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Photo: S.E. MosesIn Constitutional Avoidance in the Executive Branch, I argue that deciding whether executive branch actors should employ any given judicially-developed rule of statutory construction requires considering both the theory underlying the rule and the context in which it will be deployed. I apply those considerations to the executive’s use of the canon of constitutional avoidance, which provides that where an otherwise acceptable construction of a statute would raise serious constitutional problems, the statute should be construed to avoid such problems unless such a construction is plainly contrary to the intent of Congress. I identify two different theoretical accounts of the avoidance canon in the article, and here I want to focus on an important implication of one of those accounts.

The more conventional account of avoidance, which I call the judicial restraint theory, sees avoidance as addressing issues specific to the federal courts—the impermissibility of advisory opinions and, more generally, the need to minimize judicial countermajoritarianism. On that theory, the avoidance canon is a uniquely judicial doctrine and is ill-suited to the executive branch. But an alternative account of the canon, which I call the constitutional enforcement theory, is not so limited. This theory sees avoidance as a statutory means of guarding constitutional boundaries. That is, the avoidance canon tells Congress that in order to legislate to the limits of its constitutional authority or in a manner that otherwise raises serious constitutional concerns, it must be clear about its intent to do so. As Professor William Eskridge has explained, avoidance thus “makes it harder for Congress to enact constitutionally questionable statutes and forces legislators to reflect and deliberate before plunging into constitutionally sensitive issues.” Avoidance on this account is really a form of constitutional enforcement, and the President (as head of the executive branch) has an independent duty to protect and preserve the Constitution and to see to its faithful execution. So if one accepts the constitutional enforcement theory, the avoidance canon may have a place in the executive branch.

But the constitutional enforcement theory also comes with an important condition: notice to Congress. As just discussed, that theory sees avoidance as a means of resisting legislative incursions on constitutional values by requiring Congress to speak clearly before its enactments will be read to implicate those values. Implicit in—indeed, central to—this view is the presumption that Congress knows (or could know, upon investigation) when a law has been narrowed by way of avoidance, so that it can contemplate enacting new legislation that more clearly expresses the avoidance-foreclosed meaning. Such notice invariably accompanies the judicial use of avoidance, since courts announce their interpretations in published opinions. Thus, members of Congress are able to know whenever a court has used avoidance to narrow a statute.

Executive branch statutory interpretation, in contrast, is not always so visible. Part of this variation is a matter of formality: Some executive interpretations are memorialized in formal documents like Office of Legal Counsel (OLC) opinions, but others might not be reduced to a single, identifiable writing. Yet even among the more formalized interpretations, the executive branch does not always publicize its work. Consider, for example, OLC’s 2002 memorandum (known as the Bybee Memorandum) addressing the applicability of the federal anti-torture statute to the detention and treatment of alleged enemy combatants. Among other things, the statute makes it a federal crime for any person outside the United States to commit torture. The Bybee Memorandum, however, claimed that the statute would raise constitutional concerns if it were construed to apply to detention, interrogation, or other treatment ordered by the President pursuant to his authority as Commander-in-Chief. Accordingly, the Memorandum invoked the avoidance canon and construed the statute not to apply to such presidentially-ordered actions.

There are a number of problems with the Bybee Memorandum’s analysis, including its use of the avoidance canon. I want to focus here on the notice problem. OLC issued the Bybee Memorandum in 2002, but only to a relatively small circle within the executive branch. It did not become known to the public until it was leaked to the press almost two years later. Until the leak, members of Congress were presumably unaware that this extremely significant executive branch opinion had relied on the avoidance canon to render the anti-torture statute effectively inapplicable in the war on terror. Such secret uses of avoidance are at odds with the operating premises of the constitutional enforcement theory. If Congress does not know that the executive branch has used avoidance to construe a statute narrowly, the canon cannot be defended as a means of protecting constitutional norms by effectively remanding Congress to the legislative process. Congress, after all, would not even know of the remand.

In addition to giving Congress an opportunity to respond when its statutes are narrowed via avoidance, a notification requirement might also help improve the substance of the executive branch’s use of the avoidance canon. As I show in the full article, one recurring problem with executive branch avoidance is the risk of abuse—specifically, invocation of avoidance in the absence of the genuine statutory ambiguity needed to trigger it and/or in order to avoid a purported constitutional concern that is based on an implausible view of the Constitution itself. This sort of abuse may be especially tempting in contexts where the statute regulates and restricts executive action, and where avoidance could help loosen those restrictions and thus leave the executive with more unfettered power. In circumstances where a court is unlikely to be called upon to review the executive’s interpretation, publicity may be the best way to police such abuses. Executive officials may be reluctant to push the avoidance canon beyond where it can plausibly go if they know that their work will be subject to meaningful congressional oversight and public scrutiny. (Indeed, the Bybee Memorandum was publicly withdrawn shortly after it was leaked to the public and was later replaced by a less extreme, if still troubling, document.)

To be sure, there may be legitimate national security or other compelling reasons not to publicly disclose the full contents of a document like the Bybee Memorandum, at least when it is first produced. But if the executive branch chooses to employ the avoidance canon when it interprets a statute, it assumes a responsibility to inform Congress. Surely it is possible to discharge that responsibility without compromising national security. In the case of the Bybee Memorandum, the Administration could have told Congress (perhaps even in closed session) that it had decided to construe the torture statute narrowly on grounds of avoidance, even if it would not have been appropriate to disclose the full contents of the Bybee Memorandum itself.

There is, of course, real reason to doubt that the executive branch (under this or any administration) would voluntarily assume the notification obligation I have described. If we are serious about congressional notification in this context—and, as I have argued, we should be if we are inclined to accept the constitutional enforcement theory of avoidance—it should be required by law. One way to do that would be to amend 28 U.S.C. § 530D, which currently requires, among other things, that the Attorney General notify Congress whenever the Department of Justice decides not to enforce a federal statute on grounds of unconstitutionality. The statute could be amended to read in part as follows (new language in italics):

(a) Report. —

(1) In general. — The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice—

(A) establishes or implements a formal or informal policy to refrain —

(i) from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy . . . on the grounds that such provision is unconstitutional;
. . . .
(B) in connection with the implementation of a formal or informal policy or other course of action, determines to interpret a federal statute in conformity with a construction adopted in order to avoid a serious constitutional concern;
. . . .

Admittedly, an administration inclined against providing voluntary notice to Congress may find little to support in a statutory amendment like this. Thus, the amendment could face a presidential veto. Alternatively, the President might agree to sign the bill into law but limit it with a signing statement. Indeed, upon signing the current version of the section 530D, President Bush issued a statement declaring that the executive branch would construe the statute “in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.” By this statement, the President appears to have invoked something like the avoidance canon to suggest that he would construe the statute not to require congressional notification of statutory nonenforcement in circumstances where it would interfere with his understanding of his constitutional prerogatives. It is not difficult to imagine, then, that the President might respond in kind to the amendment I have proposed. That is, he might well invoke the avoidance canon to construe away a statutory requirement that the executive branch inform Congress whenever it does just that.

Of course, Congress is not without weapons of its own (hearings, subpoenas, even threats of de-funding) with which to combat such executive intransigence. Whether, and when, Congress should deploy those weapons is a question for another day. For now, it suffices to say that timely and appropriate notice to Congress is a critical predicate of the constitutional enforcement theory of avoidance, and thus that the executive’s use of avoidance should include such notice. Congress can and should pass legislation insisting on it. At worst, sending such legislation to the President for his signature may require the executive branch to say publicly whether it recognizes the notification obligation that comes with the avoidance canon.

* Associate Professor of Law, Cornell Law School.