ArtIII.S2.C1.2.9 Constitutional Avoidance Doctrine

Article III, Section 2, Clause 1:

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Doctrine of Strict Necessity

The Court has repeatedly declared that it will decide constitutional issues only if strict necessity compels it to do so. Thus, constitutional questions will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied, nor if the record presents some other ground upon which to decide the case, nor at the instance of one who has availed himself of the benefit of a statute or who fails to show he is injured by its operation, nor if a construction of the statute is fairly possible by which the question may be fairly avoided.1

Speaking of the policy of avoiding the decision of constitutional issues except when necessary, Justice Rutledge wrote: The policy’s ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.2

Disallowance by Statutory Interpretation

If it is possible to construe a statute so that its validity can be sustained against a constitutional attack, a rule of prudence is that it should be so construed,3 even though in some instances this constitutional doubt maxim has caused the Court to read a statute in a manner that defeats or impairs the legislative purpose.4 Of course, the Court stresses that [w]e cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.5 The maxim is not followed if the provision would survive constitutional attack or if the text is clear.6 Closely related to this principle is the maxim that, when part of a statute is valid and part is void, the courts will separate the valid from the invalid and save as much as possible.7 Statutes today ordinarily expressly provide for separability, but it remains for the courts in the last resort to determine whether the provisions are separable.8


  1.  Jump to essay-1Rescue Army v. Municipal Court, 331 U.S. 549, 568–75 (1947). See also Berea College v. Kentucky, 211 U.S. 45, 53 (1908); Siler v. Louisville & Nashville R.R., 213 U.S. 175, 191 (1909); Carter v. Carter Coal Co., 298 U.S. 238, 325 (1936); Coffman v. Breeze Corp., 323 U.S. 316, 324–325 (1945); Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944); Alma Motor v. Timken Co., 329 U.S. 129 (1946). Judicial restraint as well as considerations of comity underlie the Court's abstention doctrine when the constitutionality of state laws is challenged.
  2.  Jump to essay-2Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947).
  3.  Jump to essay-3Bond v. United States, 572 U.S. ___, No. 12–158, slip op. (2014); United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994); Rust v. Sullivan, 500 U.S. 173, 190–91 (1991); Pub. Citizen v. DOJ, 491 U.S. 440, 465–67 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
  4.  Jump to essay-4E.g., Michaelson v. United States, 266 U.S. 42 (1924) (narrow construction of Clayton Act contempt provisions to avoid constitutional questions); United States v. Harriss, 347 U.S. 612 (1954) (lobbying act); United States v. Seeger, 380 U.S. 163 (1965): Welsh v. United States, 398 U.S. 333 (1970) (both involving conscientious objection statute).
  5.  Jump to essay-5United States v. Locke, 471 U.S. 84, 96 (1984) (quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)).
  6.  Jump to essay-6Rust v. Sullivan, 500 U.S. 173, 191 (1991); but compare id. at 204–07 (Justice Blackmun dissenting), and 223-225 (Justice O’Connor dissenting). See also Peretz v. United States, 501 U.S. 923, 929–930 (1991).
  7.  Jump to essay-7Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 635 (1895); but see Baldwin v. Franks, 120 U.S. 678, 685 (1887), now repudiated. Griffin v. Breckenridge, 403 U.S. 88, 104 (1971). In Kimbrough v. United States, 128 S. Ct. 558, 577 (2007), Justice Thomas, dissenting, referred to our longstanding presumption of the severability of unconstitutional applications of statutory provisions.
  8.  Jump to essay-8See Whole Woman’s Health v. Hellerstedt, 579 U.S. ___, No. 15-274, slip op. at 37 (2016) (noting that while as a general matter courts will honor a legislature’s preference with regard to severability, severability clauses do not impose a requirement on courts that are confronted with facially unconstitutional statutory provisions, as such an approach would inflict enormous costs on both courts and litigants in parsing out what remains of the statute); see also Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329 (2006) (discussing how a severability clause is not grounds for a court to devise a judicial remedy that . . . entail[s] quintessentially legislative work.); Reno v. ACLU, 521 U.S. 844, 884–85 n.49 (1997) (noting the limits on how broadly a court can read a severability clause); see generally Dorchy v. Kansas, 264 U.S. 286, 290 (1924) (concluding that a severability clause is an aid merely; not an inexorable command.)