Anti-Anti-Evasion in Constitutional Law

Abstract

In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their function in optimizing constitutional enforcement is likely worth the costs they impose.

But the Court’s use of AEDs is not foreordained. In notable areas of constitutional doctrine, the Court has declined to create AEDs in situations that seemingly invite it to do so. This paper addresses this phenomenon, which we term “anti-anti-evasion,” and seeks to understand why the Court employs AEDs in some contexts but not in others. After furnishing a number of examples of anti-anti-evasion, we identify and evaluate the reasons the Court gives for declining to create AEDs. Because these reasons do not tell the whole story, we also pose a working hypothesis – i.e., the Court will not create AEDs where it believes that the constitutional principle is adequately protected by robust political safeguards, and this occurs primarily in cases involving taxing or spending decisions, including the provision of government-subsidized goods and services. Support for this hypothesis is found in a number of the Court’s AED and anti-anti-evasion decisions, including the much-awaited decision in National Federation of Independent Business v. Sebelius.

Apart from academic curiosity, the hypothesis (if correct) has broader implications. First, it helps to demonstrate that the formulation of constitutional doctrine is a type of risk regulation where the Court employs decision rules in an effort to achieve optimal (as opposed to maximal) protections. Second, it expands on earlier work by other scholars that considered possible reasons for why the Court might choose one set of decision rules over another, thereby contributing to the ongoing effort to describe accurately what courts actually do when they decide cases. Third, our hypothesis hopefully will encourage the Justices to be more intentional in selecting among available decision rules, and perhaps more transparent in the reasoning behind the adoption of one set over others. Finally, our hypothesis should prove useful to practicing lawyers in crafting constitutional arguments.