The Presidential Avoidance Canon

66 Pages Posted: 30 Apr 2024

Date Written: April 25, 2024

Abstract

This Article identifies an overlooked yet potent canon of statutory construction: the presidential avoidance canon. Under this rule, courts will not interpret a generally applicable statute to apply to the President, his close advisers, or the Executive Office of the President (EOP), absent a clear statement. Even where a statute explicitly applies to the EOP, courts may narrowly construe the law to exempt those EOP components whose sole function is to advise and assist the President.

Applying this rule, courts have narrowly construed the Administrative Procedure Act, the Freedom of Information Act, the Privacy Act, the Federal Records Act, the Presidential Records Act, the Civil Rights Act of 1964, anti-nepotism laws, and inspector general reporting requirements. Unlike other canons of construction, which subtly influence interpretation, this canon has driven courts to conclusions starkly at odds with the plain texts of these statutes.

Despite its significant impact, the presidential avoidance canon has received little scholarly attention. This Article fills the gap in the literature by tracing the history, logic, and potential applications of this canon of construction. It identifies the development of this canon in Supreme Court precedents from the Jefferson, Johnson, and Nixon administrations. It documents how courts and the Department of Justice have applied the doctrine to landmark legislation. It then extrapolates the logic of this canon to new contexts, including the Federal Tort Claims Act, the Whistleblower Protection Act, the Inspector General Act, the Computer Fraud and Abuse Act, and the Hatch Act. It concludes by discussing the canon’s scope, justification, and utility.

Suggested Citation

Velchik, Michael, The Presidential Avoidance Canon (April 25, 2024). Nebraska Law Review, Vol. 102, No. 1, 2023, Available at SSRN: https://ssrn.com/abstract=4807973

Michael Velchik (Contact Author)

Harvard University ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

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