The Avoidance Canon in Constitutional Adjudication: A Middle Ground, Summaries of Construction

Download The Avoidance Canon in Constitutional Adjudication: A Middle Ground and more Summaries Construction in PDF only on Docsity! COMMENTS How MANY AVOIDANCE CANONS ARE THERE AFrER CLARK V. MARTiNEZ? Gilbert Lee* INTRODUCTION Karl Llewellyn famously observed that, for every canon of statutory construction, another canon points in the opposite direction.' Duel- ing canons potentially invite judicial manipulation of statutes, as judges can simply pluck a desired canon to support a desired reading of a statute. But can this problem occur even when judges are deciding whether or not to invoke only one canon in a given case? Surpris- ingly, in the case of the avoidance canon, it can. After the Supreme S 2 Court's recent ruling in Clark v. Martinez, three different interpretive methods now fall under the umbrella of "the avoidance canon." In any particular case, each counsels different outcomes, facilitating po- tential judicial sleight of hand whenever judges putatively invoke "the avoidance canon." To highlight this problem, suppose Congress enacts the following statute: The federal government's termination of an employee of an agency is unlawful, unless: (1) the employee has been convicted of a felony; or • J.D. Candidate, 2008, University of Pennsylvania Law School; A.B., Princeton University. I would like to thank Professors Matthew Adler, Theodore Ruger, and Catherine Struve for their immensely helpful comments. I also wish to thank B. Dax Grossman and Michael Boyle for their suggestions. And I would like to thank the staff of the University of Pennsyl- vania Journal of Constitutional Law for their editing assistance. Any remaining errors are mine alone. 1 Examples include: "If language is plain and unambiguous it must be given effect," yet an opposing canon states, "[n]ot when literal interpretation would ... thwart manifest pur- pose." Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REv. 395, 403 (1950). 2 543 U.S. 371 (2005). JOURNAL OF CONSTITUTIONAL LAW (2) because of the employee's sexual orientation, termination is determined to be advisable in the interests of the United States. Suppose that Jones, an unpaid college intern working for the State Department, is convicted of a felony and then terminated. The dif- ferent versions of the avoidance canon that have emerged provide different answers as to whether Jones can challenge his termination under the statute. Call the earliest version, set forth by Justice Brandeis, the "Serious Constitutional Doubts Canon": "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a car- dinal principle that this Court will first ascertain whether a con- struction of the statute is fairly possible by which the question may be avoided.", 3 Under this Canon, Jones's case is straightforward. Under the natural reading of the statute, Jones is certainly an "employee," and termina- tion due to a felony conviction is constitutionally uncontroversial. Without "serious constitutional doubts" present, the Serious Constitu- tional Doubts Canon counsels against deviating from the natural reading of the statute. Call a second version, later articulated by Chief Justice Burger, the "Clear Affirmative Intention Canon": The Court must avoid "serious constitutional questions,"4 unless "the affirmative intention of the Congress clearly expressed, 5 mandates reaching these questions. Jones's case also appears to be reasonably straightforward under this Canon. Assuming termination of felons does not raise "serious con- stitutional questions," a judge need not determine whether Congress clearly intended to raise these questions. Thus, similar to the Serious Constitutional Doubts Canon, the Clear Affirmative Intention Canon also counsels against searching for a different construction of the statute, even if for somewhat different reasons. ButJones's case becomes vastly more complicated under the most recent version of the avoidance canon. Call this formulation, ush- ered in by Justice Scalia in the 2005 Term's Clark v. Martinez deci- sion,6 the "Lowest Common Denominator Canon": 3 Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (in- ternal quotation marks omitted) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). 4 NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 501 (1979). 5 Id. 6 543 U.S. at 371. [Vol. 10:1 AVOIDANCE CANONS AFfER CLARK V. MARTINEZ If anything, the trifurcation of the avoidance canon is ironic, given the recent trend towards textualism17 and its accompanying criticism that the canon, "in the hands of lazy or willful judges might provide little barrier to truly implausible attributions of statutory meaning."1 8 After all, the Lowest Common Denominator Canon is also the only formulation that dictates reading Jones out of the stat- ute, despite the statute's plain text. This Comment argues that the Lowest Common Denominator Canon creates an avoidance canon "grab bag," where-as demon- strated in the Jones example-judges can resort to different formula- tions of the canon to justify both adherence to, and departure from, the natural reading of virtually any statute. Part I surveys the norma- tive justifications for, and criticisms of, the avoidance canon, conclud- ing that general agreement exists concerning the need to protect against overaggressive use of the canon. Proceeding on the assump- tion that overaggressive use of the canon is undesirable, Part II com- pares the susceptibility of the three canons to overaggressive usage. This Part argues that, by using statutory ambiguity as a "trigger" for potential avoidance canon usage, the Lowest Common Denominator Canon is the most susceptible to overaggressive usage, as courts can perceive ambiguity in virtually any statute. Part III assesses the con- tinuing vitality of all three Canons in the lower courts, concluding that the shortcomings of the Lowest Common Denominator Canon have resulted in a state of disarray where the three Canons have been deployed in unpredictable ways. I. WHY HAVE THE AVOIDANCE CANON? A. The Justifications for the Avoidance Canon Textual canons of statutory interpretation (e.g., "interpret a gen- eral term to be similar to more specific terms in a series") 9 are typi- 17 See generally ESKRIDGE, JR. ET AL., LEGISLATION, supra note 13, at 223-36 (discussing the rise of textualist theories including Justice Scalia's so-called "new textualism"); Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1 (2006) (discussing the end of the textualist revolution and the convergence of textualist views with other moderate theories of statutory interpretation); Caleb Nelson, What is Textualism?, 91 VA. L. REV. 347 (2005) (exploring the distinctions between textualism and other theories of statutory in- terpretation, such as intentionalism). 