Constitutional Avoidance and Presidential Power, by Aneil Kovvali

by Guest Blogger — Monday, June 26, 2017

Editor’s Note: Aneil Kovvali recently published a longer essay on this subject in the Yale Journal on Regulation Bulletin. You can access it here.

Recent events have brought renewed attention to statutes designed to constrain the president.  Troublingly, such statutes are often given limited constructions that weaken their force.  Under the constitutional avoidance canon, statutes are construed to avoid constitutional issues.  Applying the avoidance canon, various actors have weakened the statutes to prevent them from approaching the president’s (sometimes merely arguable) constitutional prerogatives.

But the constitutional avoidance canon is problematic in this context because of the president’s involvement in the legislative process.  The avoidance canon normally resists intrusion on the relevant constitutional value — to achieve an outcome that creates constitutional issues, the legislature must reach an unusual degree of consensus and enact a statute that clearly insists upon the outcome.  But the president’s power to veto legislation already fulfills this function, allowing the president to resist intrusion on his constitutional prerogatives unless Congress is especially unified and determined.

To illustrate, imagine that the extent of the president’s unaccountable power is mapped on a single line.  The point “P” refers to the president’s preferred level of power.  The closer to “P,” the more satisfied the president will be; the farther away, the less satisfied he will be.  Similarly, “C” refers to the Congress’s preferred level of presidential power.  If the president does not like legislation, he can attempt a veto.  However, a congressional supermajority can override a veto.  On the image, “Cv” captures the preferences of the member of Congress whose vote will decide whether a presidential veto would be sustained or overridden.   Suppose that Congress passes a statute designed to change the situation from the status quo (“S”) to Congress’s preferred outcome (“C”):

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The statute would be vulnerable to a veto.  If the president vetoed the bill, the member of Congress whose vote will decide whether the veto is sustained will support the president — “S” is closer to “Cv” than “C” is, so the member would prefer the status quo to the bill.

Acting strategically, Congress might adopt a less aggressive measure, designed to bring about an intended outcome (“I”):

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If the President attempted to veto this legislation, his veto would be overridden: “I” is closer to “Cv” than “S,” so the member of Congress whose vote will decide whether the presidential veto is sustained would prefer that the legislation survive.

This model demonstrates that the veto serves functions normally filled by the constitutional avoidance canon.  It resists intrusions on the relevant constitutional value, forcing Congress to back away from its preferred outcome “C” to a more moderate outcome “I,” and it demands an unusual degree of agreement within Congress before an intrusive measure can be adopted.  Applying the avoidance canon here and pushing the outcome from “I” toward “P” would amount to double-counting.

Other unique aspects of presidential power make the avoidance canon particularly troublesome.  For example, under Youngstown Sheet & Tube Co. v. Sawyer, the first step in adjudicating a conflict between Congress and the president is to categorize it.  If the president is understood as acting in compliance with a statute, he is on one footing; if he is understood to be violating the statute, he is on another.  The avoidance canon has the potential to muddle these categories, creating further confusion about the scope of presidential power.

The constitutional avoidance canon creates special problems when it is used to defend presidential prerogatives.  In that context, the canon’s role is already filled by the veto, and it interacts dangerously with the powers of the presidency.  As statutes constraining the president are placed under stress, courts should hesitate to weaken them by deploying the canon of constitutional avoidance.

Aneil Kovvali is an Associate at Wachtell, Lipton, Rosen & Katz. The views expressed in this post are his own, and do not necessarily reflect the views of the firm or its clients.

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