An article from the symposium issue of the Indiana Law Journal on "War, Terrorism and Torture: Limits on Presidential Power in the 21st Century." The symposium was convened by the American Constitution Society for Law and Policy and the Indiana University School of Law–Bloomington on October 7, 2005.

“H. Jefferson Powell’s intriguing essay . . . advocates a substantial change in executive branch statutory interpretation that could prove enormously consequential. Powell argues that the executive branch should stop its widespread, bipartisan practice of employing an interpretive canon that courts use to resolve constitutional controversies involving statutory ambiguities: the avoidance canon, which is the longstanding rule of construction by which the Court reads statutes, whenever possible, to avoid significant constitutional difficulties . . . . As Powell explains, courts employ the avoidance canon to uphold statutes and thereby protect congressional decision making and avoid the displacement of legislative choices by judicial decision. But in the hands of the executive, the avoidance canon “loads the dice” in favor of the President by favoring statutory interpretations that maximize presidential discretion at the expense of congressional constraints on presidential power . . . . Powell’s proposal . . . . would protect against executive branch abuses of the avoidance canon that effectively nullify congressional constraints on overreaching Presidents. His proposal, though, would entail a radical change.” –From Forword by Prof. Dawn Johnsen