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The Practice of Executive Constitutionalism

The executive branch must inevitably interpret the Constitution. Although departmentalists and judicial supremacists disagree about the scope of the executive’s constitutional authority, few believe the Constitution is only for the courts. But what are the practices through which the executive branch interprets the Constitution and translates those interpretations into concrete decisions? What are their histories? And what, if anything, is distinctive about them? While a rich and growing literature has examined some aspects of these questions, scholars have not broadly canvassed the most central tools by which the executive branch shapes and implements constitutional law or considered what makes them unique.

This Article pursues that project. Descriptively, the Article provides a thick account of executive branch constitutional interpretation, particularly in its centralized form controlled by the president and the Department of Justice. We describe and assess executive tools and methods for interpreting the Constitution and transmitting those interpretations to different audiences. Some of these tools are well known and have obvious judicial analogs. But this Article shows how the history and contours of these practices have not been fully understood. It also excavates some unfamiliar tools that have gone unnoticed and unexplained.

Our descriptive account provides a foundation for assessing executive constitutionalism. Comparing executive and judicial practices can help justify some existing arrangements while suggesting reforms for others. More broadly, a rich understanding of how executive branch constitutional interpretation has worked is critical for assessing the virtues and vices of executive constitutionalism writ large—especially in the second Trump Administration, in which expansive claims of constitutional authority loom large.

Introduction

The executive branch must inevitably engage in constitutional interpretation. Although departmentalists and judicial supremacists disagree over the Article II executive’s constitutional authority relative to that of the Article III judiciary,1 1.Compare, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev 1359 (1997) (defending judicial supremacy in constitutional interpretation), with Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) (arguing that the executive branch and the judiciary possess equal authority to interpret the Constitution). See also Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution . . . .”).Show More few would contest the basic premise that constitutional law is not only for the courts. The executive branch has asserted its own “independent constitutional obligation to interpret and apply the Constitution,”2 2.The Const. Separation of Powers Between the President & Cong., 20 Op. O.L.C. 124, 128 (1996) [hereinafter Constitutional Separation of Powers].Show More which the Supreme Court has acknowledged,3 3.Boumediene v. Bush, 553 U.S. 723, 798 (2008) (observing that “[t]he political branches” have “independent obligations to interpret and uphold the Constitution”); see also, e.g., United States v. Nixon, 418 U.S. 683, 703 (1974) (“In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.”).Show More and against which Congress has legislated.4 4.See, e.g., 28 U.S.C. § 530D (requiring a report from the attorney general to Congress whenever the attorney general or another officer of the Justice Department refrains from enforcing or defending a statutory provision “on the grounds that such provision is unconstitutional”).Show More This obligation comes from our national charter itself, as the president and all of the officers of the executive branch must profess their loyalty to the Constitution.5 5.The president must take an “Oath or Affirmation” that they “will to the best of [their] Ability, preserve, protect and defend the Constitution of the United States.” U.S. Const. art. II, § 1, cl. 8. All other executive officers “shall be bound by Oath or Affirmation, to support [the] Constitution.” Id. art. VI, cl. 3.Show More And this obligation matters in the everyday practice of the executive branch, which routinely must resolve questions about the scope of its constitutional powers and duties—often in situations where no judicial guidance is available, and even in many situations where it is.6 6.See Dawn E. Johnsen, What’s a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 B.U. L. Rev. 395, 408 (2008) (noting that the executive must often confront questions of constitutional interpretation, sometimes “without the benefit of clear judicial guidance”); Gillian E. Metzger, Administrative Constitutionalism, 91 Tex. L. Rev. 1897, 1898 (2013) (“[I]nstances of administrative constitutionalism are a frequent occurrence, reflecting the reality that most governing occurs at the administrative level and thus that is where constitutional issues often arise.” (footnote omitted)); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113, 113 (1993) (“Every day, officers or employees in the executive branch must interpret the Constitution.”).Show More

There is thus, both in theory and reality, a robust practice of “executive constitutionalism.”7 7.This phrase seems to first appear in Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 Mich. L. Rev. 676, 679 (2005). It has been used by several other scholars since then. See, e.g., David L. Franklin, Popular Constitutionalism as Presidential Constitutionalism?, 81 Chi.-Kent L. Rev. 1069, 1080 (2006); Trevor W. Morrison, Constitutional Alarmism, 124 Harv. L. Rev. 1688, 1692 (2011) (reviewing Bruce Ackerman, The Decline and Fall of the American Republic (2010)); Zachary S. Price, Reliance on Executive Constitutional Interpretation, 100 B.U. L. Rev. 197, 203 (2020). A similar (though slightly more unwieldy) formulation is “executive branch constitutionalism.” See, e.g., Neal Kumar Katyal, Judges as Advicegivers, 50 Stan. L. Rev. 1709, 1808 (1998).Show More But how, exactly, does executive constitutionalism work? More concretely, what are the tools, methods, and practices that actors within the executive branch use to interpret the Constitution and translate those interpretations into practical decisions? And what are the ways in which this form of constitutional practice systematically differs from the constitutionalism practiced by the judicial branch?

Twenty years ago, now-Judge Cornelia Pillard lamented that “[c]onstitutionalism within the executive branch has been particularly ignored.”8 8.Pillard, supra note 7, at 676.Show More Pillard sought to correct this oversight but focused her inquiry on “questions of individual rights that evade judicial review.”9 9.Id. at 677.Show More Since then, the literature on constitutionalism within the executive branch has grown. Scholars have deepened our understanding of the president’s legal decision-making.10 10.See generally, e.g., Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11 (2012) (discussing the ways in which the Bush and Obama Administrations made legal decisions and navigated constitutional checks on counterterrorism efforts); Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2010) (describing “political constraints” on the executive’s legal decision-making authority); Metzger, supra note 6 (assessing methods by which administrative agencies interact with and interpret the Constitution); Curtis A. Bradley & Trevor W. Morrison, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097 (2013) (examining the practice-based nature of presidential authority and the ways in which legal dialogue constrains executive legal decision-making); Daphna Renan, The Law Presidents Make, 103 Va. L. Rev. 805 (2017) (describing the diffuse and informal structures through which the executive branch makes legal decisions); Peter M. Shane, Madison’s Nightmare: How Executive Power Threatens American Democracy (2009) (arguing that the expanse of executive power, and the corresponding collapse of congressional and judicial power, have allowed the president’s legal decisions to go dangerously unchecked).Show More They have documented how constitutionalism within the executive branch has played out historically11 11.See, e.g., Harold H. Bruff, Untrodden Ground: How Presidents Interpret the Constitution (2015).Show More and how actors in administrative agencies have made constitutional decisions.12 12.See, e.g., Sophia Z. Lee, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, 96 Va. L. Rev. 799 (2010); Karen M. Tani, Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor, 100 Cornell L. Rev. 825 (2015).Show More And they have provided rich insights into many individual tools in the executive’s toolkit, such as presidential signing statements,13 13.See, e.g., Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 Const. Comment. 307 (2006); Ronald A. Cass & Peter L. Strauss, The Presidential Signing Statements Controversy, 16 Wm. & Mary Bill Rts. J. 11 (2007); Louis Fisher, Signing Statements: Constitutional and Practical Limits, 16 Wm. & Mary Bill Rts. J. 183 (2007); Christopher S. Yoo, Presidential Signing Statements: A New Perspective, 164 U. Pa. L. Rev. 1801 (2016).Show More Department of Justice (“DOJ”) legal opinions,14 14.See, e.g., Douglas W. Kmiec, OLC’s Opinion Writing Function: The Legal Adhesive for a Unitary Executive, 15 Cardozo L. Rev. 337 (1993); Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448 (2010); Rita W. Nealon, The Opinion Function of the Federal Attorney General, 25 N.Y.U. L. Rev. 825 (1950); see also Peter E. Heiser, Jr., The Opinion Writing Function of Attorneys General, 18 Idaho L. Rev. 9 (1982) (surveying legal opinions of state attorneys general, which have a similar function to those written by DOJ).Show More and the constitutional “accommodation” process.15 15.See, e.g., Jonathan David Shaub, The Executive’s Privilege, 70 Duke L.J. 1, 31–32 (2020).Show More

But we still lack a broader descriptive account of the institutional practices by which the executive branch today identifies and implements its understanding of its constitutional powers and duties. Such an account matters. We live in an age of executive action,16 16.See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246 (2001) (“We live today in an era of presidential administration.”); see also, e.g., Ashraf Ahmed, Lev Menand & Noah A. Rosenblum, The Making of Presidential Administration, 137 Harv. L. Rev. 2131, 2133 (2024) (observing that “we live in an era of presidential primacy” and that “[c]ontrol of the White House is so central to our governance that the transition from one President to another amounts to ‘regime change’” (citation omitted)); Peter M. Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 Ark. L. Rev. 161, 162 (1995) (arguing that, under the views of the Reagan and Bush Administrations, “not only was ‘executive’ power deemed legally impregnable, but an extraordinary amount of policy making power was argued to be ‘executive’” (citation omitted)).Show More and constitutional considerations play a meaningful role in shaping and constraining that action. Major executive actions across all recent presidential administrations have presented important constitutional issues—often issues that the courts never assess.17 17.Consider, for example, major Trump Administration opinions on the scope of the Religion Clauses that remain in effect and binding on the executive branch and that have received little attention or treatment in the courts. See Religious Seasonal Decorations in Fed. Gov’t Bldgs., 45 Op. O.L.C. (Jan. 15, 2021) [hereinafter Religious Seasonal Decorations] (slip op.); Religious Restrictions on Cap. Fin. for Historically Black Colls. & Univs., 43 Op. O.L.C. 191 (2019). Or take major Obama Administration opinions on the scope of the take care authority and prosecutorial discretion that were challenged in court—but were never addressed by the Supreme Court before being countermanded by later executive action. See, e.g., Prioritizing & Deferring Removal of Certain Aliens Unlawfully Present in the U.S., 38 Op. O.L.C. 39 (2014) (subsequently withdrawn by Attorney General Barr); Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (failing to directly address the aforementioned Office of Legal Counsel opinion but ruling in opposition to that opinion’s reasoning), aff’d per curiam by an equally divided court, 579 U.S. 547 (2016) (splitting 4-4 and consequently leaving the U.S. Court of Appeals for the Fifth Circuit’s decision undisturbed).Show More A clear-eyed assessment of contemporary constitutional law therefore depends on understanding the processes that produce executive branch constitutional judgments.

