{
  "id": "R43706",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R43706",
  "active": true,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 434005,
      "date": "2014-09-02",
      "retrieved": "2016-04-06T20:08:13.453093",
      "title": "The Doctrine of Constitutional Avoidance: A Legal Overview",
      "summary": "Article III of the Constitution established the judicial branch of the United States, staffing the branch with life-tenured and salary-protected judges. Amongst the powers of the federal judiciary is the power of \u201cjudicial review\u201d\u2014that is, the power to invalidate the acts of other branches of government and the states that contravene the Constitution. The Framers of the Constitution established this \u201ccountermajoritarian\u201d role for the judiciary to help protect the written Constitution and its principles against incursions from the political branches. The power of judicial review is both a potent and controversial power, as American history has been replete with examples of outcry at when unelected federal judges invalidate the acts of a democratically elected branch of government. The potential for backlash to judicial review by the political branches has resulted in what late Professor Alexander Bickel termed a \u201ccountermajoritarian difficulty,\u201d as the judiciary is needed to protect the basic principles of the Constitution, but is also necessarily dependent on the political branches to enforce the judiciary\u2019s mandates. In other words, judicial review, while necessary to protect the mandates of the Constitution, is inherently antidemocratic, risking an erosion of the judiciary\u2019s role in the American constitutional form of government.\nThe prominent solution to the potential perils of the countermajoritarian difficulty, as espoused by Professor Bickel, is that the judiciary\u2014and in particular the High Court\u2014should exercise the \u201cpassive virtues,\u201d a set of tools, such as the justiciability doctrines, with which a court can return an unsettled and controversial constitutional problem to the political realm for resolution. The logic of Bickel\u2019s theory is that by \u201cstaying its hand\u201d a court can avoid unnecessary entanglement in controversial and sensitive constitutional issues, while simultaneously allowing the judiciary to better gauge what is the appropriate constitutional principle animating a particular issue. Professor Bickel\u2019s work has been built on by Professor Cass Sunstein, who has argued that when the Supreme Court does reach the merits of a constitutional question (as opposed to avoiding the question entirely), the Court should practice \u201cjudicial minimalism,\u201d\u2014that is, in deciding cases, judges should say no more than necessary to justify an outcome and leave as much as possible undecided. Sunstein justified his theories on the grounds that minimalism reduces burdens on the Supreme Court and promotes democratic dialogue on difficult constitutional law questions. \nThe works of Professors Bickel and Sunstein are anchored in \u201cdeeply rooted\u201d precedent from the Supreme Court in a doctrine called the constitutional avoidance doctrine. The doctrine was perhaps best articulated in a concurrence by Justice Louis Brandeis in Ashwander v. TVA, in which Justice Brandeis listed seven different loosely related rules that allow a court to avoid issuing broad rulings on matters of constitutional law. A host of recent cases from the Roberts Court on some of the most controversial legal issues currently facing the nation\u2014including foreign surveillance, gay marriage, voting rights, the scope of Congress\u2019s enumerated powers, affirmative action, and mandatory union dues\u2014have deployed the Ashwander rules to avoid having the Supreme Court issue broad rulings on the Constitution. After providing general background on the power of judicial review and the major theories on the constitutional avoidance doctrine, this report explores the various rules that allow a court to avoid a ruling that invalidates a democratically enacted law and the logic behind those rules. The report concludes with an exploration of how the doctrine of constitutional avoidance has influenced some of the recent jurisprudence of the Roberts Court, criticisms of the doctrine, and the implications for Congress.",
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      "typeId": "REPORTS",
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      "topics": []
    }
  ],
  "topics": [
    "American Law",
    "Constitutional Questions"
  ]
}