Constitutional Avoidance in the Travel Ban Case

The Ninth Circuit’s per curiam opinion in the travel ban case, which will be reviewed by the Supreme Court this Spring, found the President’s Executive Order unlawful on statutory grounds. When the Court granted certiorari, though, the following question was added: “Whether the proclamation [in other words, the Executive Order] violates the Establishment Clause of the Constitution.” Why was that done?

Here’s one idea. The Chief Justice’s bread-and-butter play in some difficult cases is to argue that a statute must be read in a certain way to avoid constitutional issues. By putting the constitutional question on the table, the Court forces the parties and amici to spend time on that question. This sets up an opinion that says that the Act must be interpreted as the Ninth Circuit did because to do otherwise and say that the Executive Order is lawful would present serious constitutional concerns.

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2 Responses

  1. Joe says:

    In McDonald v. Chicago, the privileges or immunities question apparently was there (given the final result) because Justice Thomas wanted it there. So, it’s possible that one or more justices wanted the Establishment Clause question there. I have also seen an argument that the justices want to get this over with, so they are addressing this argument to make sure it doesn’t pop up later. It’s a major argument made and was already the subject of one or more lower court opinions. But, the suggestion made is a possible factor too.

    • Brett Bellmore says:

      IOW, you think they want to foreclose all avenues of this coming back to them again with slightly different reasoning. I think so, too.