The executive’s use of the constitutional avoidance canon is disfavored where Congress has deliberately written a constitutionally vague statute. Morrison’s contention that the constitutional enforcement theory justifies the executive’s use of the avoidance canon is no longer valid when Congress has intentionally drafted a vague statute. Congress may draft a statute that is intentionally vague for a variety of reasons. For example, Congress may lack the political will to make a difficult constitutional decision and thus leave the language of a statute ambiguous to force the President to make the decision; alternatively, Congress may be unable to forge a consensus on a constitutional issue and thus to cobble together a coalition to pass a statute, its drafters may intentionally keep language ambiguous so that numerous parties find it amenable to their view. In these types of instances where Congress has intentionally drafted an ambiguous statute, the President’s use of the avoidance canon cannot be justified on constitutional enforcement theory grounds. Instead, the President must make the constitutional decision due to congressional inaction.

The constitutional enforcement rationale cannot justify the avoidance canon in cases of deliberate ambiguity. The constitutional enforcement rationale seeks to raise the cost of any congressional encroachment by forcing Congress to make its instructions clear.[1] Morrison is likely correct that this rationale is generally applicable to the executive as well.[2] However, where Congress was deliberately ambiguous, this rationale doesn’t apply. Clearly, Congress was reluctant in the first place to make a clear statement regarding a constitutional issue. The executive’s use of the avoidance canon will not change that. To the extent that the avoidance canon raises the cost of congressional encroachment, Congress will be less likely to do so, since the lower cost of congressional encroachment before the executive’s use of the canon was already too high. Thus, the executive’s use of the avoidance canon is not consistent with the constitutional enforcement rationale.

The executive’s unique institutional ability to discern ambiguity does not allow him to use the avoidance canon where Congress has intentionally drafted an ambiguous statute. The executive and administrative agencies “typically have a much more intimate, ongoing relationship with Congress and the legislative process” than courts.[3] As Morrison notes, sometimes they participate in the process itself.[4] Because of this institutional position, the executive may be able to clarify otherwise ambiguous statutory language to avoid applying the avoidance canon.[5] In instances of deliberate ambiguity, the legislative history and the executive’s experience with it will not provide clarity, because there is no clear congressional interpretation.

This ambiguity however should empower the executive to address the constitutional issue directly instead of applying the avoidance canon. Just as Strauss argues that the executive should defer less to Supreme Court precedent in areas of foreign affairs and national security, where the court is less institutionally capable, here the executive should similarly address the constitutional question because Congress was institutionally incapable of doing so.[6] Congress’ structural or political defect that prevented constitutional consensus is the same kind of institutional deficiency that courts have in national security cases. Instead of allowing Congress’ institutional deficiency to hobble constitutional decision-making indefinitely, the executive should view the institutional deficiency of one branch as an opportunity to exercise its own expertise, just as the executive does with courts and national security issues.

The executive’s constitutional interpretation in cases of deliberate ambiguity is not an improper act of self-dealing. Powell contends that when the President employs the avoidance canon, particularly on the grounds of separation of powers issues, he is restricting congressional power.[7] He finds this particularly problematic because the canon was initially used by the Supreme Court as a way to enforce the Constitution without specifically aggrandizing its own power.[8] However, in cases of deliberate ambiguity, the executive’s exercise of his interpretative authority is entirely appropriate, because the executive must act to fill the gap Congress has created. This situation could be compared to the non-delegation doctrine. An administrative agency’s actions are acceptable because Congress has provided some kind of intelligible principle in theory. In reality, the intelligible principle is generally not very developed and allows the executive great latitude. Similarly, Congress may have provided an intelligible principle here, but now gives the executive latitude to implement it and to interpret the constitution.

When Congress deliberately drafts an ambiguous statute, it dramatically alters the applicability of the avoidance canon. It undermines the constitutional enforcement rationale for the executive’s use of the avoidance canon. Moreover, the ambiguity actually empowers the executive, who remains the next institutionally capable actor for interpreting the statute. The executive’s active constitutional interpretation does not, as Powell contends, amount to an attempt to restrict congressional power, because Congress has passed a deliberately vague statute, the executive is forced to engage in this interpretation as opposed to taking this authority from Congress.

[1] Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1222 (2006).

[2] Id.

[3] Id. at 1242.

[4] Id.

[5] Id. at 1241.

[6] David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113, 129 (1993).

[7] H. Jefferson Powell, The Executive and the Avoidance Canon, 81 Ind. L.J. 1313, 1317 (2006)

[8] Id.