A Brand X Doctrine of Constitutional Avoidance: Avoiding Normative Canons in the Review of Administrative Interpretations of the Law

Abstract

This Article explores the conflicting commands of modern constitutional avoidance (courts must construe ambiguous statutes not only to adopt a constitutional construction but to avoid constructions that raise constitutional questions) and Chevron deference (courts must defer to an agency’s reasonable interpretation of an ambiguous statute it administers). While courts and commentators have suggested that constitutional avoidance trumps Chevron deference (at either step one or two), this Article advocates that modern avoidance should play no role in the review of administrative interpretations of law. Once Congress has empowered an agency to interpret an ambiguous statutory provision, a court cannot simply invalidate the agency’s interpretation and replace it with one the court believes better avoids constitutional questions. Instead, if an agency’s reasonable interpretation raises constitutional questions, a court must determine whether the interpretation is indeed unconstitutional and thus an impermissible interpretation at Chevron step two. This approach constitutes a return to the classical doctrine of constitutional avoidance, and it finds support in the Supreme Court’s decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services. As the Article illustrates in a variety of administrative contexts, this Brand X doctrine of constitutional avoidance is necessary to preserve a proper separation of powers between the courts, the Executive, and Congress. It is also justified under Dean Edward Rubin’s network theory of administrative law.