Constitutional Avoidance in the Executive Branch

106 Columbia Law Review (2006) When executive branch actors interpret statutes, should they use the same methods as the courts? This Article takes up the question by considering a rule frequently invoked by the courts-the canon of constitutional avoidance. In addition to being a cardinal principle of judicial statutory interpretation, the avoidance canon also appears regularly and prominently in the work of the executive branch. It has played a central role, for example, in some of the most hotly debated episodes of executive branch statutory interpretation in the "war on terror." Typically, executive invocations of avoidance are 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, 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, Professor Morrison shows 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, Professor Morrison shows 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.