Skilling And Constitutional Avoidance
As lawyers who frequently litigate the construction of federal criminal statutes, federal defenders are quite fond of the doctrine of constitutional avoidance. In the Skilling case reversing the defendant’s Enron conviction for fraud, the Court provides some helpful language on the doctrine of constitutional avoidance, but also includes a potentially confusing footnote that needs some clarification.
In its detailed elaboration of constitutional avoidance in Clark v. Martinez, the Supreme Court laid out the basic principle that, if one construction of the statute raises serious constitutional questions, the other construction, if plausible, should prevail. The rule rests on the “reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” In determining whether the serious constitutional doubts apply, the Court in Martinez stated, “The lowest common denominator, as it were, must govern.”
This was an important point in Martinez. In the earlier case of Zadvydas v. Davis, the Court held that immigration authorities could not indefinitely detain deportable aliens, even though the language of the statute included no time limit. Justice Breyer in Zadvydas creatively read the statute to include a six month limit to avoid the problem of continued indefinite detention after the purpose of detention – removal to the country of origin – was no longer reasonably feasible. Justice Scalia joined the dissent in Zadvydas, excoriating the Court for writing rather than construing laws.
Here’s where the “lowest common denominator” comes in. The statute in Zadvydas included – without differentiation in treatment – inadmissible aliens such as Mariel Cubans who, under a legal fiction, could not be deported because they were legally considered to have never entered the United States. When their indefinite detention reached the Court in Martinez, this time Justice Scalia wrote for the Court, holding that the statute meant the same thing for both classes of aliens – deportable as well as inadmissible aliens. Justice Thomas dissented, asserting that detention of inadmissible aliens did not raise the same constitutional concerns as deportable aliens, so they should receive different statutory treatment. And here’s where Justice Scalia’s answer for the Court is so important in understanding and applying the doctrine of constitutional avoidance. In addressing the serious constitutional issue through construction, the constitutional danger is measured by potential applications, not necessarily the class of cases directly before the Court: “The lowest common denominator, as it were, must govern.”
This phrase from Martinez is used as a potentially confusing analogy in footnote 44 of Justice Ginsburg’s opinion in Skilling. Apart from challenges based on pre-trial publicity, Skilling involved the claim that the post-McNally honest services fraud statute was unconstitutional. In McNally, the Supreme Court reversed the evolution of the mail fraud statute to cover intangible rights such as honest services. In response, Congress wrote a statute that purported to criminalize fraud involving deprivation of honest services, which proceeded to generate extensive litigation regarding the statute’s meaning and breadth.
Justice Ginsburg wrote for the Court explaining that the honest services mail fraud statute was not void for vagueness but had to be narrowly construed to cover only kickbacks and bribery. Four other Justices agreed with the resolution of the statutory question in concurrences. Justice Scalia, joined by Justices Thomas and Kennedy, would have reversed the convictions because the statute is insufficiently definite to support a conviction and not susceptible to a saving construction. And here’s where the constitutional avoidance quarrel comes up.
Justice Ginsburg starts out with a useful description of the doctrine of constitutional avoidance and its deep roots in Supreme Court jurisprudence. In footnote 41, she quotes precedent that this “cardinal principle” can be traced to Chief Justice Marshall in 1804 and “has for so long been applied by this Court that it is beyond debate.” However, for there to be two plausible interpretations, the Court had a little difficulty coming up with cases before McNally where honest services were defined as only bribery and kickbacks. Justice Scalia attacks this point in footnote 3 of his dissent, after accusing the Court of engaging in “not interpretation but invention.” In footnote 44, Justice Ginsburg takes Justice Scalia’s bait, proceeding to provide examples of construction by constitutional avoidance, closing with a “cf." citation to Martinez – prominently attributed to Justice Scalia – that “when adopting a limiting construction, ‘[t]he lowest common denominator, as it were, must govern.’”
We need to understand that Justice Ginsburg’s citation to Martinez is a relatively distant analogy. The set up for the “lowest denominator” line in Martinez is the danger to the Constitution, not the redrawing of the statute. Here’s the context from Martinez:
"The Government, joined by the dissent, argues that the statutory purpose and the constitutional concerns that influenced our statutory construction in Zadvydas are not present for aliens, such as Martinez and Benitez, who have not been admitted to the United States. Be that as it may, it cannot justify giving the same detention provision a different meaning when such aliens are involved. It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s application, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern."
The use of Martinez in Skilling makes little difference besides providing an illustration of the potential confusion from the battle of footnotes that characterizes some opinions. But Skilling’s reaffirmation of the doctrine of constitutional avoidance is a good reminder that we should be using this defendant-friendly rule of construction to our clients’ advantage (as blogged here), even if the individual client may not be in the class of persons for whom the statute raises the serious constitutional concerns.
And there is an added bonus. Justice Ginsburg not only finds that, under the doctrine of constitutional avoidance, Congress would not intend to enact such a vague statute as to cover undefined intangible services. She also rejects the government’s efforts to add breadth to the narrow limitation to bribery and corruption by tying the rule of lenity to the doctrine of constitutional avoidance. In rejecting the government’s effort to more broadly construe the statute, she states: “Further dispelling doubt on this point is the familiar principle that ‘ambiguity concerning the ambit of criminal statues should be resolved in favor of lenity.’”
