“The principle that we avoid premature or unnecessary constitutional decisions applies with special force here. That’s because if we do not decide the constitutional issue now, we may never have to decide it.”

November 9th, 2011

Here is Judge Kavanaugh’s take on the avoidance canon in the mandate case.

First, this case could disappear by 2015 because, by then, Congress may fix the alleged constitutional shortcoming and ensure that the Affordable Care Act’s individual mandate provision fits comfortably within Congress’s Taxing Clause power. To be clear, I do not take a position here on whether the statute as currently written is justifiable under the Taxing Clause or the Commerce Clause. What I am saying is that the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight. And just a minor tweak to the current statutory language would definitively establish the law’s constitutionality under the Taxing Clause (and thereby moot any need to consider the Commerce Clause)

Or, repeal it.

Second, but far more broadly, by 2015 Congress might choose to eliminate Section 5000A altogether – that is, eliminate this financial disincentive for failing to have health insurance. Or the President might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional.43 In one of those events, thecourts would likewise never have to opine on the constitutional issues presented in this case.

As hard as such a fix may be:

We all recognize the legislative realities that make any change unlikely, whether just to “fix” any potential constitutional problem or to take more significant action with respect to Section 5000A. After all, our constitutional system requires action by three entities before any legislative change may be approved – House, Senate, and Executive. Therefore, it is much harder to pass legislation – even technical fixes – than to block legislation. That said, there is the possibility of such legislative action that could obviate the need for the Judiciary to decide this immensely consequential constitutional issue.

But to wait until Congress fixes a statute would be judicial abdication- Ahem, NAMUDO.

To be clear, federal courts do not wait to decide constitutional cases simply because of the possibility of congressional change to the legislation or presidential nonenforcement of what the President concludes is an unconstitutional law. Delay on that basis would constitute judicial abdication, not judicial restraint. But the discussion here has been addressing the question whether there are compelling prudential considerations that would justify overriding the limits of the Anti-Injunction Act and deciding this case now. In considering that specific question, it is relevant to note that waiting to decide might mean never having to decide, a prospect that supports adherence to the Anti-Injunction Act.

Brett doesn’t want to touch the commerce clause.

But the Commerce Clause issue is extremely difficult and rife with significant and potentially unforeseen implications for the Nation and the Judiciary. Cf. Northwest Austin Municipal Utility District Number One, 129 S. Ct. at 2513.44

44 For purposes of this discussion, when referring to the Government’s Commerce Clause argument, I am referring to both the Commerce Clause and the supplementary Necessary and Proper Clause.

And it’s unprecedented!

To uphold the Affordable Care Act’s mandatorypurchase requirement under the Commerce Clause, we would have to uphold a law that is unprecedented on the federal level in American history. That fact alone counsels the Judiciary to exercise great caution. . . .

In addition, the Government’s position on the Commerce Clause carries broad implications – far broader than its position on the Taxing Clause. Under the Government’s Commerce Clause theory, as it freely acknowledged at oral argument, the Government could impose imprisonment or other criminal punishment on citizens who do not have health insurance. That is a rather jarring prospect. The Affordable Care Act does not impose such criminal penalties. But if we approve the Affordable Care Act’s mandate under the Commerce Clause, we would necessarily be approving criminal punishment – including imprisonment – for failure to comply not only with this Act but also with future mandatorypurchase requirements. Moreover, despite the Government’s effort to cabin its Commerce Clause argument to mandatory purchases of health insurance, there seems no good reason its theory would not ultimately extend as well to mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance, for example. We should hesitate to unnecessarily decide a case that could usher in a significant expansion of congressional authority with no obvious principled limit.

So Brett is like I match you Jeff, and I raise you.

Between now and 2015, Congress might keep the mandate as is and the President may enforce it as is. If that happens, the federal courts would resolve the resulting constitutional case by our best lights and would not shy away from a necessary constitutional decision. But history tells us to cross that bridge only if and when we need to. Unlike the majority opinion, I would adhere to the text of the Anti- Injunction Act and leave these momentous constitutional issues for another day – a day that may never come.

And so the 11th Circuit doesn’t feel left out!

Unlike some other courts that have upheld the mandate on Commerce Clause grounds and disclaimed the implications, the majority opinion here is quite candid – and accurate – in admitting that there is no real limiting principle to its Commerce Clause holding. The majority opinion’s holding means, for example, that a law replacing Social Security with a system of mandatory private retirement accounts would be constitutional. So would a law mandating that parents purchase private college savings accounts. I credit the majority opinion for its refreshing candor. But its acknowledgement of the extraordinary ramifications of its decision expanding Congress’s authority to impose mandatory-purchase requirements underscores why I think we should be cautious about barreling through jurisdictional limits to reach the merits, as the majority opinion does here.

Here is a nice recitation of when Courts rush, and when they don’t:

And in fulfilling their duties, courts sometimes must decide difficult and far-reaching constitutional cases sooner rather than later. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 660 (1981); United States v. Nixon, 418 U.S. 683, 686-87 (1974); Cooper v. Aaron, 358 U.S. 1, 4-5 (1958); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584 (1952). But history and precedent counsel caution before reaching out to decide difficult constitutional questions too quickly, especially when the underlying issues are of lasting significance. After all, what appears to be obviously correct now can look quite different just a few years down the road. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), overruling Minersville School District v. Gobitis, 310 U.S. 586 (1940); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (Hughes, C.J.), backing away from A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (Hughes, C.J.).

I see that Plessy and Brown are not mentioned on that list.

And this interesting footnote about the President choosing not to enforce a statute he deems unconstitutional–ahem, DOMA:

Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional. See Freytag v. Commissioner, 501 U.S. 868, 906 (1991) (Scalia, J., concurring) (the President possesses “the power to veto encroaching laws or even to disregard them when they are unconstitutional”) (citation omitted). Similarly, Congress may repeal or decline to pass a statute based on its own constitutional interpretation even if the courts have (or would have) upheld the statute as constitutional. This power does not work in reverse, either for the President or Congress. In other words, the President may not enforce a statute against a private individual when the statute is deemed unconstitutional by the courts. Nor may Congress pass a statute and have it enforced against private individuals simply because Congress disagrees with the Supreme Court. In those situations, the Judiciary has the final word on the meaning of the Constitution. See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008); Dickerson v. United States, 530 U.S. 428 (2000); United States v. Eichman, 496 U.S. 310 (1990).

And in a footnote:

At oral argument, counsel for the Government argued that a citizen who refused to obtain health insurance would still be acting lawfully. If that were true, the mandate would presumably pass muster under the Taxing Clause. But it is not evident that the statutory language is fairly susceptible to such an interpretation. That said, perhaps the canon of constitutional avoidance would allow such an interpretation of this provision and thereby squeeze it within the Taxing Clause. Cf. Northwest Austin Municipal Utility District Number One, 129 S. Ct. 2504.