18 ESKRIDGE,JR. ET AL., LEGISLATION, supra note 13, at 350. 19 Id. at 375. Dec. 2007] JOURNAL OF CONSTITUTIONAL LAW cally thought of as "guidelines for evaluating linguistic or syntactic meaning., 20 The avoidance canon, however, is a substantive canon of interpre- tation." Substantive canons are distinct from textual canons, as the former "are rooted in broader policy or value judgments"2 2 and "at- tempt to harmonize statutory meaning with policies rooted in the common law... or the Constitution., 23 The justifications for the avoidance canon, then, typically focus on the underlying values the 24canon serves. According to conventional accounts, the avoidance canon serves judicial restraint values. 5 Central to these values is respect for legisla- tive supremacy and the corresponding fear that 'Judicial review is a counter-majoritarian force in our system. 26 When Congress enacts a statute, its members, who swear to uphold the Constitution, are pre- sumed to be legislating within constitutional limits. 27 Invalidating a statute, on the other hand, defeats legislative will and "is the gravest and most delicate duty that this Court is called on to perform. ,2 8 The avoidance canon allows courts to refrain from striking down statutes 20 Id. at 329. 21 Id. at 348. 22 Id. at 330. 23 Id. 24 See, e.g., Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1202 (2006) (aiming to "identify those values" the avoidance canon "oper- ates in service of"). 25 See generally id. at 1202-08 (chronicling such accounts). 26 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16 (2d ed., Yale Univ. Press 1986) (1962). Some would go even further, claiming that the countermajoritarian nature of judicial review derives from its lack of clear constitutional authorization. See, e.g., Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71, 71-72. 27 See, e.g., Rust v. Sullivan, 500 U.S. 173, 191 (1991) ("This canon is followed out of respect for Congress, which we assume legislates in the light of constitutional limitations." (citing FTC v. Am. Tobacco Co., 264 U.S. 298, 305-07 (1924))). Some commentators note that this presumption does not extend to the belief that Congress also intends to avoid serious constitutional doubts when legislating. See, e.g., Morrison, supra note 24, at 1207 (con- tending that "the most historically accurate account of the move from classical avoidance to the judicial restraint theory of modern avoidance does not include a presumption of congressional intent to avoid constitutional doubts"). But cf Clark v. Martinez, 543 U.S. 371, 381 (2005) (describing the avoidance canon as "a tool for choosing between compet- ing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts"). 28 Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J., concurring in the judgment of an equally divided Court). [Vol. 10:1 A VOIDANCE CANONS AFTER CLARK V. MARTINEZ full stop, functioning as "a means of giving effect to congressional in- tent, not of subverting it."2 9 Additionally, by enabling the judiciary to avert inherently difficult constitutional issues when possible, the avoidance canon serves an- other pragmatic dimension of judicial restraint.3 0 Constitutional ad- judication is frequently difficult, requiring "elaborate doctrines and tests that go well beyond anything that can be mechanically gleaned from constitutional text."' Unnecessary constitutional adjudication risks ossifying ill-thought-out standards that legislatures and even fed- eral courts are hard pressed to undo. These concerns help situate the avoidance canon among more familiar judicial restraint princi- ples, such as standing doctrines" and narrow holdings to decide 33cases. Distinct from the judicial restraint theories above, more recent justifications for the avoidance canon focus on what Trevor Morrison calls "constitutional enforcement" values.34 Under this theory, the judiciary "giv[es] voice to constitutional norms that are real, not phantoms, and that are generally left underenforced by more con- ventional types of doctrines. ,'' Thus, usage of the canon "raise [s] ob- 29 Martinez, 543 U.S. at 382; see also INS v. St. Cyr, 533 U.S. 289, 336 (2001) (Scalia, J., dis- senting) ("The doctrine of constitutional doubt is meant to effectuate, not to subvert, congressional intent, by giving ambiguous provisions a meaning that will avoid constitu- tional peril, and that will conform with Congress's presumed intent not to enact measures of dubious validity."). 30 See ESKRIDGE,JR. ET AL., LEGISLATION, supra note 13, at 348 ("Even ifjudicial review is con- sidered a well-settled and legitimate practice, the Court's constitutional decisions raise several practical legal process issues relating to the comparative institutional competence of courts and legislatures."). 31 Id. at 349. 32 See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345-46 (1936) (Brandeis, J., concur- ring) ("The Court has ... restricted exercise of Uudicial review] by rigid insistence that the jurisdiction of federal courts is limited to actual cases and controversies; and that they have no power to give advisory opinions."); see also Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C. L. REv. 847, 847 (2005) ("One of the oldest principles of constitutional adjudication is that federal courts will decide only those constitutional questions that are necessary to the resolution of cases or controversies. This principle provides a key justification for judicial review and underlies much of the law ofjusticiabil- ity."). 33 See Ashwander, 297 U.S. at 347 (Brandeis, J., concurring) ("The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." (internal quotation marks omitted)). 34 Morrison, supra note 24, at 1212. 