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
In its detailed elaboration of constitutional avoidance in Clark v. Martinez, the Supreme Court laid out the basic principle that, if one construction of the statute raises serious constitutional questions, the other construction, if plausible, should prevail. The rule rests on the “reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” In determining whether the serious constitutional doubts apply, the Court in Martinez stated, “The lowest common denominator, as it were, must govern.”
This was an important point in Martinez. In the earlier case of Zadvydas v. Davis, the Court held that immigration authorities could not indefinitely detain deportable aliens, even though the language of the statute included no time limit. Justice Breyer in Zadvydas creatively read the statute to include a six month limit to avoid the problem of continued indefinite detention after the purpose of detention – removal to the country of origin – was no longer reasonably feasible. Justice Scalia joined the dissent in Zadvydas, excoriating the Court for writing rather than construing laws.
Here’s where the “lowest common denominator” comes in. The statute in Zadvydas included – without differentiation in treatment – inadmissible aliens such as Mariel Cubans who, under a legal fiction, could not be deported because they were legally considered to have never entered the United States. When their indefinite detention reached the Court in Martinez, this time Justice Scalia wrote for the Court, holding that the statute meant the same thing for both classes of aliens – deportable as well as inadmissible aliens. Justice Thomas dissented, asserting that detention of inadmissible aliens did not raise the same constitutional concerns as deportable aliens, so they should receive different statutory treatment. And here’s where Justice Scalia’s answer for the Court is so important in understanding and applying the doctrine of constitutional avoidance. In addressing the serious constitutional issue through construction, the constitutional danger is measured by potential applications, not necessarily the class of cases directly before the Court: “The lowest common denominator, as it were, must govern.”
This phrase from Martinez is used as a potentially confusing analogy in footnote 44 of Justice Ginsburg’s opinion in Skilling. Apart from challenges based on pre-trial publicity, Skilling involved the claim that the post-McNally honest services fraud statute was unconstitutional. In McNally, the Supreme Court reversed the evolution of the mail fraud statute to cover intangible rights such as honest services. In response, Congress wrote a statute that purported to criminalize fraud involving deprivation of honest services, which proceeded to generate extensive litigation regarding the statute’s meaning and breadth.
Justice Ginsburg wrote for the Court explaining that the honest services mail fraud statute was not void for vagueness but had to be narrowly construed to cover only kickbacks and bribery. Four other Justices agreed with the resolution of the statutory question in concurrences. Justice Scalia, joined by Justices Thomas and Kennedy, would have reversed the convictions because the statute is insufficiently definite to support a conviction and not susceptible to a saving construction. And here’s where the constitutional avoidance quarrel comes up.
Justice Ginsburg starts out with a useful description of the doctrine of constitutional avoidance and its deep roots in Supreme Court jurisprudence. In footnote 41, she quotes precedent that this “cardinal principle” can be traced to Chief Justice Marshall in 1804 and “has for so long been applied by this Court that it is beyond debate.” However, for there to be two plausible interpretations, the Court had a little difficulty coming up with cases before McNally where honest services were defined as only bribery and kickbacks. Justice Scalia attacks this point in footnote 3 of his dissent, after accusing the Court of engaging in “not interpretation but invention.” In footnote 44, Justice Ginsburg takes Justice Scalia’s bait, proceeding to provide examples of construction by constitutional avoidance, closing with a “cf." citation to Martinez – prominently attributed to Justice Scalia – that “when adopting a limiting construction, ‘[t]he lowest common denominator, as it were, must govern.’”
We need to understand that Justice Ginsburg’s citation to Martinez is a relatively distant analogy. The set up for the “lowest denominator” line in Martinez is the danger to the Constitution, not the redrawing of the statute. Here’s the context from Martinez:
"The Government, joined by the dissent, argues that the statutory purpose and the constitutional concerns that influenced our statutory construction in Zadvydas are not present for aliens, such as Martinez and Benitez, who have not been admitted to the United States. Be that as it may, it cannot justify giving the same detention provision a different meaning when such aliens are involved. It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s application, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern."
The use of Martinez in Skilling makes little difference besides providing an illustration of the potential confusion from the battle of footnotes that characterizes some opinions. But Skilling’s reaffirmation of the doctrine of constitutional avoidance is a good reminder that we should be using this defendant-friendly rule of construction to our clients’ advantage (as blogged here), even if the individual client may not be in the class of persons for whom the statute raises the serious constitutional concerns.
And there is an added bonus. Justice Ginsburg not only finds that, under the doctrine of constitutional avoidance, Congress would not intend to enact such a vague statute as to cover undefined intangible services. She also rejects the government’s efforts to add breadth to the narrow limitation to bribery and corruption by tying the rule of lenity to the doctrine of constitutional avoidance. In rejecting the government’s effort to more broadly construe the statute, she states: “Further dispelling doubt on this point is the familiar principle that ‘ambiguity concerning the ambit of criminal statues should be resolved in favor of lenity.’”
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 7/27/2010 09:43:00 AM
2 Comments:
You misconstrue the Skilling opinion when you write that, "Justice Ginsburg wrote for the Court explaining that the honest services mail fraud statute was not void for vagueness but had to be narrowly construed to cover only CORRUPTION and bribery." (emphasis in caps added) The whole point of the case is that the statute cannot be construed as general federal anti-corruption statute. Instead the staute only covers KICKBACKS and bribery. This was probably just an oversight in your post but it has the effect of turning Skilling on its head.
Thanks for the correction!
Post a Comment
<< Home