Executive Branch Avoidance and the Need for Congressional Notification
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.
