The Obscure Legal Doctrine Guiding the Supreme Court Into Oblivion

The principle of constitutional avoidance isn’t innately absurd. The court has previously applied the principle in more parsimonious fashion to (arguably) less silly-seeming results. One example is Masterpiece Cakeshop in 2018, where a seven-person majority—including Alito and Gorsuch, with a Thomas concurrence—elected to avoid the complex constitutional issue of how the right to same-sex marriage intersected with First Amendment protections, and instead disposed of the case on the basis that the state commission in question had demonstrated a particular hostility toward religious beliefs.

Similarly, in Zadvydas v. Davis, the 2001 case in which the Supreme Court found that aliens cannot be held indefinitely because to do so would violate the due process clause—that is to say, it would create a constitutional issue—the court went so far as to reprimand the Fifth Circuit for using constitutional avoidance to dodge an undodgeable issue, admonishing that constitutional avoidance only “allows courts to choose among constructions which are fairly possible … not to press statutory construction to the point of disingenuous evasion even to avoid a constitutional question.” But if you smash-cut to the present moment, suddenly the Supreme Court’s chiding of the Fifth Circuit may as well be a description of its own way of doing business.

Constitutional avoidance is one of those lawyerly principles that makes perfect sense in the abstract, and only in the abstract. For constitutional avoidance to work the way it is supposed to, the government has to be functioning the way it was designed, with an executive branch that stays largely within the bounds of its power, a legislative branch that is actively legislating, and a judiciary that does more than rubber-stamp policies that align with its politics. But constitutional avoidance doesn’t work with a president who is not merely unaware that his power has constitutional boundaries but is intent on erasing them. That is precisely the situation in which a constitutional issue cannot be avoided. Thus, when the Supreme Court still insists on avoiding it, it ends up creating a legal world in which it is impossible to have a constitutional problem—which is why it is so striking when the Supreme Court finally decides to draw one small line in the sand.