Was Chief Justice Roberts Most Unprincipled in Applying the Doctrine of Constitutional Avoidance in the Health Care Case, in NAMUDNO (the Voting Rights Act Case) or in Citizens United?
In my initial post on the health care decision, I stated “Once again, the Chief has manipulated the doctrine of constitutional avoidance to do what he wanted to do in a high profile, important case.”
I hadn’t had a chance to go back and expand on this issue since I wrote that, but Nicholas Rosenkranz’s very smart post has prompted me to do so. Rosenkranz persuasively argues that Roberts’ use of the avoidance canon in the health care case is not your typical application of the canon: rather than apply it, as is typically done, to a textual ambiguity (such as to the question whether a ban on “vehicles” in the park covers bicycles), the Chief applies to to alternative “constitutional characterizations” of an unambiguous law (the health care mandate is either an unconstitutional “penalty” or a constitutional “tax”).
As poor as this analysis is as an application of the avoidance canon, CJ Roberts engaged in two worse applications of the canon in recent years. In the NAMUDNO case, considering the constitutionality of section 5 of the Voting Rights Act, the Court read the Voting Rights Act to allow for a utility district to “bail out” from coverage under the Act, an interpretation that the Chief Justice advanced to avoid the constitutional question whether section 5 was unconstitutional. Unlike the health care case, in NAMUDNO the Court did confront a question about textual meaning (did the Voting Rights Act give the utility district a chance to “bail out” from coverage of the act?). But the unprincipled part of the decision was that the textual meaning advanced by the Chief Justice was wholly unsupported by the text or the legislative history of the Act. I devote about half of my article, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 Supreme Court Review 181, to demonstrating the truth of this assertion. Below the fold, I’ve included an excerpt from my article explaining why the district court so thoroughly rejected the argument that it should avoid the constitutional question by interpreting the Act to allow the utility district to bail out.