In my post three syntactic canons, i discussed the three canons of interpretation in scalia and garners reading law that deal with syntactic ambiguities lastantecedent canon. Avoidance canon canon of constitutional avoidance if a. A statute should be interpreted in a way that avoids placing its constitutionality in doubt. Putting these two doctrines together, i argued, should lead the court to reject the challengers broadside to the aca. Canons of construction legal definition of canons of. Principles of constitutional and statutory interpretation. The court will not pass upon a constitutional question although properly presented by the record, if there is also present. The appendix divides the canons into three conventional categories. There is a popular belief among statutory interpretation scholars that substantive canons of statutory constructionthat is, policybased background norms or presumptions such as the rule of lenity and the canon of constitutional avoidanceact as an escape valve that helps textualist judges eschew, or mitigate.
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. Avoidance canon canon of constitutional avoidance if a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. One of the paradigmatic canons, the constitutional avoidance can on, is triggered not primarily by otherwise irresolvable ambiguity, but. She works primarily in the areas of elections, ethics, and constitutional issues as part of the state and local government division of lscs research staff. For each of three paradigmatic statutory interpretation cases,2 the comment describes how the court employs the avoidance canon only after reaching an initial. I have not addressed whether congress has the constitutional power to regulate the presidents article ii powers with a clear statement, and thus have not claimed that the president is constitutionally immune from anything.
Intrinsic sources prior to midterm flashcards quizlet. Constitutional avoidancedean kloppenbergs position in her book 2 and her paper, 3 dean lisa a. Avoiding constitutional avoidance the washington post. That doctrine also known as the avoidance canon en courages a court to. Ian bartrum is an assistant professor of law at drake university law school, where he teaches constitutional law. As currently used, the constitutional avoidance canon does not actually avoid. The court ended up deciding the case on statutory grounds, using the constitutional avoidance canon to engineer a surprising and contratextual reading of the bailout provisions. Therefore, we look to the ordinary meaning of the term bribery at the time congress enacted the statute in 1961.
Including a discussion of legislative powers, constitutional regulations relative to the forms of legislation and. Where the language of a statute is plain and unambiguous, courts give effect to the statute as written, without engaging in statutory construction. The canon of constitutional avoidance directs that when a statute is. The classical avoidance canon as a principle of goodfaith construction brian taylor goldman introduction during her confirmation hearings, justice elena kagan offered a surprising take on constitutional interpretation. The legislative process, statutory interpretation, and administrative agencies c 00 2 71216 9. I could not have hoped for a more thoughtful examination of the subject. There are at least two possible formulations of the canon about avoiding constitutional questions. In the us, this canon has grown stronger in recent history. Federal courts have long employed substantive canons of construction in the interpretation of statutes. It is a fundamental canon of statutory construction.
General principles and recent trends congressional research service summary the exercise of the judicial power of the united states often requires that courts construe statutes. The constitutional avoidance doctrine is a canon of construction dictating. Every time you are facing a code requirement always look at the. Consistent meaning canon, 38 constitutional inspiration, 40 constitutional vs. The appendix also notes the level of constitutional discussion engaged in by the court or the concurring or dissenting opinion characterizing it as either significant, some, or little and the level of reliance that the opinion placed on the avoidance canon in reaching its statutory construction characterizing it as either primary. There is also a third category of common law precedents, which leading commentators have described as receiving an intermediate degree of deference somewhere between that given to statutory and constitutional decisions. Mar 11, 2015 and that you then have to invoke the standard of constitutional avoidance. Avoidance canon sometimes used interchangeably with above if a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. Substantive canons of statutory construction such as the rule of lenity. Ultimately, the court found that the 9th circuit had misapplied the canon because its interpretations of the three provisions at issue here are implausible.
Excerpt from a treatise on the rules which govern the interpretation and construction of statutory and constitutional law the treatise upon the interpretation and application of stat utery and constitutional law, like that upon the measure ofdam ages by the same author, has been, from the date of its publication, regarded as a legal classic. The continuity of statutory and constitutional interpretation. Jul 25, 2014 should federal courts apply the canon of constitutional avoidance to state statutes. His statutory argument relies on the canon of constitutional avoidance to interpret the scope of 8 u. Though constitutional avoidance may caution against such a construction. After all, he reasons, it is the courts plain duty, under the constitutional avoidance canon, to adopt any reasonable construction of a statute that escapes constitutional problems. When a federal court is faced with a choice of ruling on a statutory, regulatory. Court will eschew a plausible statutory interpretation in order to decide a difficult. Constitutional avoidance dean kloppenbergs position in her book 2 and her paper, 3 dean lisa a. Listing the canons of construction idaho state bar. Constitutional avoidance, is a canon, meaning a principle of statutory reading.
A discussion between justice antonin scalia and justice stephen breyer was held by the rehnquist center at 11. Ambiguity in plain terms can also get you to legislative history, caminetti. The canons of statutory construction and judicial preferences. Constitutional avoidance in the executive branch osf. I will focus on the distinction between statutory and constitutional precedents. This appendix collects the canons of statutory construction that have been used or developed by the rehnquist court, from the 1986 through the 1993 terms of the court inclusive. The role of the judiciary in maintaining the separation of. Equal protection usually only an issue for sex, race, etc. A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. That doctrine also known as the avoidance canon encourages a court to adopt one of several plausible interpretations of a statute in order to avoid deciding a tough constitutional question.
