LESSON 6: HIERARCHY OF LEGAL SOURCES
6.2 Priority of Blackletter Primary Authority
6.2.1 Constitutional Law vs. Statutory Law
Annotated Lecture Transcript
So, what about the 3 blackletter sources of primary legal authority?
You already know the hierarchy of these sources because I’ve mentioned it numerous times throughout this course.
Ø Constitutional Law is the highest;
Ø Statutory Law is second highest; and
Ø Administrative Law is the lowest.
What happens if a statute conflicts with the Constitution?
Of course, the Constitution wins.
This is because of the Supremacy Clause of Article VI, cl. 2 of the United States Constitution.
Pretty simple, right?
So why do I need to bore you with a full section on priority of blackletter primary authority?
Because—like most things in the legal field—this basic understanding of the hierarchy becomes a bit more nuanced when applied by judges in practice.
In this section, I’m going to quickly run through a few important concepts that explain why constitutional law is not the most important source of law in U.S. intelligence law despite being the “supreme law of the land.”
First of all, there are canons of constitutional and statutory interpretation that affect how often constitutional law issues are decided by courts.
For example, there is an important doctrine called the “Doctrine of Constitutional Avoidance”—it’s also sometimes referred to as the “Doctrine of Constitutional Doubt.”
This doctrine is a self-imposed rule of judicial restraint—imposed by judges on themselves.
It stands for the principle that the courts should respect the legislature’s will whenever possible and avoid issuing binding judicial decisions on the constitutionality of a statute if the dispute can be resolved on other grounds.
Judges should only use the Constitution to overrule an act of Congress as a last resort.
Proponents of the doctrine believe that when constitutional issues are presented in a case, judges should always attempt to decide the case on statutory or other grounds before taking what they consider to be the more “drastic” action of issuing a constitutional decision because constitutional decisions are binding on the entire nation and generally have much broader implications that extend far beyond what is necessary to resolve the legal dispute presented by the case under consideration.
Proponents claim this leads to greater stability and predictability of the law.
They also feel this approach is more in line with principles of democracy, by respecting the primary role of elected representatives in the political branches of our government rather than allowing individual judges to countermand the will of the majority of our elected legislature by fiat.
Critics of the doctrine, however, point out that excessive reluctance by judges to decide difficult constitutional questions leaves the rights of American minorities poorly defended against the legislative abuses that so often stem from base majoritarian prejudices and the vicissitudes of public opinion.
Some critics see it as a form of judicial cowardice at best, and a dereliction of duty at worst, when judges work so hard to avoid resolving critical constitutional questions by first twisting logic to interpret potentially unconstitutional statutory language in any way that will allow them to dispose of the case without actually resolving the underlying constitutional ambiguity that spawned the litigation.
The most thorough statement of the Doctrine of Constitutional Avoidance comes from Justice Brandeis’s concurrence in Ashander v. Tennessee Valley Authority.
In that opinion, Justice Brandeis highlighted the historical tradition and vital importance of judicial restraint when exercising the power to overturn duly enacted legislation by Congress on constitutional grounds.
He reviewed the relevant jurisprudence and distilled their holdings into 7 scenarios when the Court should abstain from invalidating a statute:
1. “The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals.
It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.”
2. “The Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it.”
“It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”
3. “The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’”
4. “The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.
This rule has found most varied application.
Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”
“Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground.”
5. “The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.
Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right.
Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained.”
“In Fairchild v. Hughes, 258 U. S. 126, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional.
In Massachusetts v. Mellon, 262 U. S. 447, the challenge of the federal Maternity Act was not entertained, although made by the Commonwealth on behalf of all its citizens.”
6. “The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.”
7. “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.”
Ø DeBartolo Corp. v. Florida Gulf Coast Trades Council (1988): So, let’s start with Plan A.
o The first thing courts will do when trying to avoid constitutional questions is to find a viable interpretation of the statutory text that doesn’t raise constitutional problems.
o The Supreme Court discussed this first approach in a 1988 case: DeBartolo Corp. v. Florida Gulf Coast Trades Council.
o They said:
§ “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. . . .
§ ‘The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’
§ This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution.”
o This grave doubt as to the constitutionality of a particular statutory interpretation must be held by a majority of the Court.
Ø Reasonableness through Interpolation: Well, what happens if the text isn’t malleable enough on its face to allow the necessary interpretation?
o Well, then you move to Plan B.
o If “interpretation” fails, courts turn to “interpolation.”
o Judges will inject a phantom “reasonableness” requirement into the problematic provision.
o This has the effect of tempering unconstitutionally broad authority so it can be used by the government only in constitutionally permissible ways.
o Zadvydas v. Davis (2001): A great example of this comes from a pre-9/11 case called Zadvydas v. Davis.