Moreover, studying how executive constitutionalism has worked in the past provides important purchase for understanding current events. In his second Administration, President Trump and his subordinates have advanced startingly aggressive interpretations of the Constitution. (Consider, for example, Trump’s executive order interpreting the Fourteenth Amendment as not requiring birthright citizenship for children born in the United States to undocumented immigrant parents.18 18.See Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025); see also Trump v. CASA, Inc., 145 S. Ct. 2540, 2548–49 (2025) (partially staying lower court preliminary injunctions of the birthright citizenship executive order).Show More) And in doing so, the Administration appears to have sidestepped normal processes of internal DOJ review for legality.19 19.See Charlie Savage, Trump Sidelines Justice Dept. Legal Office, Eroding Another Check on His Power, N.Y. Times (Apr. 4, 2025), https://www.nytimes.com/2025/04/04/us/politics/tr‌ump-office-of-legal-counsel-doj.html (noting that the Office of Legal Counsel has “largely been sidelined” in the process of publishing executive orders by the Trump Administration).Show More Although a full assessment may only be possible in retrospect, the second Trump Administration, in “seeking to effectuate radical constitutional change,”20 20.Bob Bauer & Jack Goldsmith, The Trump Executive Orders as “Radical Constitutionalism,” Substack: Exec. Functions (Feb. 3, 2025), https://executivefunctions.subst‌ack.com/p/the-trump-executive-orders-as-radical [https://perma.cc/R55F-BXNC]; see also Russell Vought, Renewing American Purpose, Am. Mind (Sept. 29, 2022), https://americanmi‌nd.org/salvo/renewing-american-purpose/ [https://perma.cc/28CK-RHZ6] (arguing that the American Right should “become radical constitutionalists” and “throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years” (emphasis omitted)).Show More may ultimately be seen as establishing an entirely new model of executive constitutionalism, relying on procedures and methods that look little like past practice. But even if so, one needs to understand how executive constitutionalism has worked in the past to know how it might be changing today, how it might change in the future, and if those changes are desirable or troubling.

This Article’s first major goal, then, is descriptive. We aim to offer a broad account—legal, institutional, and to some degree sociological—of many of the most critical ways in which the executive branch does constitutional law in the present. While some of this account may be familiar, many of the ways in which the executive branch reaches constitutional interpretations and then translates those decisions into concrete action remain obscure.

A second major goal is to connect and compare the respective practices of the executive and judicial branches. It is well known that the executive branch often—and perhaps increasingly—acts in ways that resemble judicial practice.21 21.See infra Section III.A.Show More But the full extent of this familiar analogy has not been explored, and we embark on the project of exploring it. In so doing, we sidestep the existing debate about whether executive branch decision-making should become more “court-like” as a means of prioritizing legal independence22 22.For example, we take no view on proposals like Bruce Ackerman’s suggested “Supreme Executive Tribunal,” whose members would “think of themselves as judges for the executive branch, not lawyers for the sitting president.” Ackerman, supra note 7, at 143. For criticisms of this proposal, see, e.g., Morrison, supra note 7, at 1742–48; Renan, supra note 10, at 885–86. Whatever the merits of such reforms, they have limited relevance if one’s goal is to understand and learn from present arrangements.Show More—or less court-like, on the theory that there is something dangerous about adjudication in the executive branch.23 23.See, e.g., United States v. Arthrex, Inc., 141 S. Ct. 1970, 1993 (2021) (Gorsuch, J., concurring in part and dissenting in part) (“Any suggestion that the neutrality and independence the framers guaranteed for courts could be replicated within the Executive Branch was never more than wishful thinking.”).Show More Instead, we begin a broad comparative inquiry to understand better and assess the institutional contrasts and needs.

Some of the ways in which the executive branch is court-like are well known. Just as courts issue opinions justifying their constitutional judgments, the executive branch explains its constitutional interpretations in presidential signing statements, executive orders, and binding DOJ legal opinions.24 24.See, e.g., Ackerman, supra note 7, at 99 (noting that the Office of Legal Counsel “often generates a legal product that looks like a judicial opinion” but that “appearances are deceiving”).Show More DOJ’s Office of Legal Counsel (“OLC”) is frequently called a kind of internal executive branch court.25 25.See, e.g., Kmiec, supra note 14, at 347 (“OLC practice . . . is thus highly analogous to that of the judiciary.”); Pillard, supra note 7, at 737–38 (lamenting OLC’s “[c]ourt-like passivity”); Renan, supra note 10, at 815 (noting that OLC’s “decisional process resembles a court”).Show More And the specific interpretive techniques by which the executive branch addresses constitutional questions often track judicial methods.26 26.As Trevor Morrison has documented, for example, the executive branch, like the judiciary, regularly engages in constitutional avoidance when interpreting federal statutes. See generally Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189 (2006).Show More

But many less familiar executive branch practices that also have ready judicial analogs have gone unnoticed. One example is a form of severability, which (in the judicial context) refers to the analysis for determining whether the remainder of a statute survives when a portion is held unconstitutional.27 27.See William Baude, Severability First Principles, 109 Va. L. Rev. 1, 3–5 (2023).Show More The executive branch has long had its own version of this practice: dating back to President Jefferson, the executive branch has frequently announced a “treatment” of constitutionally questionable provisions within larger statutory regimes. “Treatment,” a long-standing term of art, indicates that the executive has a constitutional objection to the text of a provision but is nevertheless committed to give the provision’s policy its maximum possible constitutional effect.28 28.See infra Subsection II.A.3.Show More Other underexplored executive practices include a justiciability doctrine: the executive branch has more recently developed norms and procedures for reaching disputes that resemble judicial doctrines governing cases and controversies.29 29.See infra Subsection II.A.5.Show More

In some ways, however, the practice of executive constitutionalism is fundamentally dissimilar to judicial practice. For example, executive constitutionalism includes a practice akin to waiver: even when statutory law includes clear violations of Supreme Court precedent or deemed intrusions on core Article II prerogatives, the executive branch will frequently give effect to those provisions.30 30.See infra Subsection II.A.4.Show More As discussed more below, one simple example of this arises with statutory provisions that violate Immigration & Naturalization Service v. Chadha31 31.462 U.S. 919 (1983) (invalidating the one-house veto of executive action).Show More—but that the executive branch nevertheless complies with.32 32.See Louis Fisher, The Legislative Veto: Invalidated, It Survives, 56 Law & Contemp. Probs. 273, 288–91 (1993).Show More Indeed, some agency regulations actually require such committee approval.33 33.See, e.g., U.S. Dep’t of Def., DoD 7000.14-R, 3 Financial Management Regulation ch. 6, § 4.1 (2015) (describing required regulatory procedures for certain Department of Defense appropriations actions “to request the prior approval of the congressional defense committees”).Show More But we know of no context in which the judiciary views itself as able to accede to violations of structural constitutional provisions.

We hope these and other descriptive efforts will contribute to basic institutional knowledge across a broad and overlapping series of recent literatures, each with a slightly different nomenclature but a related focus—including recent literature on “administrative constitutionalism,”34 34.See Metzger, supra note 6; Sophia Z. Lee, Our Administered Constitution: Administrative Constitutionalism from the Founding to the Present, 167 U. Pa. L. Rev. 1699 (2019); Bertrall L. Ross II, Embracing Administrative Constitutionalism, 95 B.U. L. Rev. 519 (2015).Show More “presidential constitutionalism,”35 35.See William N. Eskridge, Jr., Presidential Constitutionalism and Marriage Equality, 167 U. Pa. L. Rev. 1891 (2019); Jedediah Purdy, Presidential Popular Constitutionalism, 77 Fordham L. Rev. 1837 (2009); Franklin, supra note 7; Scott M. Matheson, Jr., Presidential Constitutionalism in Perilous Times (2009).Show More “presidential administration,”36 36.See Kagan, supra note 16, at 2246 (arguing that President Clinton “enhanced presidential control over administration” by “exercising directive authority over [executive] agencies and asserting personal ownership of their regulatory activity”); Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265 (2019); Jerry L. Mashaw & David Berke, Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience, 35 Yale J. on Regul. 549 (2018). More recent work by Ashraf Ahmed, Lev Menand, and Noah Rosenblum has shown how such arrangements are anything but inevitable: in the second half of the last century, “the law was reshaped to make presidential dominance of the administrative state possible.” Ahmed, Menand & Rosenblum, supra note 16, at 2133; see also Noah A. Rosenblum, The Antifascist Roots of Presidential Administration, 122 Colum. L. Rev. 1, 6 (2022) (noting that presidential administration “has only become more pronounced” since Justice Kagan published Presidential Administration).Show More “executive branch legalism,”37 37.See Renan, supra note 10; David Fontana, Executive Branch Legalisms, 126 Harv. L. Rev. F. 21 (2012).Show More and the “internal separation of powers.”38 38.See Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch From Within, 115 Yale L.J. 2314 (2006); see also Jon D. Michaels, An Enduring, Evolving Separation of Powers, 115 Colum. L. Rev. 515 (2015) (describing the construction of a new conception of separation of powers involving the administrative state).Show More But our descriptive and comparative efforts also provide a platform from which we can normatively assess executive constitutionalism. Most centrally, understanding how the executive branch is, and is not, like the judiciary has practical implications for how the executive should interpret the Constitution. When should the executive branch invoke the “passive virtues”39 39.See Alexander M. Bickel, The Supreme Court, 1960 Term—Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961).Show More and refrain from deciding difficult constitutional questions? Sometimes, institutional or interbranch comity suggests deflecting or deferring a constitutional judgment—but the final resolution of some issues requires more active executive engagement than is commonly understood. Relatedly, the executive branch has, in some contexts, adopted court-like rules and approaches that are, in our view, poor fits for Article II—such as policies of justiciability that emphasize the desirability of a focused and concrete dispute.40 40.See infra Subsection II.A.5.Show More Abstract guidance can be central to the proper functioning of executive constitutionalism.

