Chief Justice Roberts and Constitutional Avoidance

At SCOTUSreport.com, Nicholas Quinn Rosenkranz has an excellent post on Chief Justice Roberts’ use of the canon of constitutional avoidance in NFIB v. Sebelius. As Professor Rosenkranz notes, “The Chief Justice’s account of the canon is accurate, but his application of it is exceedingly odd.” Specifically, the Chief used the canon not to resolve a statutory ambiguity, but to construe a statutory provision in a way other than it was written.

when the Chief Justice “interprets” the mandate to be a tax, this is not interpretation in the ordinary sense. This is, in reality, an issue, not of statutory interpretation, but of constitutional characterization. The Chief is not interpreting the meaning of a statute to avoid a constitutional problem. Instead he is characterizing a statute—whose meaning is not in doubt—to be a tax for purposes of the Constitution. . . . The canon of constitutional avoidance only applies when a statute is ambiguous—that is, when it is unclear what rights and duties the statute creates. Since there is no such ambiguity in the individual mandate, the canon does not apply.

As a consequence, Rosenkranz argues, once Roberts concluded that the mandate, as written, was a penalty, not a tax, that should have been the end of the matter.

Over at ElectionLawblog, Rick Hasen comments that however bad the Chief Justice’s application of the avoidance canon was in NFIB, it was worse in NAMUDNO v. Holder, where the Chief wrote an opinion for eight justices that adopted a strained reading of Section 5 of the Voting Rights Act to avoid confronting the question of its constitutionality. In Citizens United, on the other hand, Roberts joined the majority in refusing to adopt a narrowing construction of the statute, and authored a concurring opinion stating that the Court should not adopt a narrow decision just because it is narrow, but that it “must also be right.” Hasen wonders what can explain this difference.

As I noted in this post, I think the pattern of the Chief Justice’s behavior is a product of multiple elements within his jurisprudence. First, I think he genuinely believes in constitutional avoidance as an important principle. He also believes that the Court should strive to bring clarity and concreteness. As a consequence he dislikes splintered holdings. Thus, in NAMUDNO he was willing to adopt a strained reading of the statute on avoidance grounds because other justices were willing to go along. Similarly in FIB, while other justices did not join the portion of his opinion on avoidance, a majority did embrace his conclusion that the mandate could be viewed as a valid exercise of the taxing power. In Citizens United, on the other hand, embracing constitutional avoidance would have required the Chief to adopt a statutory interpretation that was rejected by all eight other justices. Thus, he would have written a controlling opinion based on a premise that every other justice rejected. Yet, according to Jeffrey Toobin’s reporting, he was prepared to go the narrow, avoidance-based route when it appeared other justices would agree.

While Prof. Hasen puzzles over the behavior of the Chief, I think it is the approach to avoidance taken by other justices that is harder to explain. Chief Justice Roberts appears ready to rely on avoidance quite aggressively to avoid invalidating statutes, but not at the expense of fracturing the Court. But what about, say, Justice Ginsburg? She wouldn’t join the Chief to adopt a narrow holding in Citizens United that would have saved the statute, at the expense of a holding with which she would have disagreed, but was in NAMUDNO. Is there a theory to explain this?

UPDATE: Rick Hasen responds: “I agree that if the Chief Justice offered to use the avoidance canon in Citizens United and the liberals refused to go along, that would indeed be puzzling. But for this reason I am unconvinced that on this point Toobin’s description is accurate.” The key part of this response is “on this point, as Prof. Hasen was quick to accept other aspects of Toobin’s report on CU.