and other doctrines such as substantive due process. In recent years, doctrines of judicial restraint have more often been criticized when used by "conservative" jurists.
United States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...
, the doctrine
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
of constitutional avoidance dictates that a federal court should refuse to rule on a constitutional issue if the case can be resolved on a nonconstitutional basis. When a federal court is faced with a choice of ruling on a statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, regulatory
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
or constitutional basis, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
has instructed the lower court to decide the federal constitutional issue only as a last resort: "The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of." Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).
The avoidance doctrine flows from the canon of judicial self-restraint, and is intertwined with the debate over the proper scope of federal judicial review and the allocation of power among the three branches of the federal government and the states. It is also premised on the "delicacy" and "finality" of judicial review of legislation for constitutionality, concerns regarding the credibility of the federal courts, and the "paramount importance of constitutional adjudication in our system." These elements demonstrate a significant overlap between the avoidance doctrine and other jurisdictional or justiciability barriers. The avoidance doctrine reflects such other justiciability doctrines as standing and ripeness, and permeates jurisdictional doctrines such as Pullman abstention and the adequate and independent state ground doctrine.
Historical development of the avoidance doctrine
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
in Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558).
Although Brandeis' concurring opinion in Ashwander is the primary cite for the modern formulation of the avoidance doctrine, Chief Justice Marshall had cautioned previously that no questions of "greater delicacy" can be presented to the federal judiciary than those involving a constitutional challenge to a legislative act. He instructed that if such questions "become indispensably necessary to the case," they must be decided, but "if the case may be determined on other points, a just respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed." In Ex parte Randolph, the Chief Justice, while riding circuit, considered a challenge to a congressional act which provided that Treasury agents could issue warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
s for military officers
Officer (armed forces)
An officer is a member of an armed force or uniformed service who holds a position of authority. Commissioned officers derive authority directly from a sovereign power and, as such, hold a commission charging them with the duties and responsibilities of a specific office or position...
charged with disbursing public funds who failed to pay and settle their accounts at the Treasury Department
United States Department of the Treasury
The Department of the Treasury is an executive department and the treasury of the United States federal government. It was established by an Act of Congress in 1789 to manage government revenue...
. The court concluded that the terms of the act did not apply to an officer temporarily acting as the ship's purser due to the death of the regularly commissioned purser and granted his petition for habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
.
Justice Louis D. Brandeis' concurring opinion in Ashwander provides the most significant formulation of the avoidance doctrine, even though the Brandeis formulation had no effect on the outcome of the case because the Justice concurred in the plurality opinion
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
, and the plurality considered and decided the properly presented constitutional issues. In Ashwander, Justice Brandeis identified seven components of the avoidance doctrine.
Justice Stevens has called the Ashwander concurrence "one of the most respected opinions ever written by a Member of this Court." Brandeis, a leader of the progressive movement prior to his judicial appointment offered a broad framing of the avoidance doctrine. The doctrine was adopted heartily by Felix Frankfurter, who was attacked as too "liberal" while a Harvard scholar and an active supporter of New Deal programs. This tool of judicial restraint espoused by "liberals" was in large part inspired by the response of Brandeis and Frankfurter to the activist "conservative" Court of the 1930's, which struck down legislation as infringing on freedom of contract and other doctrines such as substantive due process. In recent years, doctrines of judicial restraint have more often been criticized when used by "conservative" jurists.