But why “constitutionalism”? That is, why focus on constitutional decision-making specifically, as opposed to executive legal decision-making more generally? To be sure, much of our analysis has implications for how the executive branch addresses nonconstitutional questions. But constitutional decision-making also presents unique issues worthy of closer study. Most obviously, constitutional law is supreme. Among other things, constitutional objections empower the executive branch to ignore otherwise binding laws, giving the executive a powerful tool to push back on Congress that is unavailable when ordinary legal interpretation is at issue.41 41.Indeed, on one theory the president has a duty to refuse to enforce unconstitutional laws. See Saikrishna Bangalore Prakash, The Executive’s Duty to Disregard Unconstitutional Laws, 96 Geo. L.J. 1613, 1616–17 (2008).Show More

Our account proceeds in three parts. Part I provides background for our descriptive contributions. We frame this Part around two questions: Who within the executive branch engages in constitutional interpretation? And when do constitutional issues arise for resolution? Here, we explain that our focus is largely on top-down and internal constitutionalism: constitutional determinations that are made by the president or DOJ and that are not produced in the shadow of imminent judicial resolution.

Part II offers the central descriptive contributions of the Article. We strive to offer a broad account of how executive constitutionalism works. We structure our account around two rough categories. First, we canvass the executive branch tools, practices, and methods for determining what the Constitution requires. What are the executive’s tools for determining constitutional meaning, and how does it determine when to compromise on its constitutional judgments? Second, we describe the channels of executive constitutionalism. Having made its own judgment about its constitutional powers and duties, how does the executive transmit those judgments to distinct audiences?

Part III then turns from the descriptive to the theoretical and normative. We assess how well executive constitutionalism works—and offer suggestions for how it might be improved. In some contexts, executive branch lawyers may have modeled practices on judicial analogs that are poor fits for Article II decision-making. We also observe how much of executive constitutional practice has not been with us for most of our nation’s history; instead, much of it was apparently invented by presidents and other executive branch actors within the last few decades. This observation suggests that different versions of executive constitutional practice—perhaps vastly different—are possible.

We conclude by reconsidering Judge Pillard’s challenge, mentioned above.42 42.Pillard, supra note 7, at 676–77.Show More Has executive constitutionalism failed to fulfill its promise? Our contribution, which is mostly institutional and procedural, is not intended to respond head-on to Pillard’s critique—which centers on the substance of executive constitutional judgments. Nevertheless, our account reveals a core virtue of executive constitutionalism: executive constitutional practice represents a real—and in important ways, successful—attempt to implement rule of law values.

  1.  Compare, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev 1359 (1997) (defending judicial supremacy in constitutional interpretation), with Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) (arguing that the executive branch and the judiciary possess equal authority to interpret the Constitution). See also Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution . . . .”). ↑
  2.  The Const. Separation of Powers Between the President & Cong., 20 Op. O.L.C. 124, 128 (1996) [hereinafter Constitutional Separation of Powers]. ↑
  3.  Boumediene v. Bush, 553 U.S. 723, 798 (2008) (observing that “[t]he political branches” have “independent obligations to interpret and uphold the Constitution”); see also, e.g., United States v. Nixon, 418 U.S. 683, 703 (1974) (“In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.”). ↑
  4.  See, e.g., 28 U.S.C. § 530D (requiring a report from the attorney general to Congress whenever the attorney general or another officer of the Justice Department refrains from enforcing or defending a statutory provision “on the grounds that such provision is unconstitutional”). ↑
  5.  The president must take an “Oath or Affirmation” that they “will to the best of [their] Ability, preserve, protect and defend the Constitution of the United States.” U.S. Const.

    art

    . II, § 1,

    cl. 8. All other executive officers “shall be bound by Oath or Affirmation, to support [the] Constitution.” Id.