35 Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 TEx. L. REV. 1549, 1585 (2000); see also WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 286 (1994) (describing the avoidance canon as a "subconsti- tutional way to enforce 'underenforced' constitutional norms"). Dec. 2007] JOURNAL OF CONSTITUTIONAL LAW creates a 'judge-made constitutional 'penumbra' that has much the same prohibitory effect as the... Constitution itself."49 A practical consequence of overprotection is potentially sloppy judicial analysis of constitutional issues, muddying the waters when a later court must address these same heretofore-avoided issues. ° With these critiques in mind, critics have clamored for wholesale abandonment of the avoidance canon, 5' a goal which-if the Lowest Common Denominator Canon is any indication-will not come to fruition. Instead, these criticisms have resulted in the following un- easy compromise: an ongoing tug of war between avoidance of con- stitutional issues and fidelity to congressional intent.52 The Court's rhetoric bears this point out in the oft-quoted admonition that " [w] e cannot press statutory construction 'to the point of disingenuous eva- sion' even to avoid a constitutional question.''53 This Comment as- sumes the desirability of charting a middle course between avoidance of constitutional issues and fidelity to legislative intent, and evaluates each of the three variants of the avoidance canon in light of this cri- terion. II. THE THREE AVOIDANCE CANONS Canons of statutory interpretation are often treated as weapons to be deployed in wars over competing interpretations of a statute.-4 49 Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. CHI. L. REv. 800, 816 (1983). 50 See ESKRIDGE, JR. ET AL., LEGISLATION, supra note 13, at 351 ("Indeed, perhaps the only practical difference between invalidating the statute as unconstitutional and imaginatively interpreting it canonically is that in the latter instance the court may well do a slipshod job of constitutional analysis, failing to think through the constitutional issues because, after all, it is supposedly avoiding them."). Ernest Young has suggested two examples of constitutional analysis "sketchier than one might have expected had the Court actually had to resolve those claims on the merits." Young, supra note 35, at 1583 n.180 (citing the two paragraphs of constitutional analysis in Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575-76 (1988), and the three pages of constitutional analysis in NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 501-04 (1979)). 51 E.g., Emily Sherwin, Rules and Judicial Review, 6 LEGAL THEORY 299, 321 (2000). 52 Recall that one core argument in favor of the avoidance canon is the ability to honor leg- islative intent, at least in part, without having to invalidate a statute in its entirety. See su- pra notes 27-29 and accompanying text. 53 See, e.g., Miller v. French, 530 U.S. 327, 341 (2000) (quoting United States v. Locke, 471 U.S. 84, 96 (1985) (quoting George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933) (Cardozo,J.))). 54 See ESKRIDGE, JR. ET AL., LEGISLATION, supra note 13, at 348 ("Does the U.S. Supreme Court or state high courts deploy lucid canons, or are their weapons loose canons in- stead?"). [Vol. 10:1 AVOIDANCE CANONS AFTER CLARK V. MARTINEZ Consistent with this theme, each of the three Canons presents differ- ent opportunities for judicial manipulation, despite their largely simi- lar language. This Part compares each Canon's susceptibility to judi- cial manipulation by: (1) breaking each Canon down into a series of different questions courts must answer in determining whether to in- voke a particular Canon; and (2) assessing the extent to which these individual questions invite potential judicial manipulation. A. The Serious Constitutional Doubts Canon The earliest of the three Canons, the Serious Constitutional Doubts Canon, is ultimately the simplest for courts to use. Recall that this formulation counsels that: When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal princi- ple that this Court will first ascertain whether a construction of the stat- ute is fairly possible by which the question may be avoided. 5 5 The analytical structure of this Canon contains the following implicit questions: (1) Does the otherwise-preferred reading of a statute (i.e., the reading supported by the constitution-free principles of statu- tory interpretation) raise "serious constitutional doubts" when applied to the facts of the instant case?56 If not, a court may stop here; the court may address the merits of whatever non- serious constitutional doubts are presented by the preferred reading of the statute. (2) But if the otherwise-preferred reading of a statute raises "seri- ous constitutional doubts," is an alternative, saving construc- tion of the statute "fairly possible"? If the alternative interpre- tation is "fairly possible," then a court may adopt this alternative interpretation. If not, the court must assess the constitutionality of the preferred reading of the statute, as applied to the facts of the case.5 7 55 Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (in- ternal quotation marks omitted) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). 56 Question (1)'s inquiry would be different in the case of a facial challenge. In a typical facial challenge, a court would have to resolve whether the otherwise-preferred reading of a statute raised "serious constitutional doubts," where "no set of circumstances exists un- der which" this interpretation would be valid. Cf., e.g., United States v. Salerno, 481 U.S. 739, 745 (1987). 57 One might wonder whether these two questions are commutative, i.e., whether one might refuse to invoke the avoidance canon without evaluating the level of constitutional doubts at play by concluding that, at any rate, alternative readings of the statute are not "fairly Dec. 2007] JOURNAL OF CONSTITUTIONAL LAW These implicit questions create two opportunities for overaggressive use of the avoidance canon, as courts may either: (1) overstate the seriousness of the constitutional doubts at play; or (2) resort to "truly implausible attributions of statutory meaning""8 that are not "fairly possible" in an effort to avoid "serious constitutional doubts." This Subpart addresses the extent to which each is problematic. 