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The Fearless Executive, Crime, and the Separation of Powers

­­Trump v. United States’s discovery of broad immunity has rendered the presidency more imperial and unaccountable. This Article tackles four questions. First, are the Constitution’s grants of specific and distinct privileges and immunities for federal officials illustrative of a broader, if implicit, set of privileges and immunities? Second, what limits, if any, does the Constitution impose on the power of Congress to criminalize the constitutional acts of the President, members of Congress, and the courts? Consider whether a federal judge can be prosecuted for her allegedly corrupt judicial judgment, one meant to satisfy a bribe previously received. Third, even if the Constitution grants immunity for constitutional acts, does it bestow any immunity for statutory acts? The Court held there was at least a presumptive immunity for presidents without pausing to discuss why the Constitution would implicitly immunize a branch’s exercise of statutory authority. Finally, when should we read a generic statute to cover the official acts of constitutional officers? Consider whether federal obstruction statutes should be construed to apply to judges and presidents as they exercise their constitutional powers over trials and prosecutions. As to the first question, the Constitution carefully conveys to each branch a unique and limited set of privileges. It is a mistake to read the Constitution as if it implicitly bestowed further shields. Instead, Congress may choose to bestow additional needful and appropriate safeguards to the three branches. Regarding the second question, Congress can criminalize the following sorts of acts: violations of the separation of powers, corrupt exercises of constitutional authority, and acts that transgress federal statutory law. Hence, a corrupt pardon or a corrupt judicial order can form the basis of a federal crime even though each might seem to be authorized by the Constitution. On the third matter, even if one thought the Constitution immunized certain exercises of constitutional powers, there is little reason to suppose it also immunizes the exercise of statutory powers by constitutional officers. On the final issue, we ought to disfavor reading generic criminal laws as if they apply to exercises of constitutional powers. We should be wary of supposing that Congress sought to police the constitutionally authorized acts of constitutional actors via general prohibitions that principally regulate ordinary persons.

Introduction

Commentators have long asserted that Donald Trump committed crimes in his first term.1 1.See, e.g., John Cassidy, The Mueller Report Is Clear: Donald Trump Repeatedly Tried to Obstruct Justice, New Yorker (Apr. 18, 2019), https://www.newyorker.com/news/our-column‌ists/the-mueller-report-couldnt-be-more-clear-donald-trump-repeatedly-tried-to-obstruct-just‌ice; Matt Ford, Did President Trump Obstruct Justice?, The Atlantic (May 16, 2017), https://www.theatlantic.com/politics/archive/2017/05/trump-comey-obstruction-justice/526‌9‌53; Ryan Goodman, Did Trump Obstruct Justice?, Politico Mag. (May 17, 2017), https://‌www.politico.com/magazine/story/2017/05/17/did-trump-obstruct-justice-215147 [https://pe‌rma.cc/S9V5-C9AL]; Samuel Estreicher & Christopher Owens, Did President Trump Commit the Federal Crime of Bribery?, Verdict (Dec. 3, 2019), https://verdict.justia.com/2019/12/03/‌did-president-trump-commit-the-federal-crime-of-bribery [https://perma.cc/‌CT3S-AG3T]; Bob Bauer, The Failures of the Mueller Report’s Campaign Finance Analysis, Just Sec. (May 3, 2019), https://www.justsecurity.org/63920/the-failures-of-the-mueller-report-campai‌gn-finance-analysis/ [https://perma.cc/T8SQ-2BKG].Show More After he left the Oval Office, three prosecutors2 2.Jack Smith was the prosecutor in both the Florida and Washington, D.C., cases; Fani Willis prosecuted the Fulton County, Georgia, case; and Alvin Bragg prosecuted the case in New York. Donald Trump’s Criminal Cases, in One Place, CNN (Jan. 10, 2025), https://www.cn‌n‌.com/interactive/2023/07/politics/trump-indictments-criminal-cases/ [https://perma.cc/CW‌75‌-L6N2]. Trump’s Georgia case is indefinitely paused while the state supreme court considers whether the prosecutor should be disqualified, and the President is currently appealing his New York criminal conviction. See Danny Hakim, Atlanta D.A. Asks Georgia Court to Review Decision Kicking Her Off Trump Case, N.Y. Times (Jan. 8, 2025), https://www.ny‌ti‌mes.com/2025/01/08/us/trump-fani-willis-appeal-georgia.html; Jonah E. Bromwich, As Establishment Warms to Trump, Elite Law Firm Takes on His Appeal, N.Y. Times (Jan. 29, 2025), https://www.nytimes.com/2025/01/29/nyregion/trump-criminal-convi‌ction-appeal.‌ht‌ml.Show More brought four prosecutions against him.3 3.Lawfare has helpfully compiled a page that links to all the documents in the Trump prosecutions. See The Trump Trials, Lawfare, https://www.lawfaremedia.org/current-project‌s/the-trump-trials [https://perma.cc/3CUL-QWUF] (last visited Oct. 27, 2024). Trump has been prosecuted in the Southern District of Florida; the District of Columbia; Fulton County, Georgia; and New York City. See, e.g., Indictment at 28, 34, 36–40, United States v. Trump, No. 23-cr-80101 (S.D. Fla. June 8, 2023) [hereinafter Florida Indictment]; Indictment at 3, 43–45, United States v. Trump, No. 23-cr-00257 (D.D.C. Aug. 1, 2023) [hereinafter D.C. Indictment]; Indictment at 13, 74, 76–81, 86–88, 95–96, Georgia v. Trump, No. 23SC188947 (Ga. Super. Ct. Fulton Cnty. Aug. 14, 2023) [hereinafter Georgia Indictment]; Indictment at 1–14, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. Apr. 4, 2023) [hereinafter New York Indictment].Show More The New York prosecution relates to the supposed falsification of business records.4 4.New York Indictment, supra note 3, at 1–2.Show More The Florida prosecution, which was dropped after Trump won the 2024 election, alleged that Trump illegally retained and concealed federal records.5 5.Florida Indictment, supra note 3, at 2–4; see Alanna Durkin Richer, Eric Tucker & Chris Megerian, Special Counsel Moves to Abandon Election Interference and Classified Documents Cases Against Trump, AP News (Nov. 25, 2024, 5:56 PM), https://apnews.com/‌a‌rticle/trump-capitol-riot-justice-department-jack-smith-d6172cf98d8e03e099571c90826745‌6c [https://perma.cc/FDD5-XQWD].Show More The Georgia prosecution, which is indefinitely paused, and Washington, D.C. prosecution, also dropped after the 2024 election, rested on acts that occurred during Donald Trump’s first term.6 6.Georgia Indictment, supra note 3, at 14–19; D.C. Indictment, supra note 3, at 1–2; Hakim, supra note 2; Richer et al., supra note 5.Show More

These prosecutions foregrounded a vital separation of powers question that had yet to receive its due: When, if ever, may an apparently constitutionally authorized act form the actus reus of a criminal prosecution? For example, could the direction of Justice Department officials, conversations with a Vice President, and (supposedly) official tweets give rise to a prosecution and a guilty verdict?7 7.Trump v. United States, 144 S. Ct. 2312, 2324, 2339 (2024).Show More Could a military order to kill a rival result in jail time (or worse) for an ex-President?8 8.Id. at 2376 (Jackson, J., dissenting).Show More These are profound questions about the nature of our government.