    art

    . VI,

    cl. 3. ↑

  6.  See Dawn E. Johnsen, What’s a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 B.U. L. Rev. 395, 408 (2008) (noting that the executive must often confront questions of constitutional interpretation, sometimes “without the benefit of clear judicial guidance”); Gillian E. Metzger, Administrative Constitutionalism, 91 Tex. L. Rev. 1897, 1898 (2013) (“[I]nstances of administrative constitutionalism are a frequent occurrence, reflecting the reality that most governing occurs at the administrative level and thus that is where constitutional issues often arise.” (footnote omitted)); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113, 113 (1993) (“Every day, officers or employees in the executive branch must interpret the Constitution.”). ↑
  7.  This phrase seems to first appear in Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 Mich. L. Rev. 676, 679 (2005). It has been used by several other scholars since then. See, e.g., David L. Franklin, Popular Constitutionalism as Presidential Constitutionalism?, 81 Chi.-Kent L. Rev. 1069, 1080 (2006); Trevor W. Morrison, Constitutional Alarmism, 124 Harv. L. Rev. 1688, 1692 (2011) (reviewing Bruce Ackerman, The Decline and Fall of the American Republic (2010)); Zachary S. Price, Reliance on Executive Constitutional Interpretation, 100 B.U. L. Rev. 197, 203 (2020). A similar (though slightly more unwieldy) formulation is “executive branch constitutionalism.” See, e.g., Neal Kumar Katyal, Judges as Advicegivers, 50 Stan. L. Rev. 1709, 1808 (1998). ↑
  8.  Pillard, supra note 7, at 676. ↑
  9.  Id. at 677. ↑
  10.  See generally, e.g., Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11 (2012) (discussing the ways in which the Bush and Obama Administrations made legal decisions and navigated constitutional checks on counterterrorism efforts); Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2010) (describing “political constraints” on the executive’s legal decision-making authority); Metzger, supra note 6 (assessing methods by which administrative agencies interact with and interpret the Constitution); Curtis A. Bradley & Trevor W. Morrison, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097 (2013) (examining the practice-based nature of presidential authority and the ways in which legal dialogue constrains executive legal decision-making); Daphna Renan, The Law Presidents Make, 103 Va. L. Rev. 805 (2017) (describing the diffuse and informal structures through which the executive branch makes legal decisions); Peter M. Shane, Madison’s Nightmare: How Executive Power Threatens American Democracy (2009) (arguing that the expanse of executive power, and the corresponding collapse of congressional and judicial power, have allowed the president’s legal decisions to go dangerously unchecked). ↑
  11.  See, e.g., Harold H. Bruff, Untrodden Ground: How Presidents Interpret the Constitution (2015). ↑
  12.  See, e.g., Sophia Z. Lee, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, 96 Va. L. Rev. 799 (2010); Karen M. Tani, Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor, 100 Cornell L. Rev. 825 (2015). ↑
  13.  See, e.g., Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 Const. Comment. 307 (2006); Ronald A. Cass & Peter L. Strauss, The Presidential Signing Statements Controversy, 16 Wm. & Mary Bill Rts. J. 11 (2007); Louis Fisher, Signing Statements: Constitutional and Practical Limits, 16 Wm. & Mary Bill Rts. J. 183 (2007); Christopher S. Yoo, Presidential Signing Statements: A New Perspective, 164 U. Pa. L. Rev. 1801 (2016). ↑
  14.  See, e.g., Douglas W. Kmiec, OLC’s Opinion Writing Function: The Legal Adhesive for a Unitary Executive, 15 Cardozo L. Rev. 337 (1993); Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448 (2010); Rita W. Nealon, The Opinion Function of the Federal Attorney General, 25 N.Y.U. L. Rev. 825 (1950); see also Peter E. Heiser, Jr., The Opinion Writing Function of Attorneys General, 18 Idaho L. Rev. 9 (1982) (surveying legal opinions of state attorneys general, which have a similar function to those written by DOJ). ↑
  15.  See, e.g., Jonathan David Shaub, The Executive’s Privilege, 70 Duke L.J. 1, 31–32 (2020). ↑
  16.  See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246 (2001) (“We live today in an era of presidential administration.”); see also, e.g., Ashraf Ahmed, Lev Menand & Noah A. Rosenblum, The Making of Presidential Administration, 137 Harv. L. Rev. 2131, 2133 (2024) (observing that “we live in an era of presidential primacy” and that “[c]ontrol of the White House is so central to our governance that the transition from one President to another amounts to ‘regime change’” (citation omitted)); Peter M. Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 Ark. L. Rev. 161, 162 (1995) (arguing that, under the views of the Reagan and Bush Administrations, “not only was ‘executive’ power deemed legally impregnable, but an extraordinary amount of policy making power was argued to be ‘executive’” (citation omitted)). ↑
  17.  Consider, for example, major Trump Administration opinions on the scope of the Religion Clauses that remain in effect and binding on the executive branch and that have received little attention or treatment in the courts. See Religious Seasonal Decorations in Fed. Gov’t Bldgs., 45 Op. O.L.C. (Jan. 15, 2021) [hereinafter Religious Seasonal Decorations] (slip op.); Religious Restrictions on Cap. Fin. for Historically Black Colls. & Univs., 43 Op. O.L.C. 191 (2019). Or take major Obama Administration opinions on the scope of the take care authority and prosecutorial discretion that were challenged in court—but were never addressed by the Supreme Court before being countermanded by later executive action. See, e.g., Prioritizing & Deferring Removal of Certain Aliens Unlawfully Present in the U.S., 38 Op. O.L.C. 39 (2014) (subsequently withdrawn by Attorney General Barr); Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (failing to directly address the aforementioned Office of Legal Counsel opinion but ruling in opposition to that opinion’s reasoning), aff’d per curiam by an equally divided court, 579 U.S. 547 (2016) (splitting 4-4 and consequently leaving the U.S. Court of Appeals for the Fifth Circuit’s decision undisturbed). ↑
  18.  See Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025); see also Trump v. CASA, Inc., 145 S. Ct. 2540, 2548–49 (2025) (partially staying lower court preliminary injunctions of the birthright citizenship executive order). ↑
  19.  See Charlie Savage, Trump Sidelines Justice Dept. Legal Office, Eroding Another Check on His Power, N.Y. Times (Apr. 4, 2025), https://www.nytimes.com/2025/04/04/us/politics/tr‌ump-office-of-legal-counsel-doj.html (noting that the Office of Legal Counsel has “largely been sidelined” in the process of publishing executive orders by the Trump Administration). ↑
  20.  Bob Bauer & Jack Goldsmith, The Trump Executive Orders as “Radical Constitutionalism,” Substack: Exec. Functions (Feb. 3, 2025), https://executivefunctions.subst‌ack.com/p/the-trump-executive-orders-as-radical [https://perma.cc/R55F-BXNC]; see also Russell Vought, Renewing American Purpose, Am. Mind (Sept. 29, 2022), https://americanmi‌nd.org/salvo/renewing-american-purpose/ [https://perma.cc/28CK-RHZ6] (arguing that the American Right should “become radical constitutionalists” and “throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years” (emphasis omitted)). ↑
  21.  See infra Section III.A. ↑
  22.  For example, we take no view on proposals like Bruce Ackerman’s suggested “Supreme Executive Tribunal,” whose members would “think of themselves as judges for the executive branch, not lawyers for the sitting president.” Ackerman, supra note 7, at 143. For criticisms of this proposal, see, e.g., Morrison, supra note 7, at 1742–48; Renan, supra note 10, at 885–86. Whatever the merits of such reforms, they have limited relevance if one’s goal is to understand and learn from present arrangements. ↑
  23.  See, e.g., United States v. Arthrex, Inc., 141 S. Ct. 1970, 1993 (2021) (Gorsuch, J., concurring in part and dissenting in part) (“Any suggestion that the neutrality and independence the framers guaranteed for courts could be replicated within the Executive Branch was never more than wishful thinking.”). ↑
  24.  See, e.g., Ackerman, supra note 7, at 99 (noting that the Office of Legal Counsel “often generates a legal product that looks like a judicial opinion” but that “appearances are deceiving”). ↑
  25.  See, e.g., Kmiec, supra note 14, at 347 (“OLC practice . . . is thus highly analogous to that of the judiciary.”); Pillard, supra note 7, at 737–38 (lamenting OLC’s “[c]ourt-like passivity”); Renan, supra note 10, at 815 (noting that OLC’s “decisional process resembles a court”). ↑
  26.  As Trevor Morrison has documented, for example, the executive branch, like the judiciary, regularly engages in constitutional avoidance when interpreting federal statutes. See generally Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189 (2006). ↑
  27.  See William Baude, Severability First Principles, 109 Va. L. Rev. 1, 3–5 (2023). ↑
  28.  See infra Subsection II.A.3. ↑
  29.  See infra Subsection II.A.5. ↑
  30.  See infra Subsection II.A.4. ↑
  31.  462 U.S. 919 (1983) (invalidating the one-house veto of executive action). ↑
  32.  See Louis Fisher, The Legislative Veto: Invalidated, It Survives, 56 Law & Contemp. Probs. 273, 288–91 (1993). ↑
  33.  See, e.g., U.S. Dep’t of Def., DoD 7000.14-R, 3 Financial Management Regulation ch. 6, § 4.1 (2015) (describing required regulatory procedures for certain Department of Defense appropriations actions “to request the prior approval of the congressional defense committees”). ↑
  34.  See Metzger, supra note 6; Sophia Z. Lee, Our Administered Constitution: Administrative Constitutionalism from the Founding to the Present, 167 U. Pa. L. Rev. 1699 (2019); Bertrall L. Ross II, Embracing Administrative Constitutionalism, 95 B.U. L. Rev. 519 (2015). ↑
  35.  See William N. Eskridge, Jr., Presidential Constitutionalism and Marriage Equality, 167 U. Pa. L. Rev. 1891 (2019); Jedediah Purdy, Presidential Popular Constitutionalism, 77 Fordham L. Rev. 1837 (2009); Franklin, supra note 7; Scott M. Matheson, Jr., Presidential Constitutionalism in Perilous Times (2009). ↑
  36.  See Kagan, supra note 16, at 2246 (arguing that President Clinton “enhanced presidential control over administration” by “exercising directive authority over [executive] agencies and asserting personal ownership of their regulatory activity”); Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265 (2019); Jerry L. Mashaw & David Berke, Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience, 35 Yale J. on Regul. 549 (2018). More recent work by Ashraf Ahmed, Lev Menand, and Noah Rosenblum has shown how such arrangements are anything but inevitable: in the second half of the last century, “the law was reshaped to make presidential dominance of the administrative state possible.” Ahmed, Menand & Rosenblum, supra note 16, at 2133; see also Noah A. Rosenblum, The Antifascist Roots of Presidential Administration, 122 Colum. L. Rev. 1, 6 (2022) (noting that presidential administration “has only become more pronounced” since Justice Kagan published Presidential Administration). ↑
  37.  See Renan, supra note 10; David Fontana, Executive Branch Legalisms, 126 Harv. L. Rev. F. 21 (2012). ↑
  38.  See Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch From Within, 115 Yale L.J. 2314 (2006); see also Jon D. Michaels, An Enduring, Evolving Separation of Powers, 115 Colum. L. Rev. 515 (2015) (describing the construction of a new conception of separation of powers involving the administrative state). ↑
  39.  See Alexander M. Bickel, The Supreme Court, 1960 Term—Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961). ↑
  40.  See infra Subsection II.A.5. ↑
  41.  Indeed, on one theory the president has a duty to refuse to enforce unconstitutional laws. See Saikrishna Bangalore Prakash, The Executive’s Duty to Disregard Unconstitutional Laws, 96 Geo. L.J. 1613, 1616–17 (2008). ↑

  42.  Pillard, supra note 7, at 676–77. ↑

Identical, Not Fraternal Twins: RLUIPA, RFRA, and Damages

The federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and Religious Freedom Restoration Act (“RFRA”) are commonly labeled “twin” or “sister” statutes. Both reinstall a strict scrutiny regime for religious accommodations, and they use identical remedial language to do so, providing for “appropriate relief against a government.” In 2020’s Tanzin v. Tanvir, the Supreme Court interpreted RFRA’s remedial provision to allow for personal capacity damages suits against government officials. By that time, however, ten federal courts of appeals had reached the opposite conclusion regarding that same remedial text within RLUIPA. Post-Tanzin, no circuit has changed course. Instead, they hold fast to two objections grounded in RLUIPA’s Spending Clause underpinnings: (1) RLUIPA has not provided “clear notice” of potential liability, which is required for a party to be liable for damages; and (2) because government officials are non-recipients of federal funds, they cannot be held personally liable.

This Note argues that these circuits have misapplied Spending Clause jurisprudence. Background presumptions, text, context, and precedent all make clear that damages suits against individuals are on the table. And the Supreme Court has repeatedly held funding non-recipients monetarily liable for violation of Spending Clause statutes, creating a line of precedent at odds with the circuits’ divined rule. This Note also illustrates the injustice that these erroneous damages bars have worked upon the one million-plus incarcerated persons in state and local institutions whose rights under RLUIPA often lack a remedy.

