More from Josh Blackman on the Presidential Avoidance Canon
Michael Ramsey
At Volokh Conspriacy, Josh Blackman: The Clear Statement Rule and the Major Question Doctrine As Substantive Separation of Powers Canons (expanding on his initial post here and my comment here). From the introduction:
Both the clear statement rule, and the major question doctrine, are substantive canons to avoid potential violations of the separation of powers. Justice Gorsuch explained in West Virginia v. EPA that the major question doctrine is best viewed as an avoidance canon in service of the non-delegation doctrine. That is, the Court will require a clear statement that Congress intended to empower an agency to resolve a "major question" in order to avoid deciding if such a broad delegation would even be constitutional. Likewise, with the Presidential Avoidance Canon, as I described it during the Trump years, the Court will require a clear statement that Congress intended to limit the President's power in order to avoid deciding if such a limitation on the President's power would violate Article II.
The clear statement rule and the major question doctrine both function as substantive separation of powers canons in order to avoid deciding if federal actions are unconstitutional.
I think this is probably correct as an assessment of how Justice Gorsuch, and perhaps other members of the Court, see the matter. But it still leaves the question of whether the constitutional avoidance canon is consistent with originalism (about which I have some doubt). Scalia & Garner endorse what they call the "constitutional doubt canon" (pp. 247-255 of Reading Law) but do not offer much of an originalist defense.