In Trump v. United States, the Supreme Court supplied some answers.9 9.Id. at 2347 (majority opinion).Show More With the entire nation watching, the Court displayed little timidity. It held that the President had absolute immunity from prosecution for certain “core” constitutional actions and at least presumptive immunity for all other official acts, whether constitutional or statutory.10 10.Id.Show More Given the Court’s consistently broad conception of the President’s official acts,11 11.See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (“In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”).Show More on display again in Trump,12 12.Trump, 144 S. Ct. at 2329–30.Show More this was a bestowal of a capacious immunity. From the penumbras of Article II, the Court conjured up a vast aegis.

The breadth was intentional, for the Court sought to safeguard what it saw as a besieged presidency. Chief executives were meant to be “energetic,” “vigorous,” “bold,” “unhesitating,” and “fearless[],” said the Court.13 13.Id. at 2329 (quoting The Federalist No. 70, at 471–72 (Alexander Hamilton) (Jacob Ernest Cooke ed., 1961)); id. at 2331 (quoting Fitzgerald, 457 U.S. at 745); id. at 2346.Show More But if their bold actions triggered “routine[]” criminal cases, there would be an unremitting “pall of potential prosecution”14 14.Id. at 2331 (quoting McDonnell v. United States, 579 U.S. 550, 575 (2016)).Show More and beleaguered presidents would not execute their office “fearlessly and fairly.”15 15.Id.Show More The Framers “did not envision such counterproductive burdens on the” executive they wrought.16 16.Id.Show More Given what the Framers sought, the Court would not countenance routine prosecutions that “would dampen the ardor of all but the most resolute.”17 17.Id. at 2344 (quoting Fitzgerald, 457 U.S. at 753 n.32).Show More Further, immunity must be decided before trial to cut off “the possibility of an extended [and potentially unwarranted] proceeding,” for otherwise a President would be “unduly cautious.”18 18.Id. (quoting Fitzgerald, 457 U.S. at 752 n.32).Show More Hence within the Constitution, the Court belatedly discovered substantial bulwarks against criminal liability and prosecution.

The Court’s opinion approaches adjudication by adjectives. For older Americans, the plethora of heroic modifiers might recall Captain James T. Kirk, who “boldly” went “where no man has gone before” with the Starship Enterprise.19 19.See Andrew Delahunty & Sheila Dignen, A Dictionary of Reference and Allusion 52 (3d ed. 2012).Show More For a younger generation, maybe they summon in the mind’s eye a Katniss Everdeen.20 20.See Katniss Everdeen, Hunger Games Through the Ages Wiki, https://hungergamesthrou‌ghtheages.fandom.com/wiki/Katniss_Everdeen [https://perma.cc/9VY3-4RYM] (last visited Oct. 27, 2024) (claiming that Everdeen is “very strong and bold” and that “[s]he doesn’t take crap from anybody”).Show More Kirk and Everdeen were bold and energetic. Above all, they were fearless.

Somewhat ironically, the decision’s exaltation of a fearless President provoked great fear among three dissenting Justices21 21.See Trump, 142 S. Ct. at 2361 (Sotomayor, J., dissenting) (“Today’s Court . . . has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts. . . . Under [the majority’s] rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.”); id. at 2368 (“The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of ‘conclusive and preclusive’ powers that the Court previously has recognized.”); see also id. at 2383 (Jackson, J., dissenting) (arguing that the Court has “senseless[ly]” assumed “risks” that “are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms”).Show More and, if one reads between the lines, more than a little trepidation in a concurring Justice.22 22.Id. at 2352 (Barrett, J., concurring in part) (“Properly conceived, the President’s constitutional protection from prosecution is narrow. The Court leaves open the possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance. I would have answered it now.” (citation omitted)).Show More The decision has had repercussions for the ongoing prosecutions.23 23.For instance, the defense has cited the Supreme Court’s opinion as a basis for throwing out the verdict in the New York case. See President Donald J. Trump’s Post-Trial Presidential Immunity Motion at 1, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. July 10, 2024).Show More Beyond courtrooms, the decision has provoked alarm,24 24.See, e.g., Akhil Reed Amar, Something Has Gone Deeply Wrong at the Supreme Court, The Atlantic (July 2, 2024), https://www.theatlantic.com/politics/archive/2024/07/trump-v-un‌ited-states-opinion-chief-roberts/678877/ (arguing that the Court’s opinion “turns the Constitution’s text and structure inside out and upside down, saying things that are flatly contradicted by the document’s unambiguous letter and obvious spirit”).Show More especially because immunity might embolden future presidents to act lawlessly.25 25.See, e.g., David Cole & Brett Max Kaufman, Supreme Court Grants Trump, Future Presidents a Blank Check to Break the Law, ACLU (July 3, 2024), https://www.aclu.org/news/‌civil-liberties/supreme-court-grants-trump-future-presidents-a-blank-check-to-break-the-law [https://perma.cc/PVX2-PXMZ]; Joshua Barajas & Erica R. Hendry, What Does the Supreme Court Immunity Ruling Mean for Trump? 6 Questions Answered, PBS (July 1, 2024, 5:01 PM), https://www.pbs.org/newshour/politics/what-does-the-supreme-court-ruling-mean‌-for-trump-6-questions-answered [https://perma.cc/6R2Y-PUJ6]; Nia Prater, Did the Supreme Court Kill Every Case Against Trump?, N.Y. Mag. (July 8, 2024), https://nymag.‌co‌m/intelligencer/article/did-the-supreme-court-kill-every-case-against-trump.html [https://per‌ma.cc/XE49-7C6D]; Michael Waldman, The Supreme Court Gives the President the Power of a King, Brennan Ctr. for Just. (July 1, 2024), https://www.brennanc‌enter.org‌/our-work/ana‌lysis-opinion/supreme-court-gives-president-power-king [https://perma.cc/5N‌SL-CY3B]; Lawrence Hurley, ‘Five Alarm Fire’: Supreme Court Immunity Ruling Raises Fears About Future Lawless Presidents, NBC News (July 1, 2024, 4:57 PM), https://www.nbcnews.com/p‌olitics/supreme-court/supreme-court-immunity-ruling-raises-fears-future-lawless‌-presidents-rcna159827 [https://perma.cc/2UCV-BBZ5].Show More

The adulation, the fury, and the fear that Donald Trump evokes often pervert our judgment and “the better angels of our nature.”26 26.Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Political Writings and Speeches 115, 123 (Terence Ball ed., 2013).Show More Nonetheless, this is an opportune moment to consider the question of presidential immunity, as it will arise again in the future. Though it might seem as if the Court has said all that needs to be said, occasionally the Court announces a test and makes a course correction, as it recently did in Rahimi.27 27.Compare N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131 (2022) (“The test that we . . . apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”), with United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024) (“As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”).Show More Infrequently, it quickly reverses itself.28 28.E.g., Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940), overruled by W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).Show More

As we contemplate these matters, we should consider the other branches. Do their officials also have immunity for their official acts to foster energy, vigor, and boldness? One might wonder whether federal judges have (or should have) criminal immunity for their official acts, say, a judgment alleged to be corrupt. Representatives and Senators might claim official immunity for allegedly crooked discussions with constituents or supposedly corrupt votes on the floor. It might seem obvious that the Court’s opinion applies only to the President. But in the Nixon tapes case, the Court said that all three branches have an evidentiary privilege rooted in the separation of powers.29 29.United States v. Nixon, 418 U.S. 683, 705–06 (1974) (“Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.” (footnote omitted)).Show More If the separation of powers creates prosecutorial immunity for presidents, as the Court signaled in Trump,30 30.Trump v. United States, 144 S. Ct. 2312, 2331 (2024) (“[W]e conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”).Show More perhaps that immunity extends to the other branches.