Introduction

In his civil complaint filed in the U.S. District Court for the Middle District of Louisiana, Damon Landor alleged that Louisiana prison officials at the Raymond Laborde Correctional Center (“RLCC”) forcibly shaved his head upon transfer to the facility.1 1.Complaint & Jury Demand ¶ 37, Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085 (M.D. La. Sept. 29, 2022), aff’d, 82 F.4th 337 (5th Cir. 2023), cert. granted,145 S. Ct. 2814 (2025).Show More Landor, a devout Rastafarian, had been growing his dreadlocks for twenty years in compliance with the Nazarite vow not to cut one’s hair.2 2.Id.¶¶ 21–24.Show More Precedent in the U.S. Court of Appeals for the Fifth Circuit squarely forbade the officials’ conduct as a violation of Landor’s rights under the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”).3 3.See Ware v. La. Dep’t of Corr., 866 F.3d 263, 274 (5th Cir. 2017) (holding that a Louisiana Department of Corrections grooming policy, which prohibited inmates from having dreadlocks, was an unjustified substantial burden on Rastafarian inmates’ faith under RLUIPA).Show More Landor, in an abundance of caution, had brought with him to RLCC a physical copy of the opinion that established Rastafarian incarcerated persons’ right to grow their hair.4 4.Complaint & Jury Demand, supra note 1, ¶ 33.Show More RLCC’s intake officer, unpersuaded by binding federal law, tossed the opinion in the garbage.5 5.Id ¶ 34.Show More The warden arrived and demanded the religious documentation provided by Landor’s sentencing judge.6 6.Id.¶¶ 34–35.Show More Landor offered to request the documents from his attorney.7 7.Id.¶ 36.Show More “Too late for that,” the warden responded, before having Landor cuffed to a chair.8 8.Id ¶ 37.Show More

Despite its egregious facts, Landor’s complaint was summarily dismissed by the district court judge.9 9.Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085, at *3 (M.D. La. Sept. 29, 2022).Show More A Fifth Circuit panel reviewing the case on appeal “emphatically condemn[ed]” Landor’s treatment.10 10.Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023).Show More Nevertheless, the panel unanimously affirmed the dismissal.11 11.Id.Show More While a prima facie violation of RLUIPA had been alleged, no remedy was available to redress the injury suffered. Injunctive and declaratory relief were off the table since Landor was no longer incarcerated.12 12.See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (concluding that an incarcerated individual’s suit for equitable relief under RLUIPA is mooted once they leave the injurious facility).Show More The Supreme Court has held that RLUIPA claims against state officials in their official capacity—which are tantamount to claims against the state itself—are barred by state sovereign immunity.13 13.See Sossamon v. Texas (Sossamon II), 563 U.S. 277, 282, 293 (2011).Show More And Fifth Circuit precedent holds that monetary damages are unavailable under RLUIPA for suits against state officials in their individual capacity.14 14.Sossamon v. Lone Star State of Texas (Sossamon I), 560 F.3d 316, 331 (5th Cir. 2009), aff’d on other grounds sub nom. Sossamon II, 563 U.S. 277. Suits against an officer in their individual or “personal” capacity are lawsuits that “can be executed only against the official’s personal assets” and not the governmental entity for which they work. Kentucky v. Graham, 473 U.S. 159, 166 (1985).Show More

Sympathy aside, the federal courts left Landor empty-handed. This Note rejects that result as his proper judicial fate. Particularly, it argues that damages should be available in suits against officers in their individual capacity under RLUIPA. The present answer, across all federal circuits to have addressed the question, is that they are not.15 15.See, e.g., Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012); Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007).Show More But this unanimity is deceiving. Most courts have not readdressed the question since the U.S. Supreme Court handed down its 2020 decision in Tanzin v. Tanvir, which established that individual capacity suits for damages are available under the federal Religious Freedom Restoration Act (“RFRA”).16 16.141 S. Ct. 486, 493 (2020).Show More RFRA and RLUIPA are commonly labeled “twin” or “sister” statutes.17 17.See, e.g., Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022) (“sister”); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2396 n.13 (2020) (Alito, J., concurring) (“twin”).Show More Both were enacted as part of Congress’s efforts to legislatively abrogate the Supreme Court’s abandonment of the strict scrutiny standard for violations of the Free Exercise Clause in Employment Division v. Smith.18 18.See Holt v. Hobbs, 574 U.S. 352, 356–57 (2015).Show More They also share functionally identical remedial provisions, allowing for injured parties to seek “appropriate relief against a government.”19 19.42 U.S.C. §§ 2000bb-1(c), 2000cc-2(a).Show More

Despite this congruity and the common practice of using case law interpreting the text of one of these “twin” statute to elucidate the other’s meaning, the scope of RLUIPA’s remedies remains unchanged.20 20.See infra Section I.B.Show More The Fifth Circuit, one of the few courts of appeals to revisit the question of individual capacity damages suits following Tanzin, reaffirmed their unavailability under RLUIPA in Landor’s case.21 21.Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023).Show More The panel focused, as other circuits have, on the fact that RLUIPA, unlike RFRA, is Spending Clause legislation.22 22.See id. at 344 (explaining that Tanzin’s holding does not reach RLUIPA because “it addresses a different law that was enacted under a separate Congressional power”); see also Tripathy v. McKoy, 103 F.4th 106, 114 (2d Cir. 2024) (reaffirming a narrower interpretation of RFRA’s remedial scheme “for the simple reason that RFRA and RLUIPA were enacted pursuant to different constitutional provisions”).Show More As the panel explained, there are unique barriers to the imposition of liability under statutes enacted through Congress’s spending power—barriers that RLUIPA does not overcome in the context of individual officer damages suits.23 23.See Landor, 82 F.4that 341 (“Spending Clause legislation ‘operates like a contract,’ so ‘only the grant recipient—the state—may be liable for its violation.’” (quoting Sossamon I, 560 F.3d 316, 328 (5th Cir. 2009))).Show More However, six judges dissented from the denial of a rehearing en banc, finding the Spending Clause arguments unconvincing.24 24.See Landor v. La. Dep’t of Corr. & Pub. Safety, 93 F.4th 259, 265 (5th Cir. 2024) (Oldham, J., dissenting from the denial of rehearing en banc).Show More Nine other judges concurred in the denial, asserting that only the Supreme Court could resolve the intractable friction between prior precedent and Tanzin.25 25.See id. at 261 (Clement, J., concurring in the denial of rehearing en banc) (“[T]hreading the needle between Sossamon II and Tanzin is a task best reserved for the court that wrote those opinions.”).Show More As Damon Landor’s case sits pending on the Supreme Court’s docket and other circuits grapple with Tanzin’s upshot,26 26.See, e.g., Fuqua v. Raak, 120 F.4th 1346, 1360 (9th Cir. 2024) (acknowledging that Tanzin indicates that “appropriate relief” should carry the same meaning across RFRA and RLUIPA, but concluding that the court remains bound by pre-Tanzin circuit precedent).Show More the question is ripe and underexplored.

This Note proceeds in four Parts. Part I examines the establishment and demise of the strict scrutiny standard of review for claims under the First Amendment’s Free Exercise Clause. Part I also analyzes the enactment of RFRA and RLUIPA in response to Smith, the case that circumscribed the application of strict scrutiny review to free exercise claims, as well as the prevailing judicial interpretations of these statutes’ remedial schemes. Parts II and III separately address each of the two Spending Clause rationales for the unavailability of damages against individual state and local officials under RLUIPA: (1) that RLUIPA does not provide the requisite “clear notice” to individual officers of their potential liability for damages; and (2) that individual officials are not themselves recipients of federal funds and thus cannot be held personally liable for violating RLUIPA’s terms. Parts II and III challenge these conclusions. Specifically, these Parts conclude that “clear notice” has been provided and non-recipients of federal funds can be held liable for violations of the conditions of spending power legislation, so damages should be available against individual officers under RLUIPA. Finally, Part IV discusses the real-world implications of the issues addressed in this Note. For the over 1.5 million individuals currently incarcerated in federally funded state prisons and local jails, the Free Exercise Clause permits almost across-the-board denial of religious accommodations. And RLUIPA currently extends a right to religious accommodations but often no remedy.

  1.  Complaint & Jury Demand ¶ 37, Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085 (M.D. La. Sept. 29, 2022), aff’d, 82 F.4th 337 (5th Cir. 2023), cert. granted, 145 S. Ct. 2814 (2025). ↑
  2.  Id. ¶¶ 21–24. ↑
  3.  See Ware v. La. Dep’t of Corr., 866 F.3d 263, 274 (5th Cir. 2017) (holding that a Louisiana Department of Corrections grooming policy, which prohibited inmates from having dreadlocks, was an unjustified substantial burden on Rastafarian inmates’ faith under RLUIPA). ↑
  4.  Complaint & Jury Demand, supra note 1, ¶ 33. ↑
  5.  Id ¶ 34. ↑
  6.  Id. ¶¶ 34–35. ↑
  7.  Id. ¶ 36. ↑
  8.  Id ¶ 37. ↑
  9.  Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085, at *3 (M.D. La. Sept. 29, 2022). ↑
  10.  Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023). ↑
  11.  Id. ↑
  12.  See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (concluding that an incarcerated individual’s suit for equitable relief under RLUIPA is mooted once they leave the injurious facility). ↑
  13.  See Sossamon v. Texas (Sossamon II), 563 U.S. 277, 282, 293 (2011). ↑
  14.  Sossamon v. Lone Star State of Texas (Sossamon I), 560 F.3d 316, 331 (5th Cir. 2009), aff’d on other grounds sub nom. Sossamon II, 563 U.S. 277. Suits against an officer in their individual or “personal” capacity are lawsuits that “can be executed only against the official’s personal assets” and not the governmental entity for which they work. Kentucky v. Graham, 473 U.S. 159, 166 (1985). ↑
  15.  See, e.g., Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012); Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007). ↑
  16.  141 S. Ct. 486, 493 (2020). ↑
  17.  See, e.g., Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022) (“sister”); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2396 n.13 (2020) (Alito, J., concurring) (“twin”). ↑
  18.  See Holt v. Hobbs, 574 U.S. 352, 356–57 (2015). ↑
  19.  42 U.S.C. §§ 2000bb-1(c), 2000cc-2(a). ↑
  20.  See infra Section I.B. ↑
  21.  Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023). ↑
  22.  See id. at 344 (explaining that Tanzin’s holding does not reach RLUIPA because “it addresses a different law that was enacted under a separate Congressional power”); see also Tripathy v. McKoy, 103 F.4th 106, 114 (2d Cir. 2024) (reaffirming a narrower interpretation of RFRA’s remedial scheme “for the simple reason that RFRA and RLUIPA were enacted pursuant to different constitutional provisions”). ↑
  23.  See Landor, 82 F.4th at 341 (“Spending Clause legislation ‘operates like a contract,’ so ‘only the grant recipient—the state—may be liable for its violation.’” (quoting Sossamon I, 560 F.3d 316, 328 (5th Cir. 2009))). ↑
  24.  See Landor v. La. Dep’t of Corr. & Pub. Safety, 93 F.4th 259, 265 (5th Cir. 2024) (Oldham, J., dissenting from the denial of rehearing en banc). ↑
  25.  See id. at 261 (Clement, J., concurring in the denial of rehearing en banc) (“[T]hreading the needle between Sossamon II and Tanzin is a task best reserved for the court that wrote those opinions.”). ↑