1. "Serious Constitutional Doubts" Assessing the severity of constitutional doubts is, at minimum, an inherently judgment-call-driven exercise. At worst, it is a license for judicial disingenuousness. But despite well-chronicled fears that the avoidance canon leads to strained readings of statutes, 9 the most con- troversial avoidance canon cases involved situations where the Court actually downplayed the severity of the constitutional doubts at play. Thus, the Court did not use the avoidance canon when perhaps it could have. Two examples in this vein are Rust v. Sullivan60 and Al- mendarez-Torres v. United States.6' In Rust, the statute provided funding for family planning services, but not for "programs where abortion is a method of family plan- ning., 12 Under this statute, the Department of Health and Human Services promulgated regulations prohibiting funding of programs that advocated abortion or counseled pregnant mothers about abor- tion.6 s Here, the avoidance canon issue was whether these regula- tions raised sufficiently serious constitutional doubts, so as not to be permissible constructions of the funding statute. 64 possible." The Supreme Court has treated these questions as commutative, at least in situations where the constitutional doubts did not appear to be serious. See infra note 81 and accompanying text. 58 ESKRIDGE,JR. ET AL., LEGISLATION, supra note 13, at 350. 59 See supra notes 41-43 and accompanying text. 60 500 U.S. 173 (1991). 61 523 U.S. 224 (1998). 62 Rust, 500 U.S. at 178 (quoting 42 U.S.C. § 300a-6). 63 See id. at 179-80 (noting that the regulations expressly excluded "pregnancy care (includ- ing obstetric or prenatal care)," and mandated that programs must refer pregnant clients by "furnishing a list of available providers that promote the welfare of mother and un- born child"). 64 Id. at 183. Because the case concerns an administrative agency's interpretation of an or- ganic statute, Rust raises the additional complication of deference to agency interpreta- tions. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). These added complications are largely beyond the scope of this Comment. For a more detailed analysis of these issues, see generally, for example,Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. REv. 501 (2005). A second complication in Rust's avoidance canon analysis [Vol. 10: 1 A VOIDANCE CANONS AFTER CLARK V. MARTINEZ tutional doubts existed. Justice Scalia argued that if a conviction need not be included in a criminal indictment, a judge-and not a jury-could find that the alien had an aggravated felony conviction. Allowing drastically increased sentences without allowing for the right to jury trial potentially violates due process, warranting a search for an alternative construction of the statute . Rust and Almendarez-Torres exemplify the judgment calls inherent in courts' application of Question (1) of the Serious Constitutional Doubts Canon. If anything, these cases demonstrate that the Court is more likely to understate the level of constitutional doubts in close cases. Thus, despite concerns that judges use the avoidance canon as a pretext for manipulating the readings of statutes, Rust and Almen- darez-Torres are noteworthy instances where the Court refrained from using the avoidance canon, even though it plausibly could have. 2. "Fairly Possible" Alternative Statutory Interpretations Potential underusage of the avoidance canon also surfaces when assessing Question (2), whether an alternative reading, which does not raise serious constitutional doubts, is "fairly possible." An exami- nation of the Court's jurisprudence on this question yields two obser- vations. First, when the Court finds that a statute's constitutional doubts are not sufficiently serious, the Court also tends to find that an alter- nate reading of the statute is not fairly possible. In Almendarez-Torres, the majority and minority disagreed on both the level of constitu- tional doubts at play, and whether alternative readings were fairly possible. 89 Second, when petitioners raise constitutional challenges to a stat- ute, the Court sometimes disposes of its avoidance canon analysis without appraising the seriousness of the constitutional doubts at play. Instead, the Court simply concludes that, at any rate, an alter- nate construction of the statute is not fairly possible before reaching 81the merits of the constitutional issues. mon Denominator Canon resulting in departures from the natural reading of a statute. See infra Part II.C.3. 79 Almendarez-Torres, 523 U.S. at 251 (Scalia, J., dissenting). 80 See id. at 238 (majority opinion) ("[T]he statute must be genuinely susceptible to two con- structions after, and not before, its complexities are unraveled.... Unlike the dissent, we do not believe these conditions are met in the present case."). 81 See United States v. Monsanto, 491 U.S. 600, 611 (1989) (disposing of the petitioner's avoidance canon argument in one paragraph by concluding that "[h]ere, the language is Dec. 2007] JOURNAL OF CONSTITUTIONAL LA W The Serious Constitutional Doubts Canon contains two implicit questions. If anything, these questions have functioned as barriers limiting avoidance canon usage, particularly when other Justices re- garded the preferred interpretation as posing serious constitutional doubts or even as being outright unconstitutional. Less aggressive usage of the Serious Constitutional Doubts Canon lies in stark con- trast to the potentially overaggressive usage of the Clear Affirmative Intention and Lowest Common Denominator Canons. B. The Clear Affirmative Intention Canon When compared to the Serious Constitutional Doubts Canon, the Clear Affirmative Intention Canon allows greater opportunities for judicial manipulation. These opportunities become apparent when examining the Clear Affirmative Intention Canon's analytical struc- ture. Recall that this version states: The Court must avoid "serious constitutional questions,"' 2 unless "the affirmative intention of the Congress clearly expressed '"8 3 mandates reaching these questions. Inherent in this version are the following questions: (1) Has Congress "clearly expressed" an "affirmative intention" to adopt an otherwise-preferred interpretation that implicates constitutional questions? If the answer is yes, the court must reach these questions. (2) If the requisite "clear expression of an affirmative intention" to adopt the otherwise-preferred interpretation is not present, are the constitutional questions "serious?" If yes, the court must find an alternative interpretation of the statute, which does not implicate these "serious constitutional questions," and is also not "plainly contrary to the intent of Congress." 4 Comparing these questions with those implicit in the Serious Consti- tutional Doubts Canon reveals two key differences. clear and the statute comprehensive"); see also United States v. Locke, 471 U.S. 84, 96 (1985) (disposing of an avoidance canon issue in one sentence: "We cannot press statu- tory construction 'to the point of disingenuous evasion' even to avoid a constitutional question" (quoting George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933) (Car- dozoJ.))). 