Avoidance Creep

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At first glance, constitutional avoidance—the principle that courts construe statutes to avoid conflict with the Constitution when possible—appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent. Then, successive decisions often magnify the problems of avoidance—a phenomenon I call “avoidance creep.” When a court distorts a statute in service of constitutional avoidance, a later court may amplify the distortion, incrementally changing both statutory and constitutional doctrine in ways that are unsupported by any rationale for constitutional avoidance.

This Article identifies the phenomenon of avoidance creep and demonstrates its wide‐ranging effects by explaining how it has warped the development of labor law in two areas. First, courts have limited unions’ abilities to engage in “secondary” strikes and picketing. Second, the Supreme Court has reduced or eliminated unions’ abilities to assess dues or other fees from represented workers, culminating in the Court’s decision in Janus v. AFSCME. Collectively, these avoidance‐driven shifts in labor law amount to a profound change in its overall character. Yet these decisions often do not result from freestanding analysis of the relevant statutes. Rather, many of these decisions flow directly from prior cases invoking constitutional avoidance as a means of reaching a decision that is dubious as a matter of statutory interpretation, constitutional analysis, or both. After documenting these problems, the Article proposes measures to promote honest examination of the role constitutional avoidance plays in doctrinal development and to mitigate its harmful consequences.

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