In thinking about these questions, the Court focused on “core constitutional powers” versus “official acts,” a distinction that the Constitution never draws and that is elusive.31 31.Id. at 2327. Every constitutional officer engages in at least two sorts of acts, official and personal, with the latter unrelated to the constitutional office. Though there are many Supreme Court cases discussing “official acts,” the dividing line between the two is not always apparent. For instance, is an officer heading to her office engaged in official acts or personal acts? This Article does not attempt to answer such questions, for even as the categories are uncertain, existing doctrine requires some such division. See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (discovering presidential immunity from damages suits for official acts that extend to the “outer perimeter” of presidential responsibilities); Clinton v. Jones, 520 U.S. 681, 692 (1997) (explaining that immunity from damages actions did not extend to suits seeking damages out of President’s personal, private conduct).Furthermore, within the category of official acts, there are at least two subcategories: constitutional acts and statutory acts. Constitutional acts encompass actions grounded in constitutional grants of power, such as the act of vetoing a bill or pardoning a felon. Statutory acts consist of actions that trace back to ordinary federal statutes, such as granting a patent pursuant to a law.Any constitutional immunity from criminal liability attaches only to the presidency’s constitutional powers. Hence the constitutional immunity will broaden (or narrow) depending upon the scope of the presidency’s constitutional powers, the extent of which is much contested.Show More Further, it spoke of “immunity” and never properly considered whether the supposed immunity could be overcome or defeased. In particular, the Court failed to address the scope of Congress’s powers, instead choosing to focus on the presidency and its needs. Most tellingly, the Court never cited the Necessary and Proper Clause or any other Article I authority. But in a case about the separation of powers, the scope of congressional powers ought to matter.

A more profitable approach is to consider four questions, each of which considers all three branches. First, are the Constitution’s conspicuous grants of narrow privileges and immunities illustrative of a broader, if implicit, set of privileges and immunities? Second, what limits, if any, does the Constitution impose on Congress’s ability to criminalize constitutional acts, by the President or otherwise? By “constitutional acts,” I mean acts that are apparently constitutionally authorized, as opposed to statutorily authorized. Third, should we read the Constitution as granting an implicit immunity for the statutorily authorized acts of constitutional actors? Lastly, when should we read generic criminal law as applying to the official acts of constitutional actors, for example, judges, presidents, and senators?

The Constitution’s text, structure, and early history suggest a different set of conclusions than the ones the Court settled upon. First, save for a guaranteed salary, the presidency has no other privileges or immunities. The other branches likewise have their limited and enumerated privileges and immunities. If there are to be additional safeguards, Congress must create them via the Necessary and Proper Clause.32 32.Ian Ayres and I have encouraged Congress to adopt one novel structural protection: the Prosecutor Jury. Our innovation would have Congress enact a law that when prosecutors, state or federal, wish to prosecute certain high-level officials or candidates for high-level offices, they must secure the consent of a jury composed of former U.S. Attorneys. The Prosecutor Jury would be a bipartisan, balanced panel of ten U.S. Attorneys appointed by Democratic Presidents and ten U.S. Attorneys appointed by Republican Presidents. If two-thirds agree, i.e., fourteen, then the prosecution can go forward. If fewer sanction the prosecution, the case cannot go to trial. This filtration mechanism is meant to counter the perception, and the reality, that prosecutors might prosecute political rivals for selfish or partisan reasons. If a prosecutor bent on prosecuting a cabinet secretary or a federal judge can get at least four individuals associated with the opposition party to approve a prosecution, the public will be able to conclude that the prosecution has some merit and perhaps does not involve the misuse of prosecutorial resources in the pursuit of partisan or personal ends. For a comprehensive discussion of this proposal, see generally Ian Ayres & Saikrishna Bangalore Prakash, A Bipartisan Approach to Political Prosecutions, 16 J. Legal Analysis 140 (2024). Our proposal has the distinct advantage that it allows Congress to flexibly expand or narrow protections as circumstances warrant.Show More Sometimes exceptionally necessary, proper, and indispensable means—like funds, departments, officers, and buildings—are left to the judgment of Congress. That is no less true for official immunity, including presidential immunity from prosecution. Second, any other constitutional protections for the three branches arise from the absence of congressional power to criminalize certain acts. This is not an “immunity”—an exemption from the law—as much as the dearth of legislative power. Just as Congress could not make it a crime for a citizen to vote, it may not make it a crime for a President to veto a bill. And yet even though Congress cannot criminally sanction the mere exercise of a constitutional power, it may criminalize the corrupt or wrongful exercise of powers. The Necessary and Proper Clause, which authorizes Congress to criminalize bribery, treason, and other forms of corruption, also permits Congress to protect the separation of powers.33 33.For a brief discussion of Congress’s authority as it relates to the separation of powers, see Saikrishna Bangalore Prakash, Congress as Elephant, 104 Va. L. Rev. 797, 826–31 (2018).Show More For example, a President who issues a pardon to aid an enemy could be prosecuted for treason, or so I argue. Third, despite what the Court says, the Constitution does not confer any immunity for presidential acts authorized by statute. There is no reason to think that the Constitution dictates that, when Congress grants authority to a constitutional actor, criminal immunity must accompany the statutory grant. Fourth, whatever one thinks of the above arguments, there are reasons to reject the notion that in enacting generic criminal laws, Congress meant to criminalize the official acts of constitutional actors, including the President. The Court ignored this basic question of statutory interpretation.

In sum, my framework is one of (1) narrow constitutional protections for constitutional officers, (2) significant congressional power to grant additional privileges or immunities, (3) meaningful legislative power to sanction wrongful constitutional acts, (4) no constitutional immunity for grants of statutory authority, and (5) a reluctance to read generic statutes as if they regulated the official acts of constitutional officers.

Part I briefly discusses and criticizes Trump v. United States. The Court’s treatment was unavoidably rushed. This hasty posture made the majority opinion ill-considered in several respects, failing as it does to grapple with difficult questions of first impression.

Part II considers the Court’s case for an executive immunity from prosecution. The Court’s arguments from the Founding, constitutional structure, and case law are unpersuasive. Indeed, many of these considerations cut against the Court’s discovery of immunity.

Part III argues that presidents have a narrow protection from federal statutes that criminalize uses of the Executive’s constitutional powers. This protection arises because of the absence of legislative power to punish mere uses of executive powers. And yet, Congress retains considerable power to protect the Constitution. Via the Necessary and Proper Clause, Congress can (a) criminalize corrupt exercises of presidential, legislative, and judicial power; (b) penalize executive violations of the separation of powers, and (c) punish the desecration and flouting of congressional laws. Hence, while Congress cannot make it a crime to “grant a pardon,” a law more narrowly targeted at the “grant of corrupt pardons” would be necessary and proper to implement the Constitution.

Part IV considers the question of statutory acts. The Constitution does not provide that when Congress grants authority to a constitutional actor, that conferral comes with implied immunity. To hold that the Constitution dictates that every grant of statutory authority must come freighted with some immunity from prosecution is a bridge too far.

