Tuesday, July 03, 2012

Did the Chief Justice Have to Decide the Commerce Clause Question in NFIB?

Mark Tushnet

Short answer: On one view, yes. A brief course in statutory interpretation is needed here. There is a "canon" of statutory construction known as the "constitutional avoidance" canon. It comes in two versions, now labeled the "classical" version and the "modern" one. On the modern version, a judge faced with a statute that, most naturally read, raises difficult constitutional questions, should adopt instead a construction -- if one is fairly available -- that does not raise such questions. On the modern version, then, the Chief Justice didn't have to address the Commerce Clause question; all he needed to do was to note that the question was difficult and that construing the statute to impose a tax was an available reading.

The classical version is different. On that version, the canon of constitutional avoidance comes into play only when the statute, given its most natural reading, would in fact be unconstitutional. Only if it would be unconstitutional can the judge search for an alternate, available construction that would make the statute constitutional.

The Chief Justice appears to have used the classical version of the canon of constitutional avoidance in NFIB.

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