  26.  See, e.g., Fuqua v. Raak, 120 F.4th 1346, 1360 (9th Cir. 2024) (acknowledging that Tanzin indicates that “appropriate relief” should carry the same meaning across RFRA and RLUIPA, but concluding that the court remains bound by pre-Tanzin circuit precedent). ↑

Rethinking Youth Privacy

Congress and state legislatures are showing renewed interest in youth privacy, proposing myriad new laws to address data extraction, addiction, manipulation, and more. Almost all of their proposals, and youth privacy law in general, follow what we call the parental control model. The model is erected in the name of children, but it mostly ignores their expressed privacy interests. Under the model, parents are asked to provide consent for the collection of children’s data, to check on the handling of that data, and to protect children from danger. Because parental control dominates policymaking and scholarly discourse, it goes unquestioned. This Article challenges the status quo. Parental control risks harm to vulnerable children, overburdens caregivers (who are more often women), and denies youth the intimate privacy that they need to grow and develop close relationships, including, ironically, relationships with their parents. The parental control model disserves nearly everyone involved except companies that press for its adoption because it earns them massive advertising profits without costly responsibilities for youth safety and privacy. The time is now to reimagine the youth privacy project. We need to shed the yoke of exclusive parental control and to protect the intimate privacy that youth want, expect, and deserve. Our proposal foregrounds youth voices and intimate privacy interests. It calls for policymakers to address corporate amassing of youth data and to place responsibility on their shoulders, which accords with what young people say they want. Companies are best situated to secure youth privacy and to minimize risks to child safety. Beyond law, parents should be encouraged to act more as partners with their children in the effort to protect their intimate privacy. That personal imperative will redound to parents’ and children’s benefit and engender trust and love.

Introduction

The privacy afforded young people is under threat. Social media companies track and share young people’s online activities with advertisers, generating billions in profits.1 1.Alfred Ng, Where Parental Snooping Is Becoming the Law, Politico (Apr. 11, 2023, 1:50 PM), https://www.politico.com/news/2023/04/11/social-media-privacy-parents-kids-00‌091400.Show More Commercial websites trap young people in endless loops of data extraction, data-driven targeted advertisements, and video feeds that manipulate behavior, facilitate addiction, and increase screen time.2 2.Samuel Levine, Bureau of Consumer Prot., Protecting Kids From Stealth Advertising in Digital Media 1–5 (2023), https://www.ftc.gov/system/files/ftc_gov/pdf/p214505kidsadvertis‌ingstaffperspective092023.pdf [https://perma.cc/39DS-KZYF].Show More Surveillance software monitors students’ laptop and tablet activities to detect bullying, suicidal ideation, and threats.3 3.Nir Kshetri, School Surveillance of Students via Laptops May Do More Harm Than Good, The 74 (Jan. 19, 2022), https://www.the74million.org/article/school-surveillance-of-students-via-laptops-may-do-more-harm-than-good/ [https://perma.cc/MMX8-79LE].Show More

Parental supervision has been policymakers’ go-to solution to securing youth privacy interests for decades. The Children’s Online Privacy Protection Act of 1998 (“COPPA”) requires websites and online services to ask parents for permission to handle children’s personal data and requires parents to contact those services to stop the further collection and sale of their children’s personal data.4 4.E.g., Children’s Online Privacy Protection Act (COPPA) of 1998, 15 U.S.C. §§ 6501–6506.Show More On January 16, 2025, the Federal Trade Commission (“FTC”), which enforces COPPA, finalized changes to its COPPA Rule to give parents control over advertisements targeted to children.5 5.Children’s Online Privacy Protection Rule, 16 C.F.R. § 312 (2025).Show More The Kids Online Safety Act, which the Senate passed in June 2024, would enhance parental authority by requiring online platforms to provide controls for parents so they can monitor accounts held by children aged sixteen and younger.6 6.Kids Online Safety and Privacy Act, S. 2073, 118th Cong. § 103(b) (as passed by Senate, July 30, 2024); see also H.B. 311, 2023 Gen. Sess., Reg. Sess. (Utah 2023) (“Social Media Usage Amendments”); S.B. 152, 2023 Gen. Sess., Reg. Sess. (Utah 2023) (giving parents power to monitor children’s social media accounts without their knowledge or permission).Show More

Under the mandate of law and the hydraulics of social pressure, parents have gotten the message that they should be monitoring their children.7 7.See, e.g., What Parents Should Know About Parental Control Apps, Nat’l Cybersecurity All. (June 28, 2023), https://staysafeonline.org/programs/events/what-parents-should-know-a‌bout-parental-control-apps-webinar/ [https://perma.cc/7R48-S727] (“[A]n essential part of parenting in the 21st Century is monitoring your children’s digital lives . . . [so] parents can work to keep their kids safe.”); Top 10 Best Parental Control Apps (2025), Fam. Online Safety, https://www.familyonlinesafety.com/best-paretnal-control-apps [https://perma.cc/DHT4-5‌TXT] (last updated Oct. 2025) (“Parental control apps are fast becoming a must have for any parent.”).Show More According to one study, 90% of parents surveyed try to monitor the digital activities of younger children (aged six through twelve); 40% of parents say that they endeavor to monitor the activities of older children (aged thirteen through seventeen).8 8.Microsoft, Global Online Safety Survey 2024, at 38–39 (2024), https://news.microsoft.co‌m/wp-content/uploads/prod/sites/40/2024/02/Microsoft-Global-Online-Safety-Survey-2024.‌pdf [https://perma.cc/R6WM-LFFY] (explaining that parents surveyed monitored children by receiving activity reports, reviewing friend requests, and reviewing and adjusting children’s privacy settings on accounts and devices).Show More Utah State Senator Kathleen Riebe, who uses an app to control her son’s phone, urges fellow parents to do the same.9 9.Utah Senate, Senate Floor Audio on S.B. 152, Day 28, 2023 Gen. Sess., at 01:05:58 (Feb. 13, 2023) [hereinafter Utah Senate Audio (Feb. 13, 2023)], https://le.utah.gov/av/floorArchive‌.jsp?markerID=121381 [https://perma.cc/34RU-SG94] (statement of Sen. Kathleen Riebe).Show More

The prevailing approach to children’s privacy in the United States follows what we call the parental control model—the ecosystem of laws, practices, logic, and ideologies that give parents authority over children’s privacy interests. That model is erected in the name of children’s privacy, but it mostly excludes youth and their privacy interests from the calculus.

Lawmakers are scrambling to tackle profoundly harmful corporate practices that exploit children’s data, including the manipulation of young people to consume material that causes self-doubt, depression, and suicide and exposes children to harassment and predation. Policymakers’ go-to response—parental control—is a failure. While the parental control model was never well suited to protect children’s privacy, it cannot meet this moment.

No parent, no matter how well intentioned and resourced, can ensure that children’s privacy is prioritized and protected. No parent can meaningfully curtail corporate data collection, either for themselves or their children.10 10.See Geoffrey A. Fowler, Your Kids’ Apps Are Spying on Them, Wash. Post (June 9, 2022), https://www.washingtonpost.com/technology/2022/06/09/apps-kids-privacy/ (noting that by the time a person turns thirteen, “online advertising firms hold an average of 72 million data points” on them).Show More Therefore, the inevitable result of parental authority is more corporate monetization of children’s data.11 11.Press Release, Fed. Trade Comm’n, FTC Staff Report Finds Large Social Media and Video Streaming Companies Have Engaged in Vast Surveillance of Users with Lax Privacy Controls and Inadequate Safeguards for Kids and Teens (Sept. 19, 2024), https://www.ftc.gov/‌news-events/news/press-releases/2024/09/ftc-staff-report-finds-large-social-media-video-stre‌aming-companies-have-engaged-vast-surveillance [https://perma.cc/UUT7-RFES] (detailing “the data collection and use practices of major social media and video streaming services” to “incentivize[] mass collection of user data to monetize, especially through targeted advertising”).Show More As for safety, even if parents could minimize or prevent some hazards, exclusive parental responsibilities mean exclusive parental burdens, and parents are ill-equipped to shoulder them. Also, not all parents are well meaning: youth have been thrown out of their homes or beaten after adults discovered children’s emerging LGBTQ+ identities by accessing their private online activities.12 12.Jamie Gorosh & Chris Wood, LGBT Tech & Future of Priv. F., Student Voices: LGBTQ+ Experiences in the Connected Classroom 7 (2023) (noting a 2020 survey by the Trevor Project that found “29% of LGBTQ+ youth have experienced homelessness, been kicked out of their homes, or have run away” (citation omitted)); see also Anne Collier, Why I Struggle Mightily with the New Utah Law, Net Fam. News (Mar. 30, 2023), https://www.netfamilynews.org/wh‌y-i-struggle-mightily-with-the-new-utah-law [https://perma.cc/L2AG-NDHR] (arguing that laws giving parents control over children’s online accounts “could end up supporting abusive parents who use it to monitor and punish children who use social media to get help”).Show More

