abstract. When federal judges are called on to adjudicate separation-of-powers disputes, they are not mere arbiters of the separation of powers. By resolving a case (or declining to), federal courts are participants in the separation of powers. Stemming from this idea, this Article introduces the concept of separation-of-powers avoidance. Judges employ familiar techniques to avoid compelling high-level coordinate-branch officials to act.

Undertaking an original review of cases ranging from executive privilege to Congress’s subpoena power to congressional standing, this Article documents and models separation-of-powers avoidance. It explores how courts have dug a protective moat around the separation of powers through transdoctrinal principles that can, if taken beyond the courtroom, distort the interpretation of the separation of powers. From constitutional rights to statutory interpretation, scholarship has recognized that judicial expositions of legal principles are not necessarily coterminous with underlying law.

This Article extends that insight to the structural Constitution. It then theorizes this form of avoidance as a phenomenon reflecting uniquely judicial considerations. Finally, it offers normative prescriptions for the resolution of separation-of-powers conflict outside of federal courts. Separation-of-powers doctrine refracted through the lens of avoidance should not be taken outside of the courtroom. Bilateral negotiations between Congress and the President should not incorporate this form of doctrine, and both public and legal discourse should adjust to account for avoidance’s distortionary effects on the structural Constitution.

author. Associate Professor of Law, University of Virginia School of Law. For generous engagement at various stages, I am grateful to Tommy Bennett, Katherine Mims Crocker, Bridget Fahey, Tara Leigh Grove, John Harrison, Josh Levy, Gillian Metzger, Henry Monaghan, Trevor Morrison, Caleb Nelson, Jim Pfander, Annie Woolhandler, and Ernie Young. Thank you, Emily Hockett, for inspiration and research assistance. I am also grateful to the Yale Law Journal editors for strengthening this Article through their editing process.

Introduction

When federal courts are called on to adjudicate separation-of-powers disputes, they are not mere arbiters of the separation of powers. By resolving a case (or declining to), federal courts are participants in the separation of powers. To navigate this position, courts have engaged in a practice that this Article calls “separation-of-powers avoidance.” From discovery to standing, mandamus to statutory construction, courts deploy avoidance techniques to prevent or allay clashes with coordinate branches. Separation-of-powers avoidance is the judiciary’s use of avoidance techniques to avoid compelling a coordinate branch of government—or a high-level official within that branch—to take a specified action.1 Much like other forms of avoidance, separation-of-powers avoidance can distort doctrine in deep and far-reaching ways or create legal vacuums that other actors can fill.2 This Article documents separation-of-powers avoidance, theorizes it as a judicial phenomenon, and prescribes that judicial doctrine refracted through the lens of avoidance should not extend beyond the courtroom.

In the past several years, the judiciary has been called on to resolve many high-profile separation-of-powers clashes. In Trump v. Mazars USA, LLP, judicial power was invoked to answer whether Congress could obtain a sitting President’s tax records.3 In United States v. Bannon,4 Trump v. Thompson,5and Trump v. United States,6 judges were called on to determine a former President’s ability to invoke executive privilege when the sitting President had chosen not to invoke or had affirmatively waived claims of privilege. And in In re Graham, a federal court in Georgia was asked to determine the scope of the Speech or Debate Clause’s protection of a Senator’s refusal to testify before a state special-purpose grand jury.7 Although the facts in these particular cases are in some sense extraordinary, the judiciary’s involvement in salient separation-of-powers questions is far from it.8

But there is more to the story than this. From constitutional rights to statutory interpretation, scholars have recognized that judicial opinions concerning rights and law are not necessarily coterminous with underlying legal rights.9 The right-remedy gap alone has been the subject of intriguing scholarship that prompts deep questions about our judicial system’s core functions.10 Courts are, after all, constrained by doctrines and practices—both mandatory and prudential—that hinder their ability to afford complete relief or often even to articulate the full range of legal rights. Although this insight has prompted foundational debates in the constitutional-rights space, the field of separation of powers has not yet recognized its import for structural constitutional law. Too often, scholarship has focused on outcomes, for example, critiquing courts as overly executive-friendly and insufficiently solicitous of Congress’s role.11 Although that may be true, this Article focuses on a different issue: systemic distortion that arises when the judicial branch—a participant in the separation of powers—adjudicates disputes between and among the coordinate branches.