Part V shifts to statutory interpretation, arguing that prosecutors and courts should be loath to read generic criminal statutes as if they applied to constitutional acts. Legislators fashion generally applicable criminal laws with the public in mind, not presidents, members of Congress, and judges. This focus ought to matter in discerning the reach of such laws. Relatedly, it seems unlikely that legislators would impinge upon presidential or judicial action via generic criminal laws because it is doubtful that they would hide an elephant—regulation of a President’s or judge’s official acts—in a mousehole of a generic criminal law.34 34.Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (explaining that respondents could not prevail given their failure to show a clear “textual commitment of authority to the EPA,” since Congress does not “hide elephants in mouseholes”).Show More Finally, we have good reason to eschew reading such laws as if they applied to constitutional deeds because doing so raises difficult constitutional questions.

Although the Article’s focus is on crime, the conclusions apply to non-penal measures. If I am right that Congress can attach criminal sanctions to a judge’s official, but corrupt, acts, it can impose lesser burdens, like civil fines. The same logic would apply to legislators and presidents.

Several caveats are necessary. This Article is not about Donald Trump. Hence, it will not address whether he committed any crimes. It focuses on constitutional explication, addressing knotty issues that show no signs of going away. Indeed, they have always been with us, lurking in the background. Nor will this Article address whether sitting presidents may be prosecuted.35 35.For an argument that a sitting President can be prosecuted, see Saikrishna Bangalore Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 60 (2021) [hereinafter Prakash, Prosecuting and Punishing Our Presidents] (arguing that a sitting President may be “arrested, indicted, prosecuted, and punished”). The Trump Court cited the Department of Justice’s conclusion that a sitting President could not be prosecuted. See Trump, 144 S. Ct. at 2332 n.2 (citing Brief for United States at 9, Trump, 144 S. Ct. 2312 (No. 23-939)). Given the Court’s stance toward immunity, it seems quite likely that it would agree with the Department of Justice about prosecuting a sitting president.Show More As this Article goes to print, the question of temporary immunity for sitting chief executives may become a live issue. Trump’s reascension to the presidency raises the prospect that state prosecutors may attempt to continue their prosecutions. Finally, this Article is but a part of a vital, long overdue conversation,36 36.I have participated in this and adjacent conversations. See Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 Minn. L. Rev. 1143, 1145 (1999); Saikrishna Bangalore Prakash, “Not a Single Privilege Is Annexed to His Character”: Necessary and Proper Executive Privileges and Immunities, 2020 Sup. Ct. Rev. 229, 232; Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 60. The principal Trump dissent cited the latter article. See Trump, 144 S. Ct. at 2358 (Sotomayor, J., dissenting) (citing Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 69).Show More one that the Court helped further and one where the Court may yet change its mind. Or so I hope.