The parental control model has a perverse downside: it undermines the very privacy that young people need to grow, mature, and thrive. In this Article, we use the term youth intimate privacy to refer to the privacy that young people claim, expect, and deserve.13 13. See generally Danielle Keats Citron, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age, at xii–xiii (2022) [hereinafter Citron, Fight for Privacy]. Intimate privacy is a capacious privacy interest that is critical to identity development, self-esteem, and love; it has special importance because it helps youth learn the skills of autonomy, independence, and relationship building, which are essential for adulthood. See infra Section III.B. We focus on youth intimate privacy for practical and normative reasons. Much of what law regulates implicates youth intimate privacy, and the privacy that most matters to human flourishing involves the privacy around our intimate lives. See generally infra Part III. Because of its importance and because even prosaic personal data becomes intimate data when amassed, we use the phrase youth intimate privacy interchangeably with youth privacy unless we signal otherwise.Show More Youth intimate privacy involves others’ access to, and information about, minors’ bodies, thoughts, health, sex, gender, sexual orientation, sexual activities, and close relationships, whether in physical or digital activities or spaces.14 14.Citron, Fight for Privacy, supra note 13, at xii.Show More Youth need intimate privacy for maturation, self-esteem, and close relationships.15 15.Danielle Keats Citron, The Surveilled Student, 76 Stan. L. Rev. 1439, 1457–60 (2024) [hereinafter Citron, Surveilled Student].Show More Intimate privacy is a prerequisite for autonomy and maturation.16 16.See, e.g., Maxine Wolfe, Childhood and Privacy, in Children and the Environment 175, 189 (Irwin Altman & Joachim F. Wohlwill eds., 1978) (explaining that “children’s experiences with privacy feed back into their sense of self-esteem and help define the range, limits, and consequences of individual autonomy”); Ross D. Parke, Children’s Home Environments: Social and Cognitive Effects, in Children and the Environment, supra, at 33, 66–68 (explaining how children’s need for privacy increases with age and varies by situation and activity).Show More Only with privacy can children grow and develop into democratic citizens, an oft-stated goal of parenting, education, and socialization.17 17.See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (“That [public schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual . . . .”).Show More

Current privacy law ignores all of this and damages youth intimate privacy. It also frays parent-child relationships rather than enhances them.18 18.Valerian J. Derlega & Alan L. Chaikin, Sharing Intimacy: What We Reveal to Others and Why 15 (1975) (explaining that children can and occasionally will claim zones of privacy and that when parents disrespect those zones, children lose the trust necessary for close relationships).Show More Because children under parental surveillance feel that their trust has been betrayed, they do their best to hide their online activities from their parents.19 19.For a recent example, see Denise Witmer, Why Teens Need Privacy From Their Parents, Yahoo (July 29, 2024, 11:36 AM), https://www.yahoo.com/lifestyle/why-teens-privacy-paren‌ts-153635430.html [https://perma.cc/U2Q2-DNNV]. Part IV explores the rich social science literature in detail.Show More This puts youth at greater risk from the very hazards that rightly worry parents and policymakers.20 20.Ng, supra note 1 (“Researchers have found that parental monitoring apps . . . were associated with increased chances of teen online victimization, compared to teens whose parents didn’t use monitoring services.”); see Citron, Fight for Privacy, supra note 13, at 14–15 (explaining that some health apps pose risks to young women and girls’ health privacy and safety); Ari Ezra Waldman, Privacy as Trust: Information Privacy for an Information Age 62–78 (2018) [hereinafter Waldman, Privacy as Trust].Show More

In short, the parental control model is a wolf in sheep’s clothing. It is an empowering facade that leaves parents unable to protect children and undermines the intimate privacy that youth need to thrive. It is bad for parents, children, and parent-child relationships. And it is bad for the pursuit of equality. The parental control model places impossible burdens on caregivers, many of whom are women.21 21.Microsoft, supra note 8, at 39 (identifying mothers as more active in monitoring their children’s online activities).Show More It does the opposite of what it purports to do—it hurts parents and children, and it does not lead to greater privacy protections. Indeed, the central beneficiaries of parental control are the companies that earn massive profits from exploiting children’s data and endangering their safety.

Policymakers must reckon with the inadequacies of the current approach. They should reject exclusive parental control and choose a structural and collaborative posture to youth intimate privacy for the good of children, parents, families, and democracy. We propose a new model to do just that. Our approach foregrounds youth voices and interests, prioritizes legal reform focused on corporate responsibility, encourages parental-child collaboration, and supports young people and their parents.

Now is the time to rethink youth intimate privacy. Federal proposals are being introduced and debated. States are filling the void, but their work is just beginning. Plus, the risks are undeniable: the advertising-driven information economy invades young people’s privacy at alarming rates.22 22.Katie Joseff, Behavioral Advertising Harms: Kids and Teens, Common Sense Media 2–3 (2022), https://www.commonsensemedia.org/sites/default/files/featured-content/files/beha‌vioral_-surveillance-advertising-brief.pdf [https://perma.cc/N2S7-XFTK] (noting that the advertising technology industry has at least seventy-two million data points about each child before they are thirteen).Show More Rapidly advancing artificial intelligence metastasizes those privacy risks by increasing demand for data about individuals.23 23.E.g., Harry Surden, Artificial Intelligence and Law: An Overview, 35 Ga. St. U. L. Rev. 1305, 1315–16 (2019).Show More Adolescents, particularly young women, face the dangers of image-based sexual abuse and pornographic deepfakes.24 24.Natasha Singer, Teen Girls Confront an Epidemic of Deepfake Nudes in Schools, N.Y. Times (Apr. 8, 2024), https://www.nytimes.com/2024/04/08/technology/deepfake-ai-nudes-w‌estfield-high-school.html.Show More

In developing this argument, this Article makes several contributions to legal scholarship. We challenge the conventional approach that automatically associates parental privacy control with youth privacy. We interrogate the often-ignored step of relying upon parents to the exclusion, and sometimes to the detriment, of children themselves. We unearth legislative history showing that many so-labeled youth privacy laws were drafted to empower parents to dictate young peoples’ activities, rather than to directly secure youth privacy interests. We highlight youth perspectives on intimate privacy, drawn from state legislative testimony, which have been left out of scholarly discussion in the United States. Our vision of youth privacy law charts a more straightforward, inclusive, and productive path. It begins with structural reform because individualized efforts are ineffective, burdensome, and isolating. It calls for the involvement of all parties (including youth, parents, and schools) in securing youth privacy interests. Adjusting parental control at the margins or shifting domination from parents to young people or schools is insufficient.

This Article has four parts. Part I shows the breadth of the parental control model. It surfaces the tradition of parental privacy authority in youth privacy law, from the rules governing the collection and processing of children’s data by digital platforms to data concerning youth as students.

Part II uncovers the prevailing rationales for the parental control model, filling a gap left by existing privacy scholarship that has, for the most part, assumed that parental control is obvious and acceptable. Those explanations involve distinct but interrelated categories: social science, norms, and legal policy. First, we show that the parental control model depends on a particular view of childhood development that sees maturity, defined by age, as a prerequisite for making informed choices about privacy. Second, the parental control model is based on legal rationales borrowed from consumer privacy, including the rationality demands of the “notice-and-consent” approach whereby adults are presumed to read privacy policies and make choices about online disclosure.25 25.The literature on notice-and-consent is voluminous. For discussions specifically connecting notice-and-consent with the presumption of rationality, see, e.g., Ari Ezra Waldman, Industry Unbound: The Inside Story of Privacy, Data, and Corporate Power 52–63 (2021); Woodrow Hartzog, Privacy’s Blueprint: The Battle to Control the Design of New Technologies 35–36 (2018).Show More Last, it reflects norms of the family in which adults inculcate children with their values and ideals.

Part III challenges these rationales, finding them uninformed, overinclusive, and discriminatory. This Part highlights how exclusive parental control over youth privacy is not supported by the social science literature, which emphasizes the importance of privacy to childhood development. It explores how social norm-based rationales for parental control are based on an overly romanticized conception of the family, in terms of both gender roles and the relationship between caregivers and youth. Relying on this vision of the family sweeps aside the reality that many young people, including LGBTQ+ children, grow up without that romanticized family dynamic. Finally, this Part shows how the legal rationales border on the absurd: a long line of studies shows that adults are incapable of bearing the burden of privacy self-management and effectuating their own privacy preferences,26 26.See, e.g., Daniel J. Solove, Privacy Self-Management and the Consent Dilemma, 126 Harv. L. Rev. 1880, 1882–93 (2013).Show More and yet current law expects them to do so not only for themselves but also for their children.

