This move stands in marked contrast, in my opinion, to the Roberts Court’s opinions in Rapanos v. United States and Gonzalez v. Carhart, both of which relied, at least in part, on the avoidance canon. In Rapanos, for example, the Court rejected the Army Corps of Engineers’ interpretation of the term “navigable waters” in the Clean Water Act, in part because the Corps’ expansive definition “press[ed] the envelope of constitutional validity” by eliminating “virtually all” state and local water resource planning — thereby raising serious federalism concerns. Given the federalism issues created by the Corps’ regulation, the plurality held that a clearer statement was required, in the statutory text, demonstrating Congress’ intent to let the federal agency intrude upon state and local governments’ authority. The plurality’s use of the avoidance canon—clear statement rule one-two punch in Rapanos was particularly noteworthy because it helped lead to the overturning of an Army Corps regulation that had been in place, unaltered by Congress, for 30 years. Similarly, in Carhart, the majority argued that the federal partial birth abortion statute should be construed NOT to cover the prototypical D & E procedure used in many abortions, noting that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”

What is striking to me is that whereas Rapanos and Carhart both were closely divided (5-4) cases, in this case only one Justice—Justice Thomas—took seriously petitioner’s argument that the government’s construction should be avoided because it might deprive felony defendants of an important constitutional right. (Thomas’s dissent examined the Framers’ views on independent judges and their reasons for establishing Article III judges, protected by life tenure and a guaranteed salary). Perhaps even more striking, Justice Scalia, who authored the plurality opinion in Rapanos, seems almost to argue for a reverse-clear-statement-rule in his concurring opinion in Gonzalez. Indeed, his concurrence bluntly states: “I would leave this matter of placing reasonable limits upon the right of agency in criminal trials to be governed by positive law, in statutes and rules of procedure. I would hold that petitioner’s counsel’s waiver was effective because no rule or statute provides that the waiver come from the defendant personally.” In other words, Justice Scalia would flip the avoidance-clear statement presumption in the context of criminal defendants’ waiver of their constitutional rights at trial. He would make it the default that all of a defendant’s rights (save the right to counsel) could be waived by defense counsel, absent defendant’s personal consent — and the only way around this default would be through a clear statement, in a particular statute or rule of criminal procedure, requiring the defendant’s express personal consent to waive a particular right. Talk about a clear statement rule that would turn protection of a defendant’s constitutional rights on its head! Instead of reading statutes to avoid constitutionally difficult constructions, now the presumption would be that no constitutional violation has occurred. And only a clear statement in the statutory text could reverse the presumption. This rule certainly would have the advantage of providing a bright-line—no doubt the source of its attractiveness to Justice Scalia—but it seems a little inside-out and upside-down to me.