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.