Constitutional avoidance is a legal doctrine of judicial review in United States constitutional law that dictates that United States federal courts should refuse to rule on a constitutional issue if the case can be resolved without involving constitutionality. In Ashwander v. Tennessee Valley Authority (1936), the Supreme Court of the United States established a seven-rule test for the justiciability of controversies presenting constitutional questions:
Collusive lawsuit rule: The Court will not [rule] upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."
Ripeness: The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it."
Minimalism: The Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."
Last resort rule: The Court will not [rule] upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. ... [I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
Standing; Mootness: The Court will not [rule] upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.
Constitutional estoppel: The Court will not [rule] upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
Constitutional avoidance canon: "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."[1][2]
The avoidance doctrine flows from the canon of judicial restraint and is intertwined with the debate over the proper scope of federal judicial review and the allocation of power among the three branches of the federal government and the states. It is also premised on the "delicacy" and the "finality" of judicial review of legislation for constitutionality, concerns regarding the credibility of the federal courts, and the "paramount importance of constitutional adjudication in our system."[3] Those elements demonstrate a significant overlap between the avoidance doctrine and other jurisdictional or justiciability barriers. The avoidance doctrine reflects such other justiciability doctrines as standing and ripeness, and permeates jurisdictional doctrines like Pullman abstention and the adequate and independent state ground doctrine.
^Nolan, Andrew (September 2, 2014). The Doctrine of Constitutional Avoidance: A Legal Overview (Report). Congressional Research Service. p. 9. Archived from the original on December 30, 2023. Retrieved December 27, 2023.
^Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–348 (1936)
^Rescue Army v. Municipal Court of L.A., 331 U.S. 549, 571 (1947) (reciting a nonexhaustive list of grounds supporting the avoidance doctrine); see also Paul A. Freund (1957). "Introduction". In Alexander M. Bickel (ed.). The Unpublished Opinions of Mr. Justice Brandeis. University of Chicago Press. p. xvii. ISBN 978-0226046020. (Judicial self-restraint is premised on an "awareness of the limits of human capacity, the fallibility of judgment, the need for diffusion of power and responsibility, the indispensability of husbanding what powers one has, of keeping within bounds if action is not to outrun wisdom.").
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