  1.  See, e.g., John Cassidy, The Mueller Report Is Clear: Donald Trump Repeatedly Tried to Obstruct Justice, New Yorker (Apr. 18, 2019), https://www.newyorker.com/news/our-column‌ists/the-mueller-report-couldnt-be-more-clear-donald-trump-repeatedly-tried-to-obstruct-just‌ice; Matt Ford, Did President Trump Obstruct Justice?, The Atlantic (May 16, 2017), https://www.theatlantic.com/politics/archive/2017/05/trump-comey-obstruction-justice/526‌9‌53; Ryan Goodman, Did Trump Obstruct Justice?, Politico Mag. (May 17, 2017), https://‌www.politico.com/magazine/story/2017/05/17/did-trump-obstruct-justice-215147 [https://pe‌rma.cc/S9V5-C9AL]; Samuel Estreicher & Christopher Owens, Did President Trump Commit the Federal Crime of Bribery?, Verdict (Dec. 3, 2019), https://verdict.justia.com/2019/12/03/‌did-president-trump-commit-the-federal-crime-of-bribery [https://perma.cc/‌CT3S-AG3T]; Bob Bauer, The Failures of the Mueller Report’s Campaign Finance Analysis, Just Sec. (May 3, 2019), https://www.justsecurity.org/63920/the-failures-of-the-mueller-report-campai‌gn-finance-analysis/ [https://perma.cc/T8SQ-2BKG]. ↑
  2.  Jack Smith was the prosecutor in both the Florida and Washington, D.C., cases; Fani Willis prosecuted the Fulton County, Georgia, case; and Alvin Bragg prosecuted the case in New York. Donald Trump’s Criminal Cases, in One Place, CNN (Jan. 10, 2025), https://www.cn‌n‌.com/interactive/2023/07/politics/trump-indictments-criminal-cases/ [https://perma.cc/CW‌75‌-L6N2]. Trump’s Georgia case is indefinitely paused while the state supreme court considers whether the prosecutor should be disqualified, and the President is currently appealing his New York criminal conviction. See Danny Hakim, Atlanta D.A. Asks Georgia Court to Review Decision Kicking Her Off Trump Case, N.Y. Times (Jan. 8, 2025), https://www.ny‌ti‌mes.com/2025/01/08/us/trump-fani-willis-appeal-georgia.html; Jonah E. Bromwich, As Establishment Warms to Trump, Elite Law Firm Takes on His Appeal, N.Y. Times (Jan. 29, 2025), https://www.nytimes.com/2025/01/29/nyregion/trump-criminal-convi‌ction-appeal.‌ht‌ml. ↑
  3.  Lawfare has helpfully compiled a page that links to all the documents in the Trump prosecutions. See The Trump Trials, Lawfare, https://www.lawfaremedia.org/current-project‌s/the-trump-trials [https://perma.cc/3CUL-QWUF] (last visited Oct. 27, 2024). Trump has been prosecuted in the Southern District of Florida; the District of Columbia; Fulton County, Georgia; and New York City. See, e.g., Indictment at 28, 34, 36–40, United States v. Trump, No. 23-cr-80101 (S.D. Fla. June 8, 2023) [hereinafter Florida Indictment]; Indictment at 3, 43–45, United States v. Trump, No. 23-cr-00257 (D.D.C. Aug. 1, 2023) [hereinafter D.C. Indictment]; Indictment at 13, 74, 76–81, 86–88, 95–96, Georgia v. Trump, No. 23SC188947 (Ga. Super. Ct. Fulton Cnty. Aug. 14, 2023) [hereinafter Georgia Indictment]; Indictment at 1–14, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. Apr. 4, 2023) [hereinafter New York Indictment]. ↑
  4.  New York Indictment, supra note 3, at 1–2. ↑
  5.  Florida Indictment, supra note 3, at 2–4; see Alanna Durkin Richer, Eric Tucker & Chris Megerian, Special Counsel Moves to Abandon Election Interference and Classified Documents Cases Against Trump, AP News (Nov. 25, 2024, 5:56 PM), https://apnews.com/‌a‌rticle/trump-capitol-riot-justice-department-jack-smith-d6172cf98d8e03e099571c90826745‌6c [https://perma.cc/FDD5-XQWD]. ↑
  6.  Georgia Indictment, supra note 3, at 14–19; D.C. Indictment, supra note 3, at 1–2; Hakim, supra note 2; Richer et al., supra note 5. ↑
  7.  Trump v. United States, 144 S. Ct. 2312, 2324, 2339 (2024). ↑
  8.  Id. at 2376 (Jackson, J., dissenting). ↑
  9.  Id. at 2347 (majority opinion). ↑
  10.  Id. ↑
  11.  See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (“In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”). ↑
  12.  Trump, 144 S. Ct. at 2329–30. ↑
  13.  Id. at 2329 (quoting The Federalist No. 70, at 471–72 (Alexander Hamilton) (Jacob Ernest Cooke ed., 1961)); id. at 2331 (quoting Fitzgerald, 457 U.S. at 745); id. at 2346. ↑
  14.  Id. at 2331 (quoting McDonnell v. United States, 579 U.S. 550, 575 (2016)). ↑
  15.  Id. ↑
  16.  Id. ↑
  17.  Id. at 2344 (quoting Fitzgerald, 457 U.S. at 753 n.32). ↑
  18.  Id. (quoting Fitzgerald, 457 U.S. at 752 n.32). ↑
  19.  See Andrew Delahunty & Sheila Dignen, A Dictionary of Reference and Allusion 52 (3d ed. 2012). ↑
  20.  See Katniss Everdeen, Hunger Games Through the Ages Wiki, https://hungergamesthrou‌ghtheages.fandom.com/wiki/Katniss_Everdeen [https://perma.cc/9VY3-4RYM] (last visited Oct. 27, 2024) (claiming that Everdeen is “very strong and bold” and that “[s]he doesn’t take crap from anybody”). ↑
  21.  See Trump, 142 S. Ct. at 2361 (Sotomayor, J., dissenting) (“Today’s Court . . . has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts. . . . Under [the majority’s] rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.”); id. at 2368 (“The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of ‘conclusive and preclusive’ powers that the Court previously has recognized.”); see also id. at 2383 (Jackson, J., dissenting) (arguing that the Court has “senseless[ly]” assumed “risks” that “are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms”). ↑
  22.  Id. at 2352 (Barrett, J., concurring in part) (“Properly conceived, the President’s constitutional protection from prosecution is narrow. The Court leaves open the possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance. I would have answered it now.” (citation omitted)). ↑
  23.  For instance, the defense has cited the Supreme Court’s opinion as a basis for throwing out the verdict in the New York case. See President Donald J. Trump’s Post-Trial Presidential Immunity Motion at 1, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. July 10, 2024). ↑
  24.  See, e.g., Akhil Reed Amar, Something Has Gone Deeply Wrong at the Supreme Court, The Atlantic (July 2, 2024), https://www.theatlantic.com/politics/archive/2024/07/trump-v-un‌ited-states-opinion-chief-roberts/678877/ (arguing that the Court’s opinion “turns the Constitution’s text and structure inside out and upside down, saying things that are flatly contradicted by the document’s unambiguous letter and obvious spirit”). ↑
  25.  See, e.g., David Cole & Brett Max Kaufman, Supreme Court Grants Trump, Future Presidents a Blank Check to Break the Law, ACLU (July 3, 2024), https://www.aclu.org/news/‌civil-liberties/supreme-court-grants-trump-future-presidents-a-blank-check-to-break-the-law [https://perma.cc/PVX2-PXMZ]; Joshua Barajas & Erica R. Hendry, What Does the Supreme Court Immunity Ruling Mean for Trump? 6 Questions Answered, PBS (July 1, 2024, 5:01 PM), https://www.pbs.org/newshour/politics/what-does-the-supreme-court-ruling-mean‌-for-trump-6-questions-answered [https://perma.cc/6R2Y-PUJ6]; Nia Prater, Did the Supreme Court Kill Every Case Against Trump?, N.Y. Mag. (July 8, 2024), https://nymag.‌co‌m/intelligencer/article/did-the-supreme-court-kill-every-case-against-trump.html [https://per‌ma.cc/XE49-7C6D]; Michael Waldman, The Supreme Court Gives the President the Power of a King, Brennan Ctr. for Just. (July 1, 2024), https://www.brennanc‌enter.org‌/our-work/ana‌lysis-opinion/supreme-court-gives-president-power-king [https://perma.cc/5N‌SL-CY3B]; Lawrence Hurley, ‘Five Alarm Fire’: Supreme Court Immunity Ruling Raises Fears About Future Lawless Presidents, NBC News (July 1, 2024, 4:57 PM), https://www.nbcnews.com/p‌olitics/supreme-court/supreme-court-immunity-ruling-raises-fears-future-lawless‌-presidents-rcna159827 [https://perma.cc/2UCV-BBZ5]. ↑
  26.  Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Political Writings and Speeches 115, 123 (Terence Ball ed., 2013). ↑
  27.  Compare N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131 (2022) (“The test that we . . . apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”), with United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024) (“As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”). ↑
  28.  E.g., Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940), overruled by W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). ↑
  29.  United States v. Nixon, 418 U.S. 683, 705–06 (1974) (“Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.” (footnote omitted)). ↑
  30.  Trump v. United States, 144 S. Ct. 2312, 2331 (2024) (“[W]e conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”). ↑
  31.  Id. at 2327. Every constitutional officer engages in at least two sorts of acts, official and personal, with the latter unrelated to the constitutional office. Though there are many Supreme Court cases discussing “official acts,” the dividing line between the two is not always apparent. For instance, is an officer heading to her office engaged in official acts or personal acts? This Article does not attempt to answer such questions, for even as the categories are uncertain, existing doctrine requires some such division. See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (discovering presidential immunity from damages suits for official acts that extend to the “outer perimeter” of presidential responsibilities); Clinton v. Jones, 520 U.S. 681, 692 (1997) (explaining that immunity from damages actions did not extend to suits seeking damages out of President’s personal, private conduct).

    Furthermore, within the category of official acts, there are at least two subcategories: constitutional acts and statutory acts. Constitutional acts encompass actions grounded in constitutional grants of power, such as the act of vetoing a bill or pardoning a felon. Statutory acts consist of actions that trace back to ordinary federal statutes, such as granting a patent pursuant to a law.

    Any constitutional immunity from criminal liability attaches only to the presidency’s constitutional powers. Hence the constitutional immunity will broaden (or narrow) depending upon the scope of the presidency’s constitutional powers, the extent of which is much contested. ↑

  32.  Ian Ayres and I have encouraged Congress to adopt one novel structural protection: the Prosecutor Jury. Our innovation would have Congress enact a law that when prosecutors, state or federal, wish to prosecute certain high-level officials or candidates for high-level offices, they must secure the consent of a jury composed of former U.S. Attorneys. The Prosecutor Jury would be a bipartisan, balanced panel of ten U.S. Attorneys appointed by Democratic Presidents and ten U.S. Attorneys appointed by Republican Presidents. If two-thirds agree, i.e., fourteen, then the prosecution can go forward. If fewer sanction the prosecution, the case cannot go to trial. This filtration mechanism is meant to counter the perception, and the reality, that prosecutors might prosecute political rivals for selfish or partisan reasons. If a prosecutor bent on prosecuting a cabinet secretary or a federal judge can get at least four individuals associated with the opposition party to approve a prosecution, the public will be able to conclude that the prosecution has some merit and perhaps does not involve the misuse of prosecutorial resources in the pursuit of partisan or personal ends. For a comprehensive discussion of this proposal, see generally Ian Ayres & Saikrishna Bangalore Prakash, A Bipartisan Approach to Political Prosecutions, 16 J. Legal Analysis 140 (2024). Our proposal has the distinct advantage that it allows Congress to flexibly expand or narrow protections as circumstances warrant. ↑
  33.  For a brief discussion of Congress’s authority as it relates to the separation of powers, see Saikrishna Bangalore Prakash, Congress as Elephant, 104 Va. L. Rev. 797, 826–31 (2018). ↑
  34.  Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (explaining that respondents could not prevail given their failure to show a clear “textual commitment of authority to the EPA,” since Congress does not “hide elephants in mouseholes”). ↑
  35.  For an argument that a sitting President can be prosecuted, see Saikrishna Bangalore Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 60 (2021) [hereinafter Prakash, Prosecuting and Punishing Our Presidents] (arguing that a sitting President may be “arrested, indicted, prosecuted, and punished”). The Trump Court cited the Department of Justice’s conclusion that a sitting President could not be prosecuted. See Trump, 144 S. Ct. at 2332 n.2 (citing Brief for United States at 9, Trump, 144 S. Ct. 2312 (No. 23-939)). Given the Court’s stance toward immunity, it seems quite likely that it would agree with the Department of Justice about prosecuting a sitting president. ↑