This Article introduces the concept of “separation-of-powers avoidance,” the judicial branch’s use of avoidance tools to keep from compelling a coordinate branch (or high-level official within that branch) to take a particular action. A familiar concept in legal interpretation, avoidance is commonly used in the context of the statutory canon of constitutional avoidance. But avoidance is a tactic whereby a legal interpreter prioritizes not resolving a particular issue. Although judges still resolve a case, they nonetheless do not resolve the targeted issue. This tactic often leads to systemic distortions and odd puzzles in the law.12 So, too, with separation-of-powers avoidance. Courts prioritize not compelling a coordinate branch to take a particular action. In so doing, judges systemically distort doctrine away from its constitutional content. But unlike more familiar types of avoidance, where judges seek to avoid resolution of a particular legal issue—thus affecting the court’s law-declaration role—with separation-of-powers avoidance, courts avoid taking an action vis-à-vis a particular party—thus affecting the court’s dispute-resolution role.13 Avoiding broad legal pronouncements, for example, does not lower the stakes if a court compels the President to turn over particular material.14

Federal courts have been called on to adjudicate many of the high-profile and politically salient disputes of our time. Congress has sought to invoke the judiciary’s jurisdiction to enforce congressional subpoenas.15 The President has sought to shield his personal documents from discovery by Congress.16 Congress has sought to defend its laws in courts when the Executive has refused.17 Although these cases are in some sense extraordinary, judicial involvement in marking the boundary line between legislative and executive power is far from unusual.18 Many, if not most, canonical separation-of-powers principles come from the courts.19

When federal judges opine on the separation of powers, they are not neutral arbiters of the separation of powers. As judges resolve cases and controversies that purport to draw the boundaries of our tripartite structure of governance, judges are active participants in the separation of powers. In some sense, this should be expected: the primary way that judges participate in the separation of powers is through dispute resolution. This feature of our judicial system—that courts inject themselves into the separation of powers when they decide a question of the separation of powers—is an awkward reality that courts navigate using a familiar tool (avoidance) in an unfamiliar context (the separation of powers).

Separation-of-powers avoidance is one mode of avoidance that courts use to cool separation-of-powers conflicts with a coordinate branch of government. Although courts do not generally disclaim jurisdiction to adjudicate disputes implicating separation-of-powers concerns,20 they interpret doctrines to avoid subjecting a coordinate branch to judicial coercion. Motivated in substantial measure by the unique concerns of dispute resolution involving coordinate branches, courts invoke separation-of-powers avoidance in ways that distort the constitutional content of the separation of powers when taken beyond the courtroom.

This Article proceeds in four parts. Part I situates separation-of-powers avoidance in the literature on judicial avoidance. Courts employ avoidance tactics across a broad range of substantive domains, the most well-known of which is the statutory canon of constitutional avoidance. Although separation-of-powers avoidance differs in significant respects from these previously identified forms of avoidance, avoidance literature sets the building blocks for an understanding of separation-of-powers avoidance’s effects.

Part II—the heart of the Article—sets out three models that separation-of-powers avoidance takes. In the “embedded model,” courts fuse separation-of-powers concerns into existing doctrine. In so doing, courts distort familiar doctrinal rules in the separation-of-powers context. This is particularly pervasive in the context of discovery of the President. In the “process model,” courts add an additional separation-of-powers inquiry to decision-making. Appellate courts will vacate a lower-court decision not because it is wrong but because it does not adequately attend to separation-of-powers concerns. Finally, in the “fortified model,” courts appeal to the idea of separation of powers to strengthen existing jurisdictional rules and thereby avoid embroiling themselves in a separation-of-powers conflict. The fortified model asks us to rethink familiar jurisdictional doctrines—namely, congressional standing—in the language of avoidance.