82 NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 501 (1979). 83 Id. 84 Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (citing Catholic Bishop, 440 U.S. at 499-501, 504). It is worth noting that Catholic Bishop does not itself employ the "plainly contrary" language. [Vol. 10:1 AVOIDANCE CANONS AFFER CLARK V. MARTINEZ First, Question (2) of the Clear Affirmative Intention Canon merely requires "serious constitutional questions," whereas Ques- tion (1) of the Serious Constitutional Doubts Canon requires "serious constitutional doubts." On its face, this slight distinction lowers the threshold for using the avoidance canon.85 Second, and more importantly, the initial "triggers" for when a statute might be eligible for avoidance canon treatment are funda- mentally different in kind. The Serious Constitutional Doubts Canon typically begins with an examination of the level of constitutional doubts at play. But the Clear Affirmative Intention Canon begins with an examination of the level of clarity in the statute instead. By requiring a clear affirmative intention, this Canon begins to resemble an "extraordinarily strong presumption, amounting to a clear state- ment rule . 5..."86 After all, rarely do statutes demonstrate a clear af- firmative intention, 7 rendering almost any statute eligible for avoid- ance canon treatment. A case in point is the statute in National Labor Relations Board v. Catholic Bishop of Chicago,ss the case setting forth the Clear Affirmative Intention Canon. Here, the Court contemplated the constitutionality of a statute, providing the Board jurisdiction over any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdi- vision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization. Before the Court were two related questions: (1) does the statute's definition of "employer" confer jurisdiction over church-operated schools, attended by both religious and secular students; and (2) if such jurisdiction exists, does the statute violate the First Amend- 85 See ESKRIDGE, JR. ET AL., LEGISLATION, supra note 13, at 354 ("If a 'serious constitutional question' is merely one that gives headaches to law students (even if it has a relatively clear answer if thought through carefully), this canon could be invoked in many cases even though the constitutionality of the statute, fairly interpreted, is not in much doubt."). 86 Id. 87 See id. ("More important, a search for an 'affirmative intention of the Congress clearly expressed' seems to be satisfied only by express statutory language or crystal-clear legisla- tive history."). 88 440 U.S. at 490. 89 Id. at 511 (Brennan,J., dissenting) (quoting 29 U.S.C. § 152(2)). Dec. 2007] JOURNAL OF CONSTTITUTIONAL LA W preferred reading of a statute. If the Clear Affirmative Intention Canon exhibits both of these failings, the Lowest Common Denomi- nator Canon does so in even more pronounced ways. C. The Lowest Common Denominator Canon 1. Background on the Lowest Common Denominator Canon The story behind the Lowest Common Denominator Canon be- gins not in Clark v. Martinez,'00 but in an earlier case, Zadvydas v. Davis.'0 ' In Zadvydas, the Court interpreted an immigration removal statute. If the government failed to remove an alien within a ninety- day removal period, the statute allows that the alien "may be detained beyond the removal period .... The precise issue in Zadvydas was whether to read in an implied restriction that would limit post-removal detention to only a reason- able period.'00 Concluding that indefinite detention of the petition- ers-admitted, but removable aliens-would "raise a serious constitu- tional problem" under the Fifth Amendment's Due Process Clause, the Court did read in a reasonableness limitation. 0 4 Although the immigrants in Zadvydas were admitted aliens, the immigrants in Martinez were not. 15 The Martinez dissenters thought that immigrants "who have not yet gained initial admission to this country... would present a very different question." 1 6 Justice Scalia conceded that "[i t is indeed different from the question decided in Zadvydas, but because the statutory text provides for no distinction between admitted and nonadmitted aliens, we find that it results in the same answer." '° Thus, despite the lack of serious constitutional doubts with respect to indefinite detention of not-yet-admitted aliens, the statute's implicit reasonableness limitation applied to both groups. Zadvydas, then, had already considered the "lowest common denominator," but Martinez was bound by the same result. 108 100 543 U.S. 371 (2005). 101 533 U.S. 678 (2001). 102 Id. at 682 (internal quotation marks omitted). 103 See id. ("[W]e must decide whether this post-removal-period statute authorized the Attor- ney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal."). 104 Id. at 689. 105 See Martinez, 543 U.S. at 373. 106 Id. at 388 (Thomas,J., dissenting) (internal quotation marks omitted). 107 Id. at 379 (majority opinion). 108 Id. at 380. [Vol. 10:1 A VOIDANCE CANONS AFTER CLARK V. MARTINEZ But instead of relying solely on the Zadvydas precedent, Justice Scalia supported his reading of the immigration statute by ushering in the heretofore-unarticulated Lowest Common Denominator Canon: "[W] hen deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail-whether or not those consti- tutional problems pertain to the particular litigant before the Court." 0 Justice Scalia explained that the Lowest Common Denominator Canon acts primarily as a tool for resolving textual ambiguity by not- ing that "[t]he canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the stat- ute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them."" 0 When making this choice, courts must be sensitive to "serious constitutional doubts""' in choosing "between competing plausible interpretations of a statutory text.. ." The rationale behind addressing the po- tential constitutional doubts a statute might create-even if these doubts do not apply in the instant case-is to forestall "the dangerous principle that judges can give the same statutory text different mean- ings in different cases." ' 1 13 Ultimately, the Lowest Common Denominator Canon breaks down into the following questions: (1) Is the statute ambiguous? If the statute is unambiguous, then a court must address the merits of whatever constitutional problems the statute presents. (2) If the statute is ambiguous, what are the "competing plausible interpretations" of the statute? (3) For each "plausible" interpretation of the statute, determine whether the interpretation presents "serious constitutional doubts" when applied to all possible litigants. If one "plausi- ble" interpretation raises "serious constitutional doubts" when applied to some potential litigants, and another "plausible" interpretation raises no such doubts with respect to any po- 109 Id. at 380-81. 