This week I will be looking into what constitutional avoidance is and how it relates to the executive branch. The avoidance doctrine, also referred to as constitutional avoidance or avoidance canon, and is used in Constitutional Law. The canon dictates that federal courts should not rule on constitutional issues if the case can be answered in a non-constitutional way. This doctrine comes out of judicial self-restraint and is brought up in discussions about judicial power. However judges do not simply dismiss the case, first they must have a preliminary discussion on the whether or not their is a constitutional question at all in the case.
The Avoidance Canon has also been used as by the courts as self-protections like in INS v. St. Cyr for example. In this case Congress attempted to strip the courts of certain powers and jurisdictions and to remedy the issue the Supreme Court enacted the avoidance canon.
One of the articles that I looked at was from the Columbia Law Review, which I will link below, and it questioned if the executive branch should practice the same methods of avoidance of which the courts use. Morrison listed several instances in our recent history where the constitutional avoidance doctrine was used by the executive. Here are some of the examples, most of which you have probably heard of, “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.” However, the question isn’t how it has been used, but if the executive branch should have the power at all.
It is understandable for the courts to have this power but does it also include other branches of government? Or is the executive overstepping its power? I think that this is an interesting topic to further investigate because it covers a lot of issues that are important to the entire nation. When the wiretapping controversy first came out, there was a lot of coverage on the developments. The public was very attentive to the information being relayed and people are still very concerned about how it was being handled by the government. Now should issues like this be subject to constitutional avoidance? I am not sure, but I do think that it is a serious conversation to be had.
Ultimately Morrison concluded that several factors go into deciding whether or not the avoidance doctrine justly resides within the executive. For one, many people do not believe that it is in the courts jurisdiction to practice the canon. Therefor, it has no place in the executive. Among the people who agree with the jurisdiction, there is room for interpretation.
Constitutional Avoidance in the Executive Branch by Trevor W. Morrison http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1045&context=lsrp_papers
Another article that I looked at was Constitutional Avoidance, Step Zero by Anthony Vitarelli from the Yale Law Journal