Here’s a post likely only of interest to hard-core Legislation geeks.
Over the weekend, the NY Times issued a report which begins: The Justice Department has concluded that the Obama administration can lawfully pay the community group Acorn for services provided under contracts signed before Congress banned the government from providing money to the group.” The article links to this five-page opinion on the question written by David Barron of the Office of Legal Counsel.
This paragraph in the Times story caught my eye: “Moreover, [Barron] argued, requiring the government to cancel contracts with a specifically named entity — “including even in cases where performance has already been completed but payment has not been rendered” — would raise constitutional concerns best avoided by interpreting the law differently.”
Here is the constitutional avoidance paragraph in the opinion letter itself:

Reading section 163 to prohibit payments to ACORN or its affiliates, subsidiaries, or allied organizations to satisfy a binding contractual obligation undertaken before enactment of section 163 would “undo a binding governmental contractual promise.” Cherokee Nation, 543 U.S. at 646. In accord with Cherokee Nation, the better reading of the section is therefore that it does not prohibit such payments. This reading of “provided to” is especially appropriate here because, consistent with the canon of constitutional avoidance, see, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 483 U.S. 568, 575 (1988), it not only avoids abrogating binding governmental contractual promises but also avoids the particular constitutional concerns that may be presented by reading the statute, which applies to specific named entities, to abrogate such contracts, including even in cases where performance has already been completed but payment has not been rendered.

Barron probably reached the right result here, but I was struck by the reliance on the doctrine of constitutional avoidance (and not only because I’ve been doing some writing on the subject). Trevor Morrison, in his very important Columbia Law Review article, “Constitutional Avoidance and the Executive Branch,” uses the Bush Administration’s OLC opinions to make the case against the executive branch relying upon the doctrine of constitutional avoidance.
I’d love to know what Trevor thinks about this Obama Administration use of the avoidance doctrine, but I can’t ask him. He’s an associate White House counsel (though working on national security affairs).
I wonder if there are other Obama Administration uses of the avoidance doctrine.
UPDATE: To be clear (following a reader comment), the issue is not whether the executive branch makes avoidance arguments in briefs to the Supreme Court. It is whether the executive branch makes avoidance arguments in defense of its own actions. As Morrison explains in his abstract: “Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years – including 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 – feature prominent reliance on the avoidance canon. Typically, such reliance is supported by citation to one or more Supreme Court cases. Yet those citations are rarely accompanied by any discussion of the values courts try to serve when they employ avoidance. Are those values specific to the federal judiciary – for example, facilitating judicial deference to legislative majorities – or do they reflect substantive commitments extending beyond the courts? Equally lacking is any sustained consideration of interpretive context: Does their particular institutional location and function enable executive actors to call upon sources of statutory meaning that are unavailable to courts, rendering rough tools like the avoidance canon unnecessary?”