110 Id. at 385 (citing Almendarez-Torres v. United States, 523 U.S. 224, 237-38 (1998) and United States ex rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)). IIl Id. at 381-82 (citing Rust v. Sullivan, 500 U.S. 173, 191 (1991) and Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1998)). 112 Id. at 381. 113 Id. at 386. Dec. 2007] JOURNAL OF CONSTITUTIONAL LAW tential litigants, then a court should adopt the latter interpre- tation for all applications of the statute. These questions reveal that Question (3) of the Lowest Common De- nominator Canon injects an extra complication for a judge attempt- ing to use it; unlike the Serious Constitutional Doubts and Clear Af- firmative Intention Canons, the Lowest Common Denominator Canon requires an assessment of constitutional doubts posed by liti- gants not before the court at all. This added complication is significant, even though the Lowest Common Denominator Canon otherwise shares notable similiarities with the Serious Constitutional Doubts Canon. Both require "serious constitutional doubts,"'1 4 not mere "serious constitutional ques- tions."1 5 Similarly, the Lowest Common Denominator Canon's limi- tation of "plausible" alternative readings seems to parallel the Serious Constitutional Doubts Canon's "fairly possible" interpretations re- quirement."6 But even though these limitations ensure that the Seri- ous Constitutional Doubts Canon is less susceptible to judicial ma- nipulation than is the Clear Affirmative Intention Canon, 117 they nonetheless fail to insulate the Lowest Common Denominator Canon from judicial manipulation. 2. The Lowest Common Denominator Canon in Action The Lowest Common Denominator's susceptibility to judicial ma- nipulation arises principally because it incorporates the Clear Af- firmative Intention Canon's same flaw: the "triggers" for both are rooted in a statute's perceived lack of clarity, not in the seriousness of doubts inherent in the preferred interpretation of the statute. This triggering effect arises in the earlier-discussed hypothetical congressional statute: The federal government's termination of an employee of an agency is unlawful, unless: (1) the employee has been convicted of a felony; or (2) because of the employee's sexual orientation, termination is determined to be advisable in the interests of the United States. 114 See supra Part I1A.1. and text accompanying note 111. 115 See supra note 82 and accompanying text. 116 See supra text accompanying note 3 and Part II.A.2. 117 See supra Part II.B. [Vol. 10:1 AVOIDANCE CANONS AFTER CLARK V. MARTINEZ facilitation of judicial manipulation of statutes; (2) the sheer diffi- culty of using the Lowest Common Denominator Canon; and (3) separation-of-powers harms. The first and most significant cost of the Lowest Common De- nominator Canon is the potential for unnecessary deviation from the preferred reading of a statute. This results from the key difference between the Serious Constitutional Doubts Canon and the Lowest Common Denominator Canon: If the otherwise-preferred reading of a statute does not raise "serious constitutional doubts" when applied to a litigant, only under the Serious Constitutional Doubts Canon does this finding end the issue. But under the Lowest Common De- nominator Canon, the ambiguity of the statute simply triggers further examination into whether the statute's application to hypothetical litigants raises serious constitutional doubts. As the Jones and Smith example shows, this further examination is the gateway to potential departure from the natural reading of the statute. In this respect, the Lowest Common Denominator Canon repli- cates the main failing of the Clear Affirmative Intention Canon: just as few statutes exhibit a clear intent to implicate constitutional is- sues, 125 few statutes are truly unambiguous. And judges may always argue that a statute is ambiguous, as statutes are subject to the inher- ent limitations of language.116 Thus, the Lowest Common Denomina- tor Canon's main failing is that every statute is potentially subject to judicial manipulation. In addition to the triggering effect of statutory ambiguity, the Canon's other interpretive difficulties impede its usefulness to judges. For one thing, application of the Lowest Common Denominator Canon never actually requires a judge to determine what the natural reading of a statute is; a judge's use of "ordinary textual analysis" need only extend far enough to show that the statute is "susceptible of more than one construction."'12 7 After that, all "competing plausi- ble interpretations"' 12 8 of a statute stand in equipoise, paving the way for the Lowest Common Denominator Canon's usage. Thus, the 125 See supra notes 86-87 and accompanying text. 126 See, e.g., H.L.A. HART, THE CONCEPT OF LAW 126 (2d ed. 1994) (arguing that because of language's inherent "open-textured" quality, "[c]anons of 'interpretation' cannot elimi- nate, though they can diminish, these uncertainties; for these canons are themselves gen- eral rules for the use of language, and make use of general terms which themselves re- quire interpretation"). 127 Martinez, 543 U.S. at 384. 128 Id. at 381. Dec. 2007] JOURNAL OF CONSTTFUTIONAL LAW Canon does not rely on the primacy of the preferred interpretation of a statute. Ignoring the primacy of the preferred interpretation has conse- quences. No longer anchored to the preferred interpretation as a reference point for their analysis, judges must instead conceptualize all constitutional challenges posed by all potential applications of all "plausible" interpretations of a statute. This requires judges to have vivid, yet accurate, imaginations, since a judge confronted with Jones's case must conceive of Smith's case, regardless of whether Smith is a litigant or not. It is easier for a judge to interpret the stat- ute in light of Smith's case, if Smith happens to be the first litigant. 