Avoiding Constitutional Questions

Avoiding Constitutional Questions

Satisfying the case-or-controversy requirement answers only whether a federal court has power to decide a dispute. It leaves open whether the court must resolve every question the dispute contains, and for constitutional questions the Court has long answered that it need not. For its own governance in cases that are confessedly within its jurisdiction, the Court has developed a series of rules under which it has avoided passing upon a large part of the constitutional questions pressed upon it.¹ Justice Brandeis collected the best known of them in his concurring opinion in Ashwander v. Tennessee Valley Authority, and the policy that unites them is one of strict necessity: the Court decides a constitutional question only when the case cannot be resolved without it.²

The reason runs back to Marbury. Marshall justified judicial review as a reluctant power, one exercised only because the Court must decide the cases brought before it in conformity with the Constitution.³ When a case can be decided without a constitutional ruling, the occasion that justified the power is missing. Practical considerations point the same way. Judicial review sits uneasily with majority rule, and a decision resting on constitutional grounds is comparatively final, because only an amendment or a later decision of the Court can correct it, while a ruling on statutory grounds can be answered by Congress amending the statute.⁴ In his concurring opinion in the Steel Seizure Case, Youngstown Sheet & Tube Co. v. Sawyer, Justice Frankfurter added an institutional point: "Constitutional adjudications are apt by exposing differences to exacerbate them."⁵ Justice Rutledge likewise acknowledged in Rescue Army v. Municipal Court that the periods in which the Court exercised the power to avoid most readily and broadly were the periods in which the Court and judicial review had their stormiest experiences.⁶

The first of the specific rules keeps the Court out of friendly, nonadversary proceedings. A constitutional question is properly decided only as a last resort, in determining a real and earnest controversy between individuals, and a party beaten in the legislature cannot use a friendly suit to transfer to the courts an inquiry into the validity of the legislative act.⁷ The collusive-suit section showed that a manufactured dispute can fail for want of a case or controversy. This rule reaches the proceedings where adversity falls short of defeating jurisdiction but remains too thin to justify a ruling. The reason is that when both sides are content with the same outcome, no one has an incentive to test the constitutional argument, and a decision would bind the public although only one side of the question was argued.

Two further rules govern timing and breadth. The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it," and it will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."⁸ The first rule is the avoidance form of the ripeness and advisory-opinion limits: before the necessity arises, the facts that show how a law actually operates are missing, and the question may never arise at all. The second rule keeps the holding tied to its record. A rule written for the facts before the court takes its shape from them, while a broader rule commits the Court on situations it has never seen, and because constitutional rulings are comparatively final, an overbroad one is hard to retract.

The fourth rule asks the Court to look for a way out of the constitutional question inside the case itself. If a case can be decided on either of two grounds, one constitutional and the other a question of statutory construction or general law, the Court decides only the latter.⁹ The non-constitutional ground may be procedural or substantive, and it must be independent of the constitutional ground and adequate to dispose of the case.¹⁰ The adequate and independent state ground doctrine taught earlier in this chapter is one application of the rule, since the Court dismisses an appeal from a state high court when the judgment can be sustained on state law.¹¹ The logic is the same in each setting: a constitutional holding that the result does not depend on would add nothing to what the parties receive, and an opinion with no effect on the outcome is the kind of advice that Article III withholds.

The variable that moved the answer is whether the case contains an exit. In the first version the statute's own terms dispose of the dispute, so a constitutional ruling would change nothing for the parties. In the second version the constitutional question is the case, and avoiding it would mean refusing to decide a dispute properly before the court.

The fifth rule concerns who may raise the question. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation, and its own illustration is that a public official interested only in the performance of his official duty will not be heard to challenge it.¹² A companion rule withholds review at the instance of one who has availed himself of the statute's benefits.¹³ The reason for the injury rule is that an uninjured challenger has no stake that the ruling would settle, so the Court would declare the law without resolving anyone's claim. The rule overlaps with the doctrine of standing, whose core component requires a personal injury fairly traceable to the defendant's conduct and likely to be redressed, and whose remaining limits are judicially self-imposed.¹⁴

The last rule applies when the statute under challenge is itself the source of the doubt. Even when a serious doubt of constitutionality is raised, the Court will first ascertain whether a construction of the statute is "fairly possible" by which the constitutional question may be avoided.¹⁵ Courts presume that legislation is constitutional and place on the challenger the burden of showing otherwise.¹⁶ That presumption has a practical consequence when a text allows two readings, one that keeps the statute within Congress's power and one that does not. Choosing the first reading leaves the statute in force and avoids a collision with Congress, and it leaves Congress free to amend the text if it wanted the other meaning, a response unavailable after a constitutional holding. The limit is in the rule's own wording: the construction must be fairly possible, so where the text yields only one reading there is nothing to choose between and the doubt remains.

Many of these rules coincide with the justiciability doctrines studied in this chapter. The friendly-suit rule echoes the collusion doctrine, the anticipation rule echoes ripeness and the advisory-opinion ban, and the injury rule echoes standing, while some of the rules are additional principles of restraint with no justiciability counterpart.¹⁷ Because Brandeis's rules operate in cases within the Court's jurisdiction, they find their source in policy rather than purely constitutional considerations, yet several of the decisions he cited rested on purely constitutional grounds, which blurs the line between avoidance and jurisdiction.¹⁸ The classification matters for the reason the previous section gave: the Court may set aside a policy barrier when important factors counsel decision, a freedom it lacks for a limit that originates in Article III.¹⁹

The checklist returns to the question that opened this chapter, whether a federal court may decide at all. That question has two layers. The case-or-controversy requirement asks whether the court has power to rule, and Marbury placed that power inside the act of deciding a case properly before the court.²¹ The avoidance rules ask whether the case in fact requires a constitutional ruling, and they carry Marshall's reluctance one level down, because a court that can resolve the dispute on a statutory ground, a fair construction, or an independent state ground has no need to reach the Constitution.²² When every exit is closed, the first layer governs again, and the court must say what the law is, since a case that turns entirely on a statute's validity cannot be decided without choosing between the statute and the Constitution.²³ Students lose this issue when they treat a justiciable case as a guarantee of a constitutional ruling, and the opposite error is to treat avoidance as a license to dodge a question that nothing else in the case can resolve.