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What is 'Constitutional Avoidance' and How Might It Rescue Obamacare?

Justice Kennedy's obscure and surprising line of questioning could provide a way for health reform to survive
Supreme Court Justice Anthony Kennedy

Supreme Court Justice Anthony Kennedy

Photographer: Ken Cedeno

The Supreme Court sometimes surprises. In oral arguments today about the latest conservative attempt to undermine President Obama's health-reform program, Justice Anthony Kennedy introduced an unexpected potential basis for upholding the Affordable Care Act. Kennedy's reference to the obscure doctrine of "constitutional avoidance" could change the terms of debate in the most consequential economic case pending before the high court—one that will determine the fate of Obama's signature legislative accomplishment.

What the heck was Kennedy talking about?