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Charlotte Garden, Avoidance Creep, __ U. Pa. L. Rev. __ (forthcoming 2020), available at SSRN

Professor Charlotte Garden already has a well-earned reputation as a leading scholar on the intersection of labor law and the First Amendment. This reputation will only be enhanced by her outstanding new article, Avoidance Creep. The article addresses a problem in labor law, and potentially other areas, involving the doctrine of “constitutional avoidance.” This doctrine provides that if one plausible reading of a statute would make its application violate the Constitution, but another plausible reading of the statute would not be unconstitutional if applied in that context, a court should, instead of ruling the statute unconstitutional, interpret the statute such that it does not violate the Constitution.

On its face, doctrine seems sensible. But Garden shows that it has been used to twist statutory language beyond its plain meaning and the intent of its drafters. Further, “avoidance creep” means that later courts amplify and magnify the original problems such that the interpretations are unmoored not only from statutory meaning and purpose but also from proper Constitutional analysis and from the defensible justifications for Constitutional avoidance. In her words, “avoidance decisions have tended to creep beyond their stated boundaries, as decision-makers either treat them as if they were constitutional precedent, or extend them into new statutory contexts while disregarding key aspects of their original reasoning.”

Garden’s examples of this phenomenon come from Supreme Court labor law cases people in the field know well: the recent Janus case barring agency fee agreements in the public sector is an endpoint. But en route, the article analyzes private-sector agency fee cases such as Hanson, Street, and Beck. The article also discusses DeBartolo Corp. and related cases involving union secondary activities and free speech rights. In these areas, she argues that avoidance creep has led to questionable constitutional interpretations (e.g., the idea that agency fee clauses implicate the First Amendment); causes courts to assume the basic constitutionality of what is actually highly problematic statutory language (e.g., bars on secondary activity); and shackles the NLRB’s ability to interpret key statutory terms (e.g., “coerced” in NLRA §8(b)(4)).

The article first discusses the Constitutional avoidance doctrine, its justifications, and criticisms of it. This section alone will likely be informative to work law scholars. Garden then shows how the doctrine was used in the foundational labor law cases noted above and uses her “avoidance creep” framework to show how later cases became increasingly removed from statutory text, coherent constitutional analysis, and the basic purpose of constitutional avoidance. She argues that constitutional avoidance has created two problems. First, after the original case, later courts wrongly assume a statutory provision would have been held unconstitutional had it been interpreted in a broader fashion. Second, future courts faced with a similar statutory provision assume their case should come out the same way as the original case that used constitutional avoidance, even if the later case actually presents no constitutional problem.

For example, Hanson, a private-sector RLA case, suggested (without holding) that some private-sector union practices might violate the First Amendment (e.g., disqualification from union membership (and therefore from employment) of workers who held certain political beliefs or associations), but Hanson did not suggest that what unions do with dues money they receive implicated First Amendment rights. Yet, five years later, Street, ostensibly following Hanson, implied that what unions did with dues created a real Constitutional issue. To avoid this alleged Constitutional issue – which again Hanson did not raise – Street held that had Congress wished to authorize union security clauses requiring full dues (a union shop), it would have had to say so absolutely explicitly. In short, avoidance creep prevented Street from using the normal tools of statutory interpretation. This, in turn, later led to a similar result in Beck for the NLRA, despite statutory language that (as the Beck dissent pointed out) clearly authorizes a union shop. It also led to both the Abood and Janus courts to assume – arguably wrongly and definitely without careful analysis –that what unions do with dues income implicates the First Amendment. Thus, Constitutional avoidance distorted both statutory interpretations in private-sector cases and Constitutional analysis in public-sector cases.

Avoidance creep created a separate problem in the area of secondary activities. In these cases, the Supreme Court has refused to strike down §8(b)(4) on First Amendment grounds. Instead, through Constitutional avoidance, the Court has placed limits on the reach of this section’s prohibitions. For example, DeBartolo distinguished between illegal secondary picketing and (apparently Constitutionally protected) legal secondary handbilling. The Court explained that handbilling is not “coercive” as the NLRA §8(b)(4) requires. Also, Tree Fruits’ held that “product picketing” (picketing a store that sells a product, where the picketing identifies the product and not the store as the object of the picketing) did not violate §8(b)(4), clearly due to constitutional concerns. Then came avoidance creep, as later courts got the holding of earlier decisions wrong. For example, Safeco wrongly asserted that Tree Fruits had actually upheld the Constitutionality of §8(b)(4), which it did not. Further, in this context, Garden argues that avoidance creep has robbed the NLRB of significant power to interpret terms such as “coerces,” since that is now a matter of Constitutional law. Most broadly, these decisions have wrongly insulated 8(b)(4) from a more complete Constitutional challenge.

A summary of this article could not do justice to the nuanced and thorough treatment Garden gives to cases and ideas. Throughout, her arguments shed revealing new light on important areas of labor law, Constitutional law, and Constitutional theory. Other articles and scholars have argued that the cases she discusses are inconsistent with First Amendment law in other areas. But this article is the first to attribute at least some of the major problems with these cases to recurring use of Constitutional avoidance, and the first to identify and describe the problem of avoidance creep. It is a remarkable achievement that this article says something about these cases that is both new and convincing. I liked it a lot.

Editor’s Note: Reviewers choose what to review without input from Section Editors. Worklaw Section Editor Charlotte Garden had no part in the editing of this article

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Cite as: Joseph Slater, Avoidance Creep, JOTWELL (January 31, 2020) (reviewing Charlotte Garden, Avoidance Creep, __ U. Pa. L. Rev. __ (forthcoming 2020), available at SSRN.  ),