  36.  I have participated in this and adjacent conversations. See Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 Minn. L. Rev. 1143, 1145 (1999); Saikrishna Bangalore Prakash, “Not a Single Privilege Is Annexed to His Character”: Necessary and Proper Executive Privileges and Immunities, 2020 Sup. Ct. Rev. 229, 232; Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 60. The principal Trump dissent cited the latter article. See Trump, 144 S. Ct. at 2358 (Sotomayor, J., dissenting) (citing Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 69). ↑

Sovereigns’ Interests and Double Jeopardy

In the 2019 case of Gamble v. United States, the Supreme Court upheld the dual sovereignty doctrine, reiterating that the Double Jeopardy Clause only bars successive or concurrent prosecutions by the same sovereign. When, therefore, a criminal defendant has violated the laws of two sovereigns by the same act, regardless of how similar those laws may be, no double jeopardy issue arises where both sovereigns prosecute the defendant independently. This Note argues that such an outcome is at odds with the Due Process Clause’s guarantee against double jeopardy and rests upon an excessively rigid formulation of prior case law. The Supreme Court’s double jeopardy jurisprudence actually suggests that the dual sovereignty doctrine should only be applied in instances where each sovereign possesses a distinct interest that they alone can vindicate. This Note advances a primary-purposes test to determine when separate or concurrent prosecutions are appropriate: a second sovereign should only be permitted to prosecute a defendant for the same crime if the primary purpose of that prosecution is to vindicate a sovereign interest that the first sovereign’s prosecution would leave substantially unvindicated. Applying this test would also ease the Gamble Court’s worry that modifying the doctrine could interfere with the balance of domestic and international prosecutions. Because the United States and a foreign sovereign, as completely independent entities, could always decline to treat the exercise of the other’s jurisdiction as exclusive, each sovereign would retain an interest in prosecuting a defendant that the other sovereign could never substantially vindicate.

Introduction

In the 1969 case of Benton v. Maryland, the Supreme Court of the United States held that the Fifth Amendment’s guarantee against double jeopardy, that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb,”1 1.U.S. Const. amend. V.Show More formed a fundamental right that was incorporated by the Fourteenth Amendment’s Due Process Clause against the states.2 2.395 U.S. 784, 794 (1969) (“[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.”).Show More In so doing, the Supreme Court reversed its earlier decision in Palko v. Connecticut, which had held that the Double Jeopardy Clause was not incorporated against the states, inasmuch as the protection was not “of the very essence of a scheme of ordered liberty.”3 3.302 U.S. 319, 325 (1937).Show More In spite of Benton, however, the Supreme Court has regularly upheld one glaring exception to the Double Jeopardy Clause: the dual sovereignty doctrine.

Under the dual sovereignty doctrine, a defendant may be prosecuted twice for the same crime if separate sovereigns are involved in bringing each prosecution. Although the circumstances under which two entities constitute separate sovereigns may not be clear-cut as a philosophical matter, for purposes of dual sovereignty, the Supreme Court has made clear that the states and the federal government are considered distinct sovereigns,4 4.See, e.g., Bartkus v. Illinois, 359 U.S. 121, 132–34 (1959) (finding no double jeopardy bar to successive state and federal prosecutions as a result of the “two-sovereignty principle”); Heath v. Alabama, 474 U.S. 82, 89 (1985) (“The States are no less sovereign with respect to each other than they are with respect to the Federal Government.”).Show More as are Native American tribes.5 5.United States v. Lara, 541 U.S. 193, 210 (2004) (holding that because the “inherent tribal authority[] to prosecute nonmember Indians” does “not amount to an exercise of federal power,” tribes are acting as “separate sovereign[s]” for Fifth Amendment purposes during such prosecutions).Show More Territories such as Puerto Rico, however, are not.6 6.Puerto Rico v. Sanchez Valle, 579 U.S. 59, 78 (2016) (holding that “[b]ecause the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government . . . the Commonwealth and the United States are not separate sovereigns” for Fifth Amendment purposes).Show More A hypothetical defendant could thus be subject to all criminal jurisdictions within the United States, assuming that a jurisdictional hook connects the defendant’s conduct and each of the respective sovereigns. The possibility of these concurrent or subsequent prosecutions militates against a common-sense understanding of what the Double Jeopardy Clause would seem to require. Nevertheless, the Supreme Court has repeatedly upheld the constitutionality of the dual sovereignty doctrine, and it has done so most recently in the 2019 case of Gamble v. United States.7 7.139 S. Ct. 1960, 1979–80 (2019).Show More

This Note argues that the dual sovereignty doctrine, in its current formulation as expressed in Gamble, unconstitutionally infringes upon defendants’ due process rights. First, this Note argues that a close reading of the case law upon which the Gamble Court relies implies a more flexible construction of the dual sovereignty doctrine and that the doctrine should only come into play when separate prosecutions vindicate distinct sovereign interests. Moreover, the doctrine should be reinterpreted following both the ratification of the Fourteenth Amendment and the 1969 Benton decision incorporating the Double Jeopardy Clause through the Due Process Clause—something for which the Court has not properly accounted. Second, this Note examines an argument by the majority relating to prosecutions by international foreign sovereigns to demonstrate that the majority misunderstands the concept of sovereignty. The majority’s reinterpretation of the dual sovereignty doctrine should not ipso facto alter the effect that foreign criminal proceedings may have on domestic ones. Finally, this Note proposes a “primary-purposes” balancing test, which would protect defendants’ due process rights against double jeopardy while simultaneously carving out a constitutionally permissible space for instances where subsequent prosecution by another sovereign may remain legitimate and desirable. This Note conducts a substantial-interest analysis8 8.This term may be familiar from choice-of-law theory, as it describes an analytical method “in which courts identify those states with interests in a particular issue before the court and then determine which of the competing states should have its law applied to the issue. The court makes that determination by identifying the state with the greatest interest in the matter.” John Bernard Corr, Interest Analysis and Choice of Law: The Dubious Dominance of Domicile, 1983 Utah L. Rev. 651, 653 n.10. This Note advances a somewhat analogous argument in the Double Jeopardy context, namely: when two or more separate domestic sovereigns have jurisdiction over a matter, the sovereign whose interest is primarily at stake should proceed with the prosecution, and only when that sovereign, in its own proceeding, cannot substantially vindicate the interest of the other(s), should subsequent or concurrent prosecutions proceed without running afoul of the Double Jeopardy and Due Process Clauses. Otherwise, any resemblance between this Note’s use of this term here and its use in a choice-of-law context is only coincidental.Show More with respect to the dual sovereignty doctrine and proposes a test that would resolve the applicability of the doctrine with respect to both domestic and foreign sovereigns.9 9.The Ohio Northern University Law Review published a short piece on Gamble that briefly suggested the applicability of an interest-analysis and the possible use of a balancing test in resolving the constitutional problems associated with the dual sovereignty doctrine. Alexander S. Prillaman, Student Case Notes, Gamble v. United States, 46 Ohio N.U. L. Rev. 181, 192–93 (2020). This Note, however, analyzes in significantly greater detail the prior case law upon which Gamble relies, discusses the consequences of the incorporation of the Double Jeopardy Clause, and examines the effects of a possible modification of the dual sovereignty doctrine vis-à-vis foreign (international) sovereign proceedings both to flesh out the possibility of a balancing test and to ground the suggestion more firmly in the broader jurisprudential principles and normative desirability of such a test.Show More

