ASHWANDER v. TENNESSEE VALLEY AUTHORITY 297 U.S. 288 (1936)

Ashwander was part of a protracted litigation over the constitutionality of the Tennessee Valley Authority (TVA), a government development corporation established by the new deal. (See constitutional history, 1933–1945; tennessee valley authority act.) TVA was organized to develop the economy of a river valley by improving navigation and flood control and especially by generating cheap electric power for homes, farms, and industry. In Ashwander preferred shareholders in an existing power company sued in federal court to enjoin the company and TVA from carrying out a contract under which TVA would purchase much of the company's property and equipment, and TVA would allocate areas for the sale of power. The plaintiffs attacked the whole TVA program as exceeding the scope of congressional power. The district court granted the injunction, but the court of appeals reversed, upholding the contract. The Supreme Court, 8–1, affirmed the court of appeals.

Chief Justice charles evans hughes, for the majority, concluded that Wilson Dam, where TVA was generating power, had been built in 1916 to provide power for national defense needs, including the operation of nitrate plants used in the making of munitions, and to improve navigation—both objectives concededly within the powers of Congress. If excess electricity were generated at the dam, Hughes said, Congress had the power to sell it, as it might sell any other property owned by the United States. Justice james c. mcreynolds, dissenting alone on the constitutional merits, pointed out the transparency of the majority's doctrinal clothing: TVA was in the power-generating business for its own sake, not as an adjunct to some military program long since abandoned.

Justice louis d. brandeis, dissenting in part, agreed with the majority's views on congressional power but argued that the plaintiffs' complaint should have been dismissed for want of standing. As preferred shareholders, they could show no injury to themselves from the contract. Brandeis went on, in Ashwander 's most famous passages, to discuss a series of "rules" under which the Supreme Court had "avoided passing upon a large part of all the constitutional questions pressed upon it for decision." Some of the "rules" flow from Article III of the Constitution, including the standing requirement Brandeis sought to effectuate in Ashwander itself. Others, however, express policies of preference for nonconstitutional grounds for decision, for formulating the narrowest possible constitutional grounds, for construing federal statutes to avoid constitutional questions, and the like.

Some modern commentators have read the Brandeis opinion in Ashwander to stand for a broad policy of judicial discretion to avoid deciding cases that might place the Court in awkward political positions. Brandeis himself, a stickler for principled application of the Court's jurisdictional requirements, surely had no such generalized discretion in mind. Nonetheless, some of his successors have found it convenient to cite his comments in Ashwander in support of far less principled avoidance techniques.

(See poe v. ullman.)

Kenneth L. Karst
(1986)