Constitutional Avoidance and Presidential Power

35 Yale J. on Reg. Bull. 10 (2017)

7 Pages Posted: 10 Mar 2017 Last revised: 31 Dec 2018

See all articles by Aneil Kovvali

Aneil Kovvali

Wachtell, Lipton, Rosen & Katz

Date Written: March 9, 2017

Abstract

Recent developments have brought renewed attention to statutes designed to constrain and discipline the President. The federal anti-nepotism statute, the federal conflict of interest statute, the Federal Advisory Committee Act, and the Freedom of Information Act all appear set to endure unusual stress in the coming years. Troublingly, these statutes have already been given limited constructions that weaken their power to restrain the President. Under the constitutional avoidance canon, courts construe statutes so as to avoid constitutional questions. Citing the avoidance canon and the President’s actual (or merely arguable) constitutional prerogatives, courts have limited the scope of statutes meant to discipline the presidency. Constitutional avoidance is a time-honored principle, but its application in this context is uniquely troubling. The President is an active participant in the legislative process, and can use his veto power to protect his prerogatives for himself. As a result, this type of judicial involvement can distort results in a way that is difficult, if not impossible, for Congress to reverse. The President’s unique powers also make the application of constitutional avoidance particularly problematic in this context.

Keywords: Constitutional Avoidance, Presidential Power, Statutory Interpretation, Separation of Powers

JEL Classification: K23, K40, K42

Suggested Citation

Kovvali, Aneil, Constitutional Avoidance and Presidential Power (March 9, 2017). 35 Yale J. on Reg. Bull. 10 (2017). Available at SSRN: https://ssrn.com/abstract=2930774

Aneil Kovvali (Contact Author)

Wachtell, Lipton, Rosen & Katz ( email )

51 West 52nd Street
New York, NY 10019
United States

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