  1.  U.S. Const. amend. V. ↑
  2.  395 U.S. 784, 794 (1969) (“[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.”). ↑
  3.  302 U.S. 319, 325 (1937). ↑
  4.  See, e.g., Bartkus v. Illinois, 359 U.S. 121, 132–34 (1959) (finding no double jeopardy bar to successive state and federal prosecutions as a result of the “two-sovereignty principle”); Heath v. Alabama, 474 U.S. 82, 89 (1985) (“The States are no less sovereign with respect to each other than they are with respect to the Federal Government.”). ↑
  5.  United States v. Lara, 541 U.S. 193, 210 (2004) (holding that because the “inherent tribal authority[] to prosecute nonmember Indians” does “not amount to an exercise of federal power,” tribes are acting as “separate sovereign[s]” for Fifth Amendment purposes during such prosecutions). ↑
  6.  Puerto Rico v. Sanchez Valle, 579 U.S. 59, 78 (2016) (holding that “[b]ecause the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government . . . the Commonwealth and the United States are not separate sovereigns” for Fifth Amendment purposes). ↑
  7.  139 S. Ct. 1960, 1979–80 (2019). ↑
  8.  This term may be familiar from choice-of-law theory, as it describes an analytical method “in which courts identify those states with interests in a particular issue before the court and then determine which of the competing states should have its law applied to the issue. The court makes that determination by identifying the state with the greatest interest in the matter.” John Bernard Corr, Interest Analysis and Choice of Law: The Dubious Dominance of Domicile, 1983 Utah L. Rev. 651, 653 n.10. This Note advances a somewhat analogous argument in the Double Jeopardy context, namely: when two or more separate domestic sovereigns have jurisdiction over a matter, the sovereign whose interest is primarily at stake should proceed with the prosecution, and only when that sovereign, in its own proceeding, cannot substantially vindicate the interest of the other(s), should subsequent or concurrent prosecutions proceed without running afoul of the Double Jeopardy and Due Process Clauses. Otherwise, any resemblance between this Note’s use of this term here and its use in a choice-of-law context is only coincidental. ↑

  9.  The Ohio Northern University Law Review published a short piece on Gamble that briefly suggested the applicability of an interest-analysis and the possible use of a balancing test in resolving the constitutional problems associated with the dual sovereignty doctrine. Alexander S. Prillaman, Student Case Notes, Gamble v. United States, 46 Ohio N.U. L. Rev. 181, 192–93 (2020). This Note, however, analyzes in significantly greater detail the prior case law upon which Gamble relies, discusses the consequences of the incorporation of the Double Jeopardy Clause, and examines the effects of a possible modification of the dual sovereignty doctrine vis-à-vis foreign (international) sovereign proceedings both to flesh out the possibility of a balancing test and to ground the suggestion more firmly in the broader jurisprudential principles and normative desirability of such a test. ↑

Diversity by Facially Neutral Means

The decision in Students for Fair Admissions v. President & Fellows of Harvard College (SFFA), invalidating the use of race in college admissions, reignites a pressing and critical question. Is the deliberate use of facially neutral means to achieve racial diversity constitutionally permissible? The problem is that current equal protection doctrine suggests conflicting answers to this question. On one hand, cases addressing the use of explicit racial classifications state clearly that the use of race is impermissible if diversity could be achieved by facially neutral means. These statements suggest that universities and others may adopt such means. On the other hand, when state actors adopt facially neutral policies that have a disparate negative impact on the basis of race or sex, these policies are impermissible if enacted specifically because they will have this effect. This part of the doctrine suggests that state actors may not adopt facially neutral means of achieving racial diversity if they do so in order to achieve this result.

This Article resolves that enduring puzzle. It does so by explaining that equal protection doctrine contains two distinct commitments: a prohibition on race-based differential treatment and a prohibition on governmental actors intending to harm. The claim that the combination of these commitments—the intent to select on the basis of race—is also forbidden rests on a mistake. Because these two doctrinal threads stem from different normative foundations, they cannot be combined. In addition, while intentions do matter within equal protection doctrine, that observation is overstated. It is only the intent to harm that is constitutionally relevant. Facially neutral policies aimed at increasing racial diversity lack an intent to harm and are therefore permissible.

Justice Kagan: So suppose that . . . there’s a 10 percent plan or something like that, and part of the justification is socioeconomic diversity and another part of the justification is we’ll also get more racial diversity in this manner. . . . Is that permissible?

Mr. Strawbridge: Well, like I said, it—it’s a different analysis when the . . . mechanism that’s chosen is not a racial classification itself, but I do think that this Court’s precedents—

Justice Kagan: Well, I guess the question is why—why is that true. A lot of our constitutional doctrine suggests that it’s not a different analysis. In other words, one way you can offend the Constitution is by using an impermissible classification. Another way you can offend the Constitution is by devising a proxy mechanism with the purpose of . . . achieving the same results that the impermissible classification would.

Mr. Strawbridge: Right.1 1.Transcript of Oral Argument at 13–14, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (No. 21-707).Show More

Introduction

The Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA),2 2.143 S. Ct. 2141 (2023).Show More striking down the use of race-based classifications in university admissions, sets up an important question.3 3.The use of race in admissions was invalidated because the interests allegedly served by student body diversity are too difficult to measure and because the means adopted to achieve these ends are inapt. Id. at 2166–67. Additionally, in the Court’s view, the policies at issue rely on racial stereotypes and harm those not preferred by the policies. Id. at 2168–70. Chief Justice Roberts’s opinion for the Court does not, however, explicitly overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and explicitly leaves open the question of whether the consideration of race is also impermissible in the context of admissions at the military academies. SFFA, 143 S. Ct. at 2166 n.4 (“This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”).Show More May universities adopt “facially neutral”4 4.The term “facially neutral” refers to a law or policy that does not explicitly classify on protected grounds.Show More selection policies that will predictably increase racial diversity if they do so because these policies are likely to have this result?5 5.The Court in SFFA considered both a constitutional claim and a statutory claim but viewed the prohibition on race discrimination contained in Title VI of the Civil Rights Act of 1964 as equivalent to the constitutional requirements of equal protection. For this reason, the result of the constitutional analysis will also have implications for non-state actors. See SFFA, 143 S. Ct. at 2156 n.2 (explaining that the Court would “evaluate Harvard’s admissions program under the standards of the Equal Protection Clause” because “discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI” (quoting Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003))).Show More Such policies might include admissions guarantees by a state university to the top ten percent of each high school senior class in the state, as Justice Kagan noted in the oral argument of the University of North Carolina case,6 6.See Transcript of Oral Argument at 13–14, SFFA, 143 S. Ct. 2141 (No. 21-707).Show More or “plus” factors for students who are first-generation college students, who attend under-resourced schools, or whose families are poor or are the descendants of enslaved people,7 7.See id. at 13, 43–45.Show More among others.

