A Reverse Clear Statement Rule?

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2 Responses

  1. What’s so great about the constitutional avoidance doctrine? Usually it only postpones the constitutional inquiry.

    It seems that the present case did in fact rule upon the constitutional question when it found (as it must have found) that the assignment of the magistrate was, in the language of the statute, “not inconsistent with the Constitution.”

  2. Anita Krishnakumar says:

    Thanks for your comment, Anthony. Let me clarify: I’m not such a huge fan of the avoidance canon myself; in fact I think it was somewhat dubiously used in Rapanos and Carhart. My point was more that the Court’s use of the canon seems haphazard and inconsistent. And Justice Scalia’s suggested approach seems wholly at odds with the way he has applied the canon in other contexts.

    I suppose you could say that the Court ruled on the constitutional question in this case by refusing to acknowledge that any serious issue was raised, but if so it would have been nice for the Court to discuss the constitutional issues thoroughly, rather than brush them aside in a paragraph or so with policy arguments insisting, essentially, that it’s at worst harmless error to use magistrate judges. As I noted in the post, the only opinion that even attempts to talk specifically about what the Constitution requires is Justice Thomas’s dissent.