§ That case involved a statute that gave the INS the power to detain aliens who were under a final order of removal and awaiting deportation.
§ Ordinarily, the statute allowed the INS to detain a removable alien for up to 90 days leading up to actual deportation.
§ In the case of dangerous aliens, however, the statute also allowed the INS to detain them beyond this 90-day period if there were difficulties effecting the deportation.
§ Well, a few cases came up where aliens had been detained but were unable to be deported because no country was willing to accept them.
§ This led to a few rare situations where the broad statutory authority to detain an alien beyond the 90-day removal period resulted in an unintended license to imprison non-removable aliens indefinitely without trial.
§ To avoid the serious due process implications of indefinite detention without trial, the Supreme Court read in a “reasonable time” limitation into the power granted to the INS by the statute.
§ The power to detain aliens beyond the 90-day removal period was limited to a period of time reasonably necessary to effect the deportation.
§ In the interests of uniformity, the Court held this reasonable time period to be 6-months.
§ So, the INS was understood to have the power to detain a removable alien prior to deportation for up to 6 months beyond the initial 90-day removal period, but if it became clear that deportation was not reasonably foreseeable after that time had elapsed, then continued detention by INS would be presumed to be unreasonable and therefore no longer authorized by the statute.
§ This presumption could be rebutted by the agency, but absent such a showing, they would be required to release the alien back into the general population.
§ An individual’s liberty was seen as more important than the government’s interest in preventing speculative dangers posed by a person they’d classified as “dangerous.”
§ You can tell this is a pre-9/11 case.
§ Although this case was decided in 2001, the opinion was issued on June 28th—less than 3 months before individual liberty changed forever on 9/11.
 U.S. Const., art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”).
 See Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (“It is a cardinal principle" of statutory interpretation, however, that when an Act of Congress raises "a serious doubt" as to its constitutionality, "this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, 76 L. Ed. 598, 52 S. Ct. 285 (1932); see also United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 130 L. Ed. 2d 372, 115 S. Ct. 464 (1994); United States v. Jin Fuey Moy, 241 U.S. 394, 401, 60 L. Ed. 1061, 36 S. Ct. 658 (1916); cf. Almendarez-Torres v. United States, 523 U.S. 224, 238, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998) (construction of statute that avoids invalidation best reflects congressional will). We have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation. See United States v. Witkovich, 353 U.S. 194, 195, 202, 1 L. Ed. 2d 765, 77 S. Ct. 779 (1957) (construing a grant of authority to the Attorney General to ask aliens whatever questions he "deems fit and proper" as limited to questions "reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue"). For similar reasons, we read an implicit limitation into the statute before us.”).
 See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (J. Brandeis, concurring) (“The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. [...] Thus, if a case can be decided upon two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”); see also Yule Kim & George Costello, Congressional Research Serv., Statutory Interpretation: General Principles and Recent Trends (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf (“The doctrine of ‘constitutional doubt’ requires courts to construe statutes, ‘if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.’ Citing: United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916); Almendarez-Torres v. United States, 523 U.S. 224, 237-38 (1998); Jones v. United States, 529 U.S. 848, 857 (2000).”).
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-47 (1936) (Brandeis, J., concurring).
 Specifically, Justice Brandeis stated that “[t]he Court has frequently called attention to the ‘great gravity and delicacy’ of its function in passing upon the validity of an act of Congress, and has restricted exercise of this function by rigid insistence that the jurisdiction of federal courts is limited to actual cases and controversies, and that they have no power to give advisory opinions. On this ground, it has in recent years ordered the dismissal of several suits challenging the constitutionality of important acts of Congress. […] The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring) (internal citations omitted). He then proceeded to list the 7 rules composing the Constitutional Avoidance Doctrine that are quoted verbatim in the text of the script. See Id. at 345-47.
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-47 (1936) (Brandeis, J., concurring).
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring) (citing Chicago & Grand Trunk Ry. v. Wellman, 143 U. S. 339, 143 U. S. 345.).
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring) (citing Liverpool, N.Y. & P. S.S. Co. v. Emigration Commissioners, 113 U. S. 33, 113 U. S. 39; Abrams v. Van Schaick, 293 U. S. 188; Wilshire Oil Co. v. United States, 295 U. S. 100.).
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring) (citing Burton v. United States, 196 U. S. 283, 196 U. S. 295.).
