Constitutional Avoidance in the Executive Branch

Abstract

When executive actors interpret statutes, the prevailing assumption is that they can and should use the tools that courts use. Is that assumption sound? This Article takes up the question by considering a rule frequently invoked by the courts - the canon of constitutional avoidance. Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years - including the initial torture memorandum issued by the Justice Department's Office of Legal Counsel, the President's signing statement regarding the McCain Amendment's ban on the mistreatment of detainees, and the Justice Department's defense of the National Security Agency's warrantless wiretapping program - feature prominent reliance on the avoidance canon. Typically, such reliance is supported by citation to one or more Supreme Court cases. Yet those citations are rarely accompanied by any discussion of the values courts try to serve when they employ avoidance. Are those values specific to the federal judiciary - for example, facilitating judicial deference to legislative majorities - or do they reflect substantive commitments extending beyond the courts? Equally lacking is any sustained consideration of interpretive context: Does their particular institutional location and function enable executive actors to call upon sources of statutory meaning that are unavailable to courts, rendering rough tools like the avoidance canon unnecessary? This Article explores executive use of the avoidance canon along both these dimensions. As to theoretical justification, I show that whether constitutional avoidance is appropriate in the executive branch turns on whether one accepts the conventional account of the canon, which sees it as serving values specific to the federal judiciary, or an alternative account, which views it as serving a set of broader norms not confined to the courts. As to interpretive context, I show that because executive officials often have better access to and knowledge of statutory purpose than do the courts, some facially ambiguous texts may in fact be entirely unambiguous to the executive interpreter. In those circumstances, the avoidance canon has no role to play.

Overall, although this Article focuses on executive uses of the avoidance canon in particular, the aim is to contribute to the development of a methodology for analyzing executive branch statutory interpretation in general.

Keywords: executive branch, statutory interpretation, constitutional avoidance, separation of powers, war on terror, signing statements