Part III theorizes separation-of-powers avoidance as a uniquely judicial phenomenon. Courts employ separation-of-powers avoidance to stay out of the fray. Cognizant of the limited capital they have to compel coordinate branches to comply with judicial orders, courts deploy that capital when circumstances warrant it, which usually includes an incursion on the judicial power that is distinct from the separation-of-powers conflict presented to the court.

Whether justifiable within courts or not, separation-of-powers avoidance creates a space between doctrine and the structural Constitution. When taken outside the courtroom, this space introduces distortions into the separation of powers. Building on Part II, Part IV expressly argues that the penumbra surrounding separation-of-powers avoidance distorts underlying doctrine. This allows the executive branch to rely on distorted case law with judicial imprimatur in negotiations with Congress and in the bully pulpit. Part IV thus argues that judicial decisions refracted through the lens of avoidance should not be taken outside of the courts where they have distortionary effects. First, bilateral negotiations between Congress and the President generally should not rely on doctrine refracted through judicial concerns. Second, both public and legal discourse should readjust to account for the space between doctrine and the Constitution where doctrine is refracted through an avoidance lens.

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At the outset, three clarifications about this Article are necessary. First, this Article’s discussion of “avoidance” is limited to a particular kind of avoidance. I use the term “separation-of-powers avoidance” to apply to the tactics that courts use to avoid a direct conflict with a coordinate branch of government in a dispute-resolution sense. Courts frequently issue opinions that express the constitutional bounds of separation of powers, but I refer here to the legal dispute that the court seeks to avoid. Courts use separation-of-powers avoidance to keep from compelling a coordinate branch (or high-level official within that branch) to take a particular action.21 When I use the term “avoidance,” I am referring to “separation-of-powers avoidance.” I use the long form “statutory canon of constitutional avoidance” to refer to the well-known canon of constitutional avoidance.

It is important to distinguish a broader use of the word “avoidance” in scholarship from the discussion at hand. Some refer to judicial uses of tools that contain some measure of discretion in unprincipled, undisciplined, or directed ways as avoidance. For example, Henry Monaghan describes the Supreme Court’s use of agenda-control mechanisms, used to decide when to consider particular doctrinal issues versus putting them off to a later date, as a form of avoidance.22 This more capacious use of avoidance is even more prevalent in foreign-affairs or international-litigation contexts.23 Although these forms of avoidance share some similarities with separation-of-powers avoidance, I want to bracket them in order to keep the definition of separation-of-powers avoidance precise: it is a dispute-resolution tool used to avoid compelling a coordinate-branch official to act when a court is presented with a separation-of-powers conflict.24

Second, in keeping separation-of-powers avoidance’s meaning precise, there is a tension that should be openly acknowledged. Federal courts are and have been actively involved in resolving major separation-of-powers cases.25 In prior work, I have argued that federal courts have recently found it “appropriate to reach for (rather than avoid) the hefty separation-of-powers questions.”26 Even in so doing, however, federal courts generally avoid a particular kind of separation-of-powers clash: the use of judicial power to compel a coordinate branch to act. This might include ordering the President to turn over discovery materials in court or ordering a cabinet official to testify before Congress. Therein lies the friction. On the one hand, federal courts avoid compelling coordinate-branch officials to act. On the other, federal courts actively take on separation-of-powers cases. The tension between separation-of-powers cases and the parties in those cases is not the subject of this Article, but it has been addressed in part by my prior work and by others.27

Third, this Article assumes that doctrine has a role in judicial decision-making even where judges have discretion. Of course, those who see partisanship as playing a dominant or increasing role in judicial decision-making are likely to reject or be skeptical of this assumption. But by carving out the political explanation, this Article draws from historical and contemporary examples to show that there is a constraining and coherent principle on judicial branch actors.