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring) (citing Liverpool, N.Y. & P. S.S. Co. v. Emigration Commissioners, supra; compare Hammond v. Schapp Bus Line, 275 U. S. 164, 275 U. S. 169-172.).
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (citing Siler v. Louisville & Nashville R. Co., 213 U. S. 175, 213 U. S. 191; Light v. United States, 220 U. S. 523, 220 U. S. 538.)
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (citing Berea College v. Kentucky, 211 U. S. 45, 211 U. S. 53.)
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (citing 179 U. S. 621.)
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring).
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (citing Columbus & Greenville Ry. v. Miller, 283 U. S. 96, 283 U. S. 99-100)
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (citing Great Falls Mfg. Co. v. Attorney General, 124 U. S. 581; Wall v. Parrot Silver & Copper Co., 244 U. S. 407, 244 U. S. 411-412; St. Louis Malleable Casting Co. v. Prendergast Construction Co., 260 U. S. 469.).
 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (citing Crowell v. Benson, 285 U. S. 22, 285 U. S. 62).
 DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575 (1988) (quoting Hooper v. California, 155 U.S. 648, 657 (1895)).
 See Yule Kim & George Costello, Congressional Research Serv., Statutory Interpretation: General Principles and Recent Trends (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf (“‘Grave doubt’ as to constitutionality does not arise simply because a Court minority — even a minority of four Justices — believes a statute is unconstitutional; rather, a Court majority must ‘gravely . . . doubt that the statute is constitutional.’” Citing: Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998) (citing Rust v. Sullivan, 500 U.S. 173, 191 (1991).”).
 See Zadvydas v. Davis, 533 U.S. 678 (2001) (Facts from Official Syllabus: “After a final removal order is entered, an alien ordered removed is held in custody during a 90-day removal period. If the alien is not removed in those 90 days, the post-removal-period detention statute authorizes further detention or supervised release, subject to administrative review. Kestutis Zadvydas, petitioner in No. 99-7791 -- a resident alien born, apparently of Lithuanian parents, in a German displaced persons camp -- was ordered deported based on his criminal record. Germany and Lithuania refused to accept him because he was not a citizen of their countries; efforts to send him to his wife's native country also failed. When he remained in custody after the removal period expired, he filed a habeas action under 28 U.S.C. § 2241. The District Court granted the writ, reasoning that, because the Government would never remove him, his confinement would be permanent, in violation of the Constitution. In reversing, the Fifth Circuit concluded that Zadvydas' detention did not violate the Constitution because eventual deportation was not impossible, good faith efforts to remove him continued, and his detention was subject to administrative review. Kim Ho Ma, respondent in No. 00-38, is a resident alien born in Cambodia who was ordered removed based on his aggravated felony conviction. When he remained in custody after the removal period expired, he filed a § 2241 habeas petition. In ordering his release, the District Court held that the Constitution forbids post-removal-period detention unless there is a realistic chance that an alien will be removed, and that no such chance existed here because Cambodia has no repatriation treaty with the United States. The Ninth Circuit affirmed, concluding that detention was not authorized for more than a reasonable time beyond the 90-day period, and that, given the lack of a repatriation agreement, that time had expired.”).
 See Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (“In our view, the statute, read in light of the Constitution's demands, limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention.”).
 See Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (“Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.”).
 See Zadvydas v. Davis, 533 U.S. 678 (2001) (Holding 2 from Official Syllabus: “The post-removal-period detention statute, read in light of the Constitution's demands, implicitly limits an alien's detention to a period reasonably necessary to bring about that alien's removal from the United States, and does not permit indefinite detention. Pp. 8-19. (a) A statute permitting indefinite detention would raise serious constitutional questions. Freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause. Government detention violates the Clause unless it is ordered in a criminal proceeding with adequate procedural safeguards or a special justification outweighs the individual's liberty interest. The instant proceedings are civil and assumed to be nonpunitive, and the Government proffers no sufficiently strong justification for indefinite civil detention under this statute. The first justification -- preventing flight -- is weak or nonexistent where removal seems a remote possibility. Preventive detention based on the second justification -- protecting the community -- has been upheld only when limited to specially dangerous individuals and subject to strong procedural protections. When preventive detention is potentially indefinite, this dangerousness rationale must also be accompanied by some other special circumstance, such as mental illness, that helps to create the danger. The civil confinement here is potentially permanent, and once the flight risk justification evaporates, the only special circumstance is the alien's removable status, which bears no relation to dangerousness. Moreover, the sole procedural protections here are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous, without (according to the Government) significant later judicial review. The Constitution may well preclude granting an administrative body unreviewable authority to make determinations implicating fundamental rights. Pp. 8-12.”).