129 These difficulties strongly resemble the difficulties that plague broad facial challenges. Comparative institutional competence, for example, is one of the main arguments advanced against broad facial challenges. Congress and the President have comparably greater ex- pertise in evaluating the constitutionality of a particular item of legis- lation and "may well support a bill that has numerous constitutional applications, even if they can imagine unconstitutional applications, and surely may support a bill even though they acknowledge that it might have as-yet-unimagined unconstitutional applications."130 Courts, on the other hand, "specialize in unbundling. It is precisely where their comparative competence lies. They do not vote on, sign, or veto a bill as a whole, but rather enter judgments resolving indi- vidual cases." 1 3' By requiring judges to consider as-yet-unimagined unconstitutional applications, the Lowest Common Denominator Canon also reaches beyond the judiciary's comparative competence in resolving individual cases. The sheer difficulty of using the Canon impedes its usefulness and, in so doing, upsets the separation-of- powers balance among the three branches of government. Furthermore, other separation-of-powers costs derive from the Lowest Common Denominator Canon. In addition to placing the ju- diciary outside its area of institutional competence, the Canon also 129 One potential rationale behind the Lowest Common Denominator Canon is to reduce the extent to which the order of litigants determines how a statute is interpreted. See The Supreme Court-Leading Cases: Canon of Avoidance, 119 HARV. L. REV. 386, 393 & n.60 (2005). Although the Lowest Common Denominator Canon does appear to reduce the effect of the order of litigated cases, this effect is still present. 130 Edward A. Hartnett, Modest Hope for a Modest Roberts Court: Deference, Facial Challenges, and the Comparative Competence of Courts, 59 SMU L. Rav. 1735, 1746 (2006). But for a contrast- ing view arguing that judicial rulemaking would be better served by not having to decide individual cases, see generally, for example, Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REv. 883 (2006). 131 Hartnett, supra note 130, at 1746. [Vol. 10:1 A VOIDANCE CANONS AFTER CLARK V. MARTINEZ disrupts the role that the executive branch plays in the process of constitutional avoidance 11 and statutory interpretation generally. 33 These possibilities occur even in the Jones and Smith example, if, for instance, the State Department announces a policy not to use its statutory authority to terminate gays. Executive branch enforcement, or lack thereof, creates the distinct possibility that one interpreta- tion's serious constitutional doubts might never materialize for some potential litigants. What the courts should do in cases of possible executive underen- forcement is far from clear. At a minimum, these considerations im- plicate other separation-of-powers doctrines, such as justiciability doc- trines (e.g., ripeness) and even the avoidance canon itself, both of which seek to avoid unnecessary constitutional adjudication. The Lowest Common Denominator Canon's combination of po- tential judicial manipulation, interpretive difficulty, and separation- of-powers problems create another conceptual problem: they cumu- latively undermine justifications unique to the Lowest Common De- nominator Canon. Recall that, in general, the avoidance canon'sjus- tifications lie in judicial restraint 3 4 and constitutional enforcement values. 3 5 The latter evolved to defend the avoidance canon against allegations that it allows courts to deviate from congressional in- tent. 136 But when Justice Scalia labeled the Lowest Common Denominator Canon a tool for resolving textual ambiguity,1 7 he limited this par- ticular Canon to only textualist and judicial restraint justifications. The Court confirmed as much in Spector v. Norwegian Cruise Line Ltd. 3 when it distinguished clear statement rules' 9 from the Lowest 132 See generally Morrison, supra note 24 (discussing theories that inform the executive branch's use of the avoidance canon). 133 See, e.g., Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (setting forth the now-infamous Chevron deference framework). 134 See supra text accompanying notes 25-33. 135 See supra text accompanying notes 34-40. 136 See Morrison, supra note 24, at 1212-13 ("First, if the aim of avoidance is to protect consti- tutional values by effectively 'rais[ing] the cost of any congressional encroachment within a particular area of constitutional sensitivity,' then its failure to track congressional intent is largely irrelevant." (alteration in original)); see also Cass R. Sunstein, Nondelegation Can- ons, 67 U. CHI. L. REv. 315, 338 (2000) (describing the avoidance canon as one of several "nondelegation principles... designed to ensure that Congress decides certain contested questions on its own"). 137 See supra text accompanying notes 110-13. 138 545 U.S. 119 (2005) (plurality opinion). 139 For a discussion of the similarities between the avoidance canon and clear statement rules, see Morrison, supra note 24, at 1213-16. A commonly recognized distinction be- Dec. 2007] JOURNAL OF CONSTITUTIONAL LAW An even-more-popular tactic for courts seeking to invoke the avoidance canon is just to resort to the language of the Clear Affirma- tive Intention Canon. Courts employing this Canon do not hesitate to note that mere constitutional "problems"'1 50 or "questions" '151 are present. And these courts also note the apparent necessity of alter- nate statutory readings, absent Congress's "clear" intent to implicate constitutional issues. 15 2 Now, there are three avoidance canons, and all three are techni- cally good law. But instead of cabining lower courts' ability to ma- nipulate conflicting descriptions of the avoidance canon, the Lowest Common Denominator Canon has added to the confusion. Lower courts are confused by, on one hand, the broad applicability of the Lowest Common Denominator Canon, and on the other hand, the Court's sharp distinction between clear statement rules and the Canon as simply a tool for resolving textual ambiguity. '53 States v. Spiropoulos, 976 F.2d 155, 167 (3d Cir. 1992) ("We avoid construing the guide- line as the government suggests because, as [defendant] notes, there is serious doubt as to whether the guideline, when so construed, satisfies the requirements of due process."). 