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1 1 (March 29, 2022)

handle is hein.crs/govefml0001 and id is 1 raw text is: Congressional ______ A Research Service informrng the legis aive debate since 1914 ___________________ The Constitutional Avoidance Doctrine: The Last Resort Rule (Part 2 of 3) March 29, 2022 The Constitutional Avoidance Doctrine (see CRS Legal Sidebar LSB10719, The Modes of Constitutional Analysis: The Constitutional Avoidance Doctrine (Part 9)) is a set of rules the Supreme Court has developed to guide federal courts in disposing of cases that raise constitutional questions in order to minimize tensions that arise when an unelected federal judiciary sets aside laws enacted by Congress or state legislatures. Under the Constitutional Avoidance Doctrine, federal courts should interpret the Constitution only when it is a strict necessity. In a concurring opinion in Ashwander v. Tennessee Valley Authority, Justice Louis Brandeis identified seven rules comprising the Constitutional Avoidance Doctrine: (1) the Rule Against Feigned or Collusive Lawsuits; (2) Ripeness; (3) Judicial Minimalism; (4) the Last Resort Rule; (5) Standing and Mootness; (6) Constitutional Estoppel; and (7) the Constitutional- Doubt Canon. Rules (1), (2), (5), and (6) inform whether a court can hear a case (i.e., whether it is justiciable), while Rules (3), (4), and (7) inform how a court should address constitutional questions in cases before it. This Legal Sidebar Post on the Last Resort Rule is the second of three that look at this latter set of rules. Because the Constitutional Avoidance Doctrine informs how the Court is likely to resolve disputes involving the constitutionality of laws, understanding the Constitutional Avoidance Doctrine may assist Congress in its legislative activities. Under the Last Resort Rule, a court should not pass upon a constitutional question . .. if there is also present some other ground upon which the case may be disposed. Accordingly, if a court can resolve a case on both constitutional and non-constitutional grounds, the court should do so on non-constitutional grounds. By applying the Last Resort Rule, the court avoids creating constitutional precedent unnecessarily, thereby giving the political process time and opportunity to resolve contentious constitutional issues. An example of the Supreme Court's use of the Last Resort Rule is its decision in Bond v. United States. In Bond, federal prosecutors charged Carol Bond with violating 18 U.S.C. § 229, Section 201 of the Chemical Weapons Convention Implementation Act of 1998 (CWCIA), when she caused a minor thumb burn readily treated by rinsing with water to her husband's lover by applying toxic chemicals to the paramour's car, mailbox, and door knob. Bond argued that Section 229 (1) exceeded Congress's enumerated powers and invaded powers reserved to the States by the Tenth Amendment and (2) did not apply to her because her conduct, though reprehensible, was not at all 'warlike.' Faced with resolving Bond on either statutory or constitutional grounds, the Court, relying on the Last Resort Rule, considered Congressional Research Service https://crsreports.congress.gov LSB10721 CRS Legal Sidebar Prepared for Members and Committees of Congress

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