Article 3, Section 2, Clause 1 — The Constitutional Doubt Canon

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Posited on the premise that Congress “legislates in the light of constitutional limitations,” [1](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-constitutional-doubt-canon#fn1art3 " Rust v. Sullivan, 500 U.S. 173, 191 (1991). See also Rostker v. Goldberg, 453 U.S. 57, 64 (1981) ( “The Congress is a coequal branch of government whose Members take the same oath as [the judiciary] to uphold the Constitution of the United States.” ). ") the Constitutional-Doubt Canon provides that federal courts should construe statutes so that they do not violate the Constitution.[2](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-constitutional-doubt-canon#fn2art3 " McFadden v. United States, 576 U.S. 186, 197 (2015) ( “[T]his canon ‘is a tool for choosing between competing plausible interpretations of a provision.’” (citations omitted)); Warger v. Shauers, 574 U.S. 40, 50 (2014) ( “[The canon] ‘has no application in the absence of . . . ambiguity.’” (citations omitted)); Scales v. United States, 367 U.S. 203, 211 (2009) ( “Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute.” ); Aptheker v. Sec’y of State, 378 U.S. 500, 515 (1964) ( “[T]his Court will not consider the abstract question of whether Congress might have enacted a valid statute but instead must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects.” ). See also Clark v. Martinez, 543 U.S. 371, 381 (2005); United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 494 (2001). ") Describing the Constitutional-Doubt Canon, Justice Louis Brandeis stated: “When the validity of an act . . . is drawn in question, and even if a serious doubt of constitutionality is raised . . . [the Court] will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” [3](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-constitutional-doubt-canon#fn3art3 " Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring). See United States v. Palomar-Santiago, No. 20-437, slip op. at 7 (U.S. May 24, 2021) ( “Courts should indeed construe statutes ‘to avoid not only the conclusion that [they are] unconstitutional, but also grave doubts upon that score.’” (citations omitted)); Nielsen v. Preap, No. 16-1363, slip op. at 25 (U.S. Mar. 19, 2019) ( “This canon provides that '[w]hen a serious doubt is raised about the constitutionality of an act of Congress, . . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’” (citations omitted)); Crowell v. Benson, 285 U.S. 22, 62 (1932) ( “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” ); Blodgett v. Holden, 275 U.S. 142, 148 (1927) ( “[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act. Even to avoid a serious doubt the rule is the same.” ); United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916) ( “A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.” ). ") Consequently, if a statute is susceptible to two plausible interpretations, one of which violates the Constitution, the Constitutional-Doubt Canon instructs courts to choose the interpretation consistent with the Constitution.[4](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-constitutional-doubt-canon#fn4art3 " Jennings v. Rodriguez, No. 15-1204, slip op. at 12 (U.S. Feb. 27, 2018) ( “When ‘a serious doubt’ is raised about the constitutionality of an act of Congress, ‘it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’” (citations omitted)); Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998) (construction of statute that avoids invalidation best reflects congressional will); United States v. Harris, 347 U.S. 612, 618 (1954) ( “[I]f this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.” ); United States v. Rumely, 345 U.S. 41, 45 (1953) (noting canon is controlling “in the choice of fair alternatives” (citations omitted)); Michaelson v. United States, 266 U.S. 42 (1924) (construing Clayton Act narrowly to avoid constitutional questions); United States ex rel. Att’y Gen. v. Del. & Hudson Co., 213 U.S. 366, 407 (1909) ( “[W]hen the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity.” ). See also Bond v. United States, 572 U.S. 844 (2014); Skilling v. United States, 561 U.S. 358, 405–06 & n.40 (2010); Gonzales v. Carhart, 550 U.S. 124, 153–54 (2007); Zadvydas v. Davis, 533 U.S. 678 (2001); United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994); Peretz v. United States, 501 U.S. 923, 929–30 (1991); Gomez v. United States, 490 U.S. 858, 864 (1989); Pub. Citizen v. Dep’t of Just., 491 U.S. 440, 465–67 (1989); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); Boos v. Barry, 485 U.S. 312, 330–331 (1988); Lowe v. SEC, 472 U.S. 181, 227 (1985) (White, J., concurring); Schneider v. Smith, 390 U.S. 17, 26 (1968); Crowell v. Benson, 285 U.S. 22, 62 (1932); Jin Fuey Moy, 241 U.S. at 401; Hooper v. California, 155 U.S. 648, 657 (1895). ") If the statute is not susceptible to a plausible constitutional interpretation, the Constitutional-Doubt Canon is inapplicable.[5](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-constitutional-doubt-canon#fn5art3 " Jennings, No. 15-1204, slip op. at 12 ( “In the absence of more than one plausible construction, the canon simply ‘has no application.’” (citations omitted)); Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933) ( “But avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered.” ). ") The Constitutional-Doubt Canon cannot be construed to make a statute broader[6](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-constitutional-doubt-canon#fn6art3 " United States v. Davis, No. 18-431, slip op. at 17 (U.S. June 24, 2019) ( “[W]hen presented with two “fair alternatives,” this Court has sometimes adopted the narrower construction of a criminal statute to avoid having to hold it unconstitutional if it were construed more broadly. But no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it. Yet that is exactly what the government seeks here.” ). ") or be applied to Executive actions.[7](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-constitutional-doubt-canon#fn7art3 " FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ( “The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts. We know of no precedent for applying it to limit the scope of authorized executive action.” ). ")

The Constitutional-Doubt Canon provides a way for the Court to avoid ruling on constitutional questions that are contentious or where the Court’s interpretation would meet with general, public disfavor. By choosing to interpret a statute to conform with constitutional requirements, the Court communicates to Congress, in effect, what the Court believes the Constitution requires. As Congress has the power to amend law, if Congress disagrees with how the Court has interpreted a statute, Congress can revise the statute. While this leaves open the possibility that the Court will have to revisit the constitutional question in the context of the revised statute, the Constitutional-Doubt Canon has allowed the issue to be publicly vetted further and possibly resolved through the political process. If Congress does not amend the statute, the Court’s constitutionally compliant interpretation of the statute governs despite another interpretation having possibly been a more natural reading of the statute.

The Court has stressed that the Constitutional-Doubt Canon does not give courts leeway to interpret a statute in a manner that effectively rewrites the statute to conform to the Constitution.[8](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-constitutional-doubt-canon#fn8art3 " Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, slip op. at 29 (U.S. June 19, 2020) ( “Constitutional avoidance is not a license to rewrite Congress’s work to say whatever the Constitution needs it to say in a given situation. Without a proffered interpretation that is rooted in the statutory text and structure, and would avoid the constitutional violation we have identified, we take Congress at its word . . . .” ); Jennings, No. <a href="/supremecourt/text/15-1204" aria-labe