It may seem like the answer is an obvious “yes,” as Mr. Strawbridge, the lawyer for Students for Fair Admissions, initially suggested.8 8.Id. at 13. Mr. Strawbridge seems to equivocate in his answer to Justice Kagan’s question. He initially seems to say that such policies would be permissible but ultimately does say that if the university adopted the policy at least in part because it would increase diversity and would not have adopted it without this reason, then the facially neutral policy would be impermissible. Id. at 16 (“[I]f the only reason to do it is through the narrow lens of race and there is no other race-neutral justification for it that the government can come forward and demonstrate that would have led it to adopt that policy anyway, I think . . . that’s the only scenario where it would create problems under the Court’s precedent.”).Show More After all, in the affirmative action cases that predate the current decision, narrow tailoring was assessed by reference to whether race-neutral means of achieving diversity were available.9 9.See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n.6 (1986); Grutter v. Bollinger, 539 U.S. 306, 340 (2003) (“We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.”); id. at 342 (“Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.”).Show More Indeed, the Justices who dissented in those previous cases did so in part on the grounds that such alternatives were present, in their view.10 10.See, e.g., Fisher v. Univ. of Tex. at Austin (Fisher II), 579 U.S. 365, 426–27 (2016) (Alito, J., dissenting) (noting that if the University of Texas at Austin adopted race-neutral policies it could achieve diversity “without injecting race into the process”); Grutter, 539 U.S. at 394–95 (Kennedy, J., dissenting) (“Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. . . . Other programs do exist which will be more effective in bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.”); Gratz, 539 U.S. at 297 (Souter, J., dissenting) (“Drawing on admissions systems used at public universities in California, Florida, and Texas, the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan. . . . [T]here is nothing unconstitutional about such a practice . . . .”).Show More If the explicit use of race is not narrowly tailored to achieve the educational benefits of diversity when workable race-neutral means exist to achieve the same result, surely the deliberate use of such race-neutral means is constitutionally permissible.11 11.Judge Heytens makes precisely this argument in response to the claim that the deliberate use of race-neutral polices to increase racial diversity transforms the policy into one that is race-based. See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 891 (4th Cir. 2023) (Heytens, J., concurring) (emphasizing that “it would be quite the judicial bait-and-switch to say such race-neutral efforts are also presumptively unconstitutional” after spending “decades telling school officials they must consider race-neutral methods for ensuring a diverse student body before turning to race-conscious ones”), cert. denied, No. 23-170, 2024 WL 674659 (U.S. Feb. 20, 2024).Show More

And yet, scholars have long wondered about the constitutional permissibility of such policies.12 12.See, e.g., Brian T. Fitzpatrick, Can Michigan Universities Use Proxies for Race After the Ban on Racial Preferences?, 13 Mich. J. Race & L. 277, 283 (2007) (arguing that “antidiscrimination laws have been [and should be] interpreted to prohibit not only facial classifications, but also neutral classifications that were adopted to serve as proxies for the facially-prohibited one”); Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 496 (2003) (exploring the possibility that disparate impact liability mandated by Title VII may violate the constitutional guarantee of equal protection because that statute was adopted with the purpose of redressing racial inequality); Kim Forde-Mazrui, The Constitutional Implications of Race-Neutral Affirmative Action, 88 Geo. L.J. 2331, 2364–65, 2377 (2000) (arguing that race-neutral affirmative action may be unconstitutional if motivated by the same purposes as affirmative action that relies on racial classification). See generally Larry Alexander & Kevin Cole, Discrimination by Proxy, 14 Const. Comment. 453 (1997) (assuming that the deliberate use of a facially neutral trait to select for people with a protected trait violates the anti-discrimination principle and arguing that equal protection doctrine is internally conflicted).Show More To see the argument for this position, imagine a hypothetical case in which a university admissions program made minority race a minus rather than a plus. After being sued for race discrimination, the university stops using race explicitly in its admissions process. Instead, suppose it adopts a policy disfavoring people from particular zip codes. Further, suppose the university does so because race correlates with zip code, so the university can achieve the same result as it had by explicitly disfavoring people of particular races. If the deliberate use of zip codes to exclude Black students would be impermissible, then should the deliberate use of class rank to include Black students be treated similarly? It is precisely this logic that Justice Kagan referred to in her question to Mr. Strawbridge.

The argument for treating these hypothetical cases the same seems plausible for two reasons. First, when facially neutral policies disadvantage women or racial minorities, the Court evaluates these policies by reference to the reasons for which they were adopted. If the state chose the facially neutral policy “because of” its effect, then the policy is treated as if it contains an explicit classification.13 13.Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added) (requiring a showing that a defendant discriminated “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group” in order to impose liability). The Feeney Court upheld Massachusetts’s preference for veterans in civil service positions, despite the fact that the policy disproportionately excluded women, because the policy was not adopted in order to exclude women. Id. at 275. The clear implication of this holding is that had the policy been adopted in order to exclude women, it would be impermissible.Show More Second, when explicit classifications are used, the Court has treated the fact that the policy was well-motivated as legally insignificant, and has treated a benefit on the basis of race in the same manner as a burden.14 14.The Chief Justice emphasizes this fact in SFFA. See SFFA, 143 S. Ct. 2141, 2175 (2023) (critiquing the dissent by asserting that “[w]hile the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue”).Show More For example, the explicit use of race in higher education admissions must pass strict scrutiny even when the policy is adopted for benign or even laudable reasons.15 15.See id. at 2166; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298–99 (1978) (holding that whether a racial classification is used for benign purposes or invidious ones is not relevant and instead that classifications that “touch upon an individual’s race or ethnic background” all require the application of strict scrutiny).Show More Moreover, in SFFA, Chief Justice Roberts emphasized that university admissions is a “zero-sum” enterprise, and so, in his view, giving a plus to some applicants necessarily functions as a minus to others.16 16.SFFA, 143 S. Ct. at 2169 (“A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”).Show More According to the combined logic of these two features of the doctrine, the deliberate use of class rank to select for minority applicants would seem to be constitutionally impermissible.

The Court’s opinion in SFFA itself does not directly address the question of whether universities may use race-neutral means to achieve diversity.17 17.In another case, the Chief Justice has suggested that he would find such motivation suspect. See, for example, Chief Justice Roberts’s comment in Parents Involved,where he opined that “[r]acial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’” which suggests that he might find intending to select for people on the basis of race to also be a patently unconstitutional motivation. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 732 (2007).Show More However, Justice Kavanaugh, concurring, indicated that he would find it constitutional for a university to do so: “[G]overnments and universities still ‘can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race.’”18 18.SFFA, 143 S. Ct. at 2225 (Kavanaugh, J., concurring) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 526 (1989) (Scalia, J., concurring)).Show More And Justice Gorsuch noted that “Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices if it: (1) provided socioeconomically disadvantaged applicants just half of the tip it gives recruited athletes; and (2) eliminated tips for the children of donors, alumni, and faculty.”19 19.Id. at 2215 (Gorsuch, J., concurring).Show More The implication of this comment is that it would be permissible for Harvard to do so, even if it is motivated to adopt these policies to replicate the current racial composition of the class. Lastly, Justice Thomas, concurring, used language that suggests that he too would find the use of race-neutral policies to achieve a diverse student body permissible. He wrote: “Race-neutral policies may thus achieve the same benefits of racial harmony