Constitutional Necessity (Ashwander) vs. Constitutional Avoidance

From United States v. Whitted, 541 F.3d 480 (3d Cir. 2008) (Chagares, J., concurring):

"It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U.S. 283, 295, 25 S. Ct. 243, 49 L. Ed. 482 (1905). Such restraint is well-established and recognized universally. See, e.g., Mills v. Rogers, 457 U.S. 291, 305, 102 S. Ct. 2442, 73 L. Ed. 2d 16 (1982) ("It is this Court's settled policy to avoid unnecessary decisions of constitutional issues.").

The most often-cited enunciation of this concept comes from Justice Brandeis' famous concurrence in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936), where he summarized certain prudential principle that the Supreme Court "developed ... for its own governance in the cases confessedly within its jurisdiction ... ." Id. at 346 (Brandeis, J., concurring). Under this "series of rules," the Court "has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." Id. One such rule was that "[t]he Court will not anticipate a question of constitutional law in advance of the necessity of deciding it ... ." Id. (quotation marks omitted). We have recognized that this "Ashwander principle [] calls for the avoidance of ruling on federal constitutional matters in advance of the necessity of deciding them, to postpone judicial review where it would be premature." Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 413 (3d Cir. 1992) (citation omitted).

[Footnote 13] This prudential rule of constitutional interpretation is related — but not identical — to the concept of constitutional avoidance. The latter applies "[w]here an otherwise acceptable construction of a statute would raise serious constitutional problems...." Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988). In such cases, "the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." Id.; see also Arizonans for Official English v. Arizona, 520 U.S. 43, 78, 117 S. Ct. 1055, 137 L. Ed. 2d 170 (1997) ("Federal courts, when confronting a challenge to the constitutionality of a federal statute, follow a 'cardinal principle': They 'will first ascertain whether a construction ... is fairly possible' that will contain the statute within constitutional bounds.") (quoting Ashwander, 297 U.S. at 348) (Brandeis, J., concurring); United States v. Grier, 475 F.3d 556, 567 n.7 (3d Cir. 2007) (describing concept); United States v. Ali, 508 F.3d 136, 147 (3d Cir. 2007) (stating that constitutional avoidance "applies to statutory interpretation only where there is doubt whether an otherwise acceptable construction of a statute would raise serious constitutional problems") (quotation marks omitted).

Powerful considerations, both theoretical and practical, underpin this concept. See New Jersey Payphone Assoc. v. Town of West New York, 299 F.3d 235, 249 (3d Cir. 2002) (Alito, J., concurring) ("The rationales behind the doctrine of avoiding constitutional questions except as a last resort are grounded in fundamental constitutional principles — the great gravity and delicacy of judicial review, separation of powers, the paramount importance of constitutional adjudication, the case or controversy requirement, and principles of federalism.") (quotation marks omitted). Just a few examples will suffice here. First, and most simply, the rule avoids wasting scarce judicial resources. Second, "[t]he concern that unnecessary decisions be avoided has its most important justification in the prospect that unnecessary decisions may be wrong decisions." 13 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3531.3 (3d ed. 2000). Third, our adversary system requires litigants to present — as squarely as possible — the narrow and exact question to be decided. This is because "specific facts stimulate more comprehensive and accurate adjudication than the flights of fancy. The concrete circumstances presented by a plaintiff who has suffered actual injury may illuminate the abstract issues, and help establish the limits of the decision for future cases." Id. In fact, "[t]he simplest theoretical perspective on standing draws directly from our tradition that unnecessary judicial decisions should be avoided." Id.; see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) (observing that standing rules are consistent with the principles that commit courts to pass on constitutional questions only when necessary).

See also SEC v. Pirate Investor LLC, 2009 U.S. App. LEXIS 20455 (4th Cir. Sept. 15, 2009) (“our conclusion that constitutional [First Amendment] concerns do not compel an exclusion from § 10(b) for Appellants' conduct does not answer this question. The canon of constitutional avoidance is a method of statutory interpretation, not a way of adjudicating constitutional issues.”).

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