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American Bar Association




The Supreme Court’s decision in United States v. Arthrex opens a window on a set of issues debated in different contexts for decades. These issues—how to interpret statutes and constitutional provisions, what sources to look to, whether so far as possible to adopt interpretations that avoid declaring actions of coordinate branches unconstitutional, and where such actions are deemed to have been unconstitutional whether to provide remedies that cabin the most significant implications of such a declaration—go to the heart of the judicial role and the division of responsibilities among the branches of government.

Our principal focus, however, is on the question of remedy. When the Court’s members find that a plausible—really, the most plausible—reading of a law would make it unconstitutional, what should the Court do? Many Supreme Court pronouncements and much academic commentary suggest that courts should interpret statutes to be consistent with the Constitution whenever possible, even if that requires some degree of judicial creativity. That instinct has a long and distinguished pedigree, but it is ultimately a much-overstated direction to the courts.

Following an introduction, Part II of this article reviews the background and opinions in Arthrex. Part III describes the precedents respecting remedies for structures that the Supreme Court has found violate constitutional requirements. We return in that Part to the reasons that Arthrex’s remedy is at odds with generally accepted, and well-grounded, approaches to dealing with separation-of-powers problems. Part IV considers arguments for different approaches to interpretation and remedy when the Supreme Court faces potential constitutional concerns. This Part concludes with discussion of pragmatic problems that Arthrex-style remedies pose for decisionmaking by Congress and the Court.

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