Part IV offers a new model for youth intimate privacy based on four principles: respect for youth voices, structural reform, collaboration, and support. Lawmakers and regulatory authorities should step in to ensure that youth intimate privacy interests are secured in the information economy—the time is now to regulate the very companies whose data-extractive practices undermine youth intimate privacy and endanger child safety. Lawmakers can and should collaborate with and listen to young people about their privacy expectations and needs. Schools and youth can support parents, alleviating parental isolation from systems of support and bearing some of the burdens. We consider this piece a first step, not a precise road map. We want to encourage the development of a youth intimate privacy project that can evolve to meet new challenges and accommodate different interests.

  1.  Alfred Ng, Where Parental Snooping Is Becoming the Law, Politico (Apr. 11, 2023, 1:50 PM), https://www.politico.com/news/2023/04/11/social-media-privacy-parents-kids-00‌091400. ↑
  2.  Samuel Levine, Bureau of Consumer Prot., Protecting Kids From Stealth Advertising in Digital Media 1–5 (2023), https://www.ftc.gov/system/files/ftc_gov/pdf/p214505kidsadvertis‌ingstaffperspective092023.pdf [https://perma.cc/39DS-KZYF]. ↑
  3.  Nir Kshetri, School Surveillance of Students via Laptops May Do More Harm Than Good, The 74 (Jan. 19, 2022), https://www.the74million.org/article/school-surveillance-of-students-via-laptops-may-do-more-harm-than-good/ [https://perma.cc/MMX8-79LE]. ↑
  4.  E.g., Children’s Online Privacy Protection Act (COPPA) of 1998, 15 U.S.C. §§ 6501–6506. ↑
  5.  Children’s Online Privacy Protection Rule, 16 C.F.R. § 312 (2025). ↑
  6.  Kids Online Safety and Privacy Act, S. 2073, 118th Cong. § 103(b) (as passed by Senate, July 30, 2024); see also H.B. 311, 2023 Gen. Sess., Reg. Sess. (Utah 2023) (“Social Media Usage Amendments”); S.B. 152, 2023 Gen. Sess., Reg. Sess. (Utah 2023) (giving parents power to monitor children’s social media accounts without their knowledge or permission). ↑
  7.  See, e.g., What Parents Should Know About Parental Control Apps, Nat’l Cybersecurity All. (June 28, 2023), https://staysafeonline.org/programs/events/what-parents-should-know-a‌bout-parental-control-apps-webinar/ [https://perma.cc/7R48-S727] (“[A]n essential part of parenting in the 21st Century is monitoring your children’s digital lives . . . [so] parents can work to keep their kids safe.”); Top 10 Best Parental Control Apps (2025), Fam. Online Safety, https://www.familyonlinesafety.com/best-paretnal-control-apps [https://perma.cc/DHT4-5‌TXT] (last updated Oct. 2025) (“Parental control apps are fast becoming a must have for any parent.”). ↑
  8.  Microsoft, Global Online Safety Survey
    2024,

    at 38–39 (2024), https://news.microsoft.co‌m/wp-content/uploads/prod/sites/40/2024/02/Microsoft-Global-Online-Safety-Survey-2024.‌pdf [https://perma.cc/R6WM-LFFY] (explaining that parents surveyed monitored children by receiving activity reports, reviewing friend requests, and reviewing and adjusting children’s privacy settings on accounts and devices). ↑

  9.  Utah Senate, Senate Floor Audio on S.B. 152, Day 28, 2023 Gen. Sess., at 01:05:58 (Feb. 13, 2023) [hereinafter Utah Senate Audio (Feb. 13, 2023)], https://le.utah.gov/av/floorArchive‌.jsp?markerID=121381 [https://perma.cc/34RU-SG94] (statement of Sen. Kathleen Riebe). ↑
  10.  See Geoffrey A. Fowler, Your Kids’ Apps Are Spying on Them, Wash. Post (June 9, 2022), https://www.washingtonpost.com/technology/2022/06/09/apps-kids-privacy/ (noting that by the time a person turns thirteen, “online advertising firms hold an average of 72 million data points” on them). ↑
  11.  Press Release, Fed. Trade Comm’n, FTC Staff Report Finds Large Social Media and Video Streaming Companies Have Engaged in Vast Surveillance of Users with Lax Privacy Controls and Inadequate Safeguards for Kids and Teens (Sept. 19, 2024), https://www.ftc.gov/‌news-events/news/press-releases/2024/09/ftc-staff-report-finds-large-social-media-video-stre‌aming-companies-have-engaged-vast-surveillance [https://perma.cc/UUT7-RFES] (detailing “the data collection and use practices of major social media and video streaming services” to “incentivize[] mass collection of user data to monetize, especially through targeted advertising”). ↑
  12.  Jamie Gorosh & Chris Wood, LGBT Tech & Future of Priv. F., Student Voices: LGBTQ+ Experiences in the Connected Classroom
    7

    (2023) (noting a 2020 survey by the Trevor Project that found “29% of LGBTQ+ youth have experienced homelessness, been kicked out of their homes, or have run away” (citation omitted)); see also Anne Collier, Why I Struggle Mightily with the New Utah Law, Net Fam. News (Mar. 30, 2023), https://www.netfamilynews.org/wh‌y-i-struggle-mightily-with-the-new-utah-law [https://perma.cc/L2AG-NDHR] (arguing that laws giving parents control over children’s online accounts “could end up supporting abusive parents who use it to monitor and punish children who use social media to get help”). ↑

  13.  See generally Danielle Keats Citron, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age, at xii–xiii (2022) [hereinafter Citron, Fight for Privacy]. Intimate privacy is a capacious privacy interest that is critical to identity development, self-esteem, and love; it has special importance because it helps youth learn the skills of autonomy, independence, and relationship building, which are essential for adulthood. See infra Section III.B. We focus on youth intimate privacy for practical and normative reasons. Much of what law regulates implicates youth intimate privacy, and the privacy that most matters to human flourishing involves the privacy around our intimate lives. See generally infra Part III. Because of its importance and because even prosaic personal data becomes intimate data when amassed, we use the phrase youth intimate privacy interchangeably with youth privacy unless we signal otherwise. ↑
  14.  Citron, Fight for Privacy, supra note 13, at xii. ↑
  15.  Danielle Keats Citron, The Surveilled Student,
    76

    Stan. L. Rev. 1439, 1457–60 (2024) [hereinafter Citron, Surveilled Student]. ↑

  16.  See, e.g., Maxine Wolfe, Childhood and Privacy, in Children and the Environment 175, 189 (Irwin Altman & Joachim F. Wohlwill eds., 1978) (explaining that “children’s experiences with privacy feed back into their sense of self-esteem and help define the range, limits, and consequences of individual autonomy”); Ross D. Parke, Children’s Home Environments: Social and Cognitive Effects, in Children and the Environment, supra, at 33, 66–68 (explaining how children’s need for privacy increases with age and varies by situation and activity). ↑
  17.  See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (“That [public schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual . . . .”). ↑
  18.  Valerian J. Derlega & Alan L. Chaikin, Sharing Intimacy: What We Reveal to Others and Why 15 (1975) (explaining that children can and occasionally will claim zones of privacy and that when parents disrespect those zones, children lose the trust necessary for close relationships). ↑
  19.  For a recent example, see Denise Witmer, Why Teens Need Privacy From Their Parents, Yahoo (July 29, 2024, 11:36 AM), https://www.yahoo.com/lifestyle/why-teens-privacy-paren‌ts-153635430.html [https://perma.cc/U2Q2-DNNV]. Part IV explores the rich social science literature in detail. ↑
  20.  Ng, supra note 1 (“Researchers have found that parental monitoring apps . . . were associated with increased chances of teen online victimization, compared to teens whose parents didn’t use monitoring services.”); see Citron, Fight for Privacy, supra note 13, at 14–15 (explaining that some health apps pose risks to young women and girls’ health privacy and safety); Ari Ezra Waldman, Privacy as Trust: Information Privacy for an Information Age 62–78 (2018) [hereinafter Waldman, Privacy as Trust]. ↑
  21.  Microsoft, supra note 8, at 39 (identifying mothers as more active in monitoring their children’s online activities). ↑
  22.  Katie Joseff, Behavioral Advertising Harms: Kids and Teens, Common Sense Media 2–3 (2022), https://www.commonsensemedia.org/sites/default/files/featured-content/files/beha‌vioral_-surveillance-advertising-brief.pdf [https://perma.cc/N2S7-XFTK] (noting that the advertising technology industry has at least seventy-two million data points about each child before they are thirteen). ↑
  23.  E.g., Harry Surden, Artificial Intelligence and Law: An Overview, 35 Ga. St. U. L. Rev. 1305, 1315–16 (2019). ↑
  24.  Natasha Singer, Teen Girls Confront an Epidemic of Deepfake Nudes in Schools, N.Y. Times
    (

    Apr. 8, 2024), https://www.nytimes.com/2024/04/08/technology/deepfake-ai-nudes-w‌estfield-high-school.html. ↑

  25.  The literature on notice-and-consent is voluminous. For discussions specifically connecting notice-and-consent with the presumption of rationality, see, e.g., Ari Ezra Waldman, Industry Unbound: The Inside Story of Privacy, Data, and Corporate Power 52–63 (2021); Woodrow Hartzog, Privacy’s Blueprint: The Battle to Control the Design of New Technologies 35–36 (2018). ↑

  26.  See, e.g., Daniel J. Solove, Privacy Self-Management and the Consent Dilemma,

    126

    Harv. L. Rev.

    1880, 1882–93

    (2013). ↑

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