I’ve been catching up on what’s new in the law reviews, and I want to recommend Neal Katyal and Thomas Schmidt’s paper in Harvard on “Active Avoidance.” Much of the article provides a well-deserved critique of the Court’s recent practice of reading statutes in absurd ways to avoid constitutional difficulties. The paper also points out that in these cases the Court introduces new constitutional arguments in dicta to explain those alleged difficulties, which do not get adequate attention then but then get cited later as authoritative.
Another part of this article that deserves more scrutiny is its attack on the Court’s recent cases suggesting that a law which is novel should be presumed unconstitutional. I’ve blogged in the past about this idea, which showed up in the Affordable Care Act case (on the individual mandate), the challenge to DOMA, and some other decisions. I’m not sure how I come down on the “anti-novelty” doctrine, but it is true that this idea clashes with the general presumption of constitutionality.