Germain, justice thomas concluded that because the statutory text was clear, the canon against surplusage was inapplicable. Principles of constitutional and statutory interpretation c. Review of the legality of the stellar wind program. Avoidance of unconstitutionality canon, 14 background considerations, 15 canon, 16 canons, institutional including list, 17. The legislative process, statutory interpretation, and administrative agencies linda d. State legislative drafting manuals and statutory interpretation. For example, they apply the rule of lenity, which directs that ambiguous criminal statutes be interpreted in favor of the defendant, and the avoidance canon, which directs that statutes be interpreted in a manner that prevents the court from having to address serious constitutional. Should federal courts apply the canon of constitutional. Judicial minimalism and the national dialogue on immigration. The classical avoidance canon as a principle of goodfaith. The system of basic rules and maxims applied by a court to aid in its interpretation of a written document, such as a statute or contract. What are the best articles, books, and cases that discuss. Constitutional avoidance as interpretation and as remedy.
Statutory construction and the new nondelegation doctrine david m. Dictionary use has become a common practice in modern statutory interpretation at the supreme court. Substantive canons policy rules and the rule of lenity 22 constitutional avoidance canon 22 separation of powers 22. In addition to being a cardinal principle of judicial statutory interpretation, the. The avoidance doctrine flows from the canon of judicial selfrestraint, and is. Substantive canons and faithful agency by amy coney barrett. A dictionary of statutory interpretation william d. Kavanaugh, fixing statutory interpretation, 129 harv.
The constitutional avoidance doctrine in zadvydas v. 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. There is a popular belief among statutory interpretation scholars that substantive canons of statutory constructionthat is, policybased background norms or presumptions such as the rule of lenity and the canon of constitutional avoidanceact as an escape valve that helps textualist judges eschew, or mitigate, the rigors of textualism. Canons of construction legal definition of canons of construction. Burwell and the doctrine of avoidance the atlantic. Plaintiffs and the class on their statutory claims and, for that. Jun 01, 2018 the first example is the seminal book reading law, by justice antonin scalia and linguist bryan garner. Were this a runofthemill statutory interpretation case, i would be inclined to agree with judge keenans textualist approach. This appendix collects the canons of statutory construction that have been used or. Part i develops two problems in statutory constructionthe canon of constitutional avoidance and judgemade clear statement rulesby reference to some major cases decided in. In a similar vein, justice william brennan argued that it was unnecessary to invoke the canon of constitutional avoidance. Second, to the extent these canons have descriptive value, it is often hard to disentangle their descriptive motivations from their normative ones.
Part i develops two problems in statutory constructionthe canon of constitutional avoidance and judgemade clear statement rulesby reference to some major cases decided in the supreme court. In the case of a statute, certain canons of construction can help a court ascertain what the drafters of the statuteusually congress or a state legislaturemeant by the language. Seaquist authored a paper on the constitutional avoidance canon of statutory construction for the state bar of texas litigation section report, the advocate, vol. This is a claim about the proper construction of the obstruction statutes as they apply to the president. The legislative process, statutory interpretation, and. A pronoun, relative pronoun, or demonstrative adjective generally refers to. The first example is the seminal book reading law, by justice antonin scalia and linguist bryan garner. Along the way the court signaled grave doubts about the constitutionality of the 2006 extension, emphasizing. Constitutional avoidance step zero yale law school legal. The constitutional avoidance doctrine is a canon of construction dictating that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which. Seaquist discusses the foundation of the canon, the substantive provisions of the constitutional avoidance doctrine, and the. Reconsidering substantive canons the university of chicago. Hooper,judicial minimalism and the national dialogue on immigration. On the broader formulation, the canon amounts to a general principle of abstention.
The role of the judiciary in maintaining the separation of powers. Statutory interpretation, administrative deference, and the. Substantive canons of statutory construction such as the rule of lenity or the canon of constitutional avoidance sometimes play a pivotal role in the supreme courts statutory interpretation cases. As a result, these canons have received a lot of attention from statutory interpretation scholars and court commentators. Aug 10, 2015 this argument drew on the rule against coercing the states and the canon of statutory construction that cautions courts to avoid interpretations of laws that trigger constitutional issues. But see urick, supra, at 376 arguing that the constitutional avoidance canon should be deployed before chevron deference based on a textualist account of the canon rooted in historical practice. Supreme court in a doctrine called the constitutional avoidance. According to the doctrine of constitutional avoidance, the court should seek to interpret a statute in order to avoid a constitutional question. Rule or guideline about how to read statutory language reading a general term in light of specific terms mentioned in statute. It also avoids reaching difficult constitutional questions concerning the establishment and due process clauses. Constitutional avoidance and antiavoidance by the roberts. Reconsidering substantive canons the university of. Jul 21, 2009 the court did so through a questionable application of the doctrine of constitutional avoidance.
Oscar wilde, the critic as artist 7071 green integer books 1997 1888. But see urick, supra, at 376 arguing that the constitutional avoidance canon should be deployed before chevron deference based on a textualist account of the canon rooted in historical. Finally, hatfield argues that the district court erred by not employing the constitutional avoidance canon of statutory construction to read the act in a manner that kept any of the collages from falling into the acts orbit. The court next reiterated the doctrine of constitutional avoidance as a tool of statutory construction. Principles of statutory interpretation emily wendel legislative service commission emily wendel has served as an attorney with the legislative service commission since 2011. The supreme courts construction of statutes raising free. Constitutional avoidance is the principal that, if possible, the supreme court should avoid ruling on constitutional issues, and resolve the cases before them on other usually statutory grounds. Statutory interpretation in the us is pretty complicated, and involves a number of inquiries that are often at odds with each other. A memo for the attorney general, may 2004 washington post. Avoidance canon savings construction construe statutes to avoid constitutional difficulties. 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.