150 See, e.g., James v. Meow Media, Inc., 300 F.3d 683, 695 (6th Cir. 2002) (interpreting a stat- ute to avoid "significant constitutional problems" (citing NLRB v. Catholic Bishop of Chi., 440 U.S. 490 (1979))); see also Gray-Bey v. United States, 201 F.3d 866, 869 (7th Cir. 2000) (characterizing the Catholic Bishop rule as mandating avoidance of "constitutional prob- lems"). 151 See, e.g., Neal v. Bd. of Trustees of Cal. State Univs., 198 F.3d 763, 772 (9th Cir. 1999) (re- jecting a district court's interpretation of Title IX on the grounds that the suggested in- terpretation of the statute did not "raise[] serious constitutional questions" (internal quo- tation marks omitted)); see also Comet Enter. Ltd. v. Air-A-Plane Corp., 128 F.3d 855, 859 (4th Cir. 1997) ("A court is always well advised to construe regulations in a manner that avoids such 'serious constitutional questions."' (citing Catholic Bishop, 440 U.S. at 500- 01)); U.S. Shoe Corp. v. United States, 114 F.3d 1564, 1577 (Fed. Cir. 1997) (Mayer,J., dissenting) ("Indeed, courts must strive to avoid constitutional questions." (citing Catholic Bishop, 440 U.S. at 500-01)). 152 See, e.g., Geary v. Visitation of Blessed Virgin Mary Parish Sch., 7 F.3d 324, 327 (3d Cir. 1993) (describing Catholic Bishop as inquiring, "is there a permissible construction of the statute that avoids that risk, or alternatively, is there a clear expression that Congress in- tended that the statute apply?"); see also United States v. Pohlot, 827 F.2d 889, 903 (3d Cir. 1987) (noting, in the context of a congressional attempt to bar evidence of mental ab- normality from the issue of mens rea, that "[t]he constitutional issues are sufficiently sub- stantial, [but] we are unwilling to create a rule of evidence that would raise them in the absence of explicit Congressional direction." (citing Catholic Bishop, 440 U.S. at 501)). 153 Compare Kelava v. Gonzales, 434 F.3d 1120, 1126 (9th Cir. 2006) (reading the Court's dis- tinction between clear statement rules and the avoidance canon in Spector v. Norwegian Cruise Line Ltd., 540 U.S. 119 (2005), as a limitation of Martinez), cert. denied, 127 S. Ct. 43 (2006), with Hayden v. Pataki, 449 F.3d 305, 325 (2d Cir. 2006) (declining to read Spec- tor as a limitation of Martinez, because Spector is limited only to traditionally sensitive areas, such as federalism). But some courts are now beginning to view the Lowest Common Denominator Canon as a tool for resolving statutory ambiguity. See, e.g., Price v. Time, Inc., 416 F.3d 1327, 1342 (11 th Cir. 2005) ("Courts employ the canon of constitutional [Vol. 10:1 A VOIDANCE CANONS AFTER CLARK V. MARTINEZ This initial conceptual confusion extends to confusion about the application of the Lowest Common Denominator Canon. Post- Martinez cases invoking the avoidance canon have clashed over whether a statute was ambiguous, without even citing Martinez at all. 154 Most of all, post-Martinez cases have ignored the "lowest common de- nominator" aspect of this Canon; none have yet attempted to exam- ine a statute's potential constitutional problems through the prism of hypothetical litigants. 155 To some, lower courts' disregard of the "lowest common denomi- nator" aspect of this Canon is not a cause for concern. If courts do not resort to interpreting statutes through the prism of hypothetical litigants, then wholesale judicial dismemberment of statutes remains only a theoretical possibility. But if pre-Martinez history is any indica- tion, conflicting formulations of the avoidance canon eventually end up as ammunition, deployed in wars over statutory interpretation. The Lowest Common Denominator Canon changes none of this and, instead, lurks as a potentially devastating weapon for turning once- easy cases into hard ones. CONCLUSION The three-headed hydra of avoidance canons is a far cry from the avoidance canon Justice Brandeis set forth in Ashwander. Like all avoidance as 'a tool for choosing between competing plausible interpretations of a statu- tory text.' . . . Courts do not use this tool when the text of the statute is unambiguous." (citing Clark v. Martinez, 543 U.S. 371, 381 n.5 (2005))). 154 CompareJohnson v. Governor of Fla., 405 F.3d 1214, 1229-30 (l1th Cir. 2005) (invoking the avoidance canon to adopt an alternate reading of the Voting Rights Act without citing Martinez), cert. denied, 126 S. Ct. 650 (2005), with id. at 1240 (Wilson, J., dissenting) (argu- ing that the majority's use of the avoidance canon was improper because "there is no am- biguity," and because "the 'avoidance' doctrine should not be employed as a pretext for rewriting clear statutory language"). 155 See, e.g., Davet v. City of Cleveland, 456 F.3d 549, 554-55 (6th Cir. 2006) (discussing the avoidance canon and Martinez, yet failing to mention the "lowest common denomina- tor"); Price, 416 F.3d at 1342 (same); Mgmt. Ass'n for Private Programmetric Surveyors v. United States, 467 F. Supp. 2d 596, 603 n.9 (E.D. Va. 2006) (discussing Martinez, yet refus- ing to consider hypothetical challenges to potential interpretations of a statute, reasoning that "there is no difficult constitutional issue to avoid"); V.I. Auto. Rental Ass'n v. V.I. Port Auth., No. 2001-130, 2006 WL 1875893, at *5 (D.V.1.June 30, 2006) ("Because this matter is decided on the language of the statute, this Court need not address... constitutional arguments." (citing Martinez, 543 U.S. at 381-82)); cf AARP v. EEOC, 390 F. Supp. 2d 437, 454 (E.D. Pa. 2005) (using the avoidance canon to reject the EEOC's interpretation of the Age Discrimination in Employment Act because it would have created serious con- stitutional doubts concerning the nondelegation doctrine (citing Martinez, 543 U.S. at 371)). Dec. 2007] 224 JOURNAL OF CONSTIFUTIONAL LAW [Vol. 10:1 canons of statutory construction, the avoidance canon is supposed to provide stability and guidance. The added difficulty of the avoidance canon derives from separation-of-powers issues. Judges must properly balance respect for the legislative process as a whole, respect for any individual statute's expression of legislative intent, and respect for the sensitivity of constitutional adjudication and, some would say, en- forcement. But if judicial restraint is all that matters, the Lowest Common Denominator Canon fails, creating confusion in its wake. Its failure confirms the following unusual result: even in some apparently easy cases, for any given use of the avoidance canon, another use of the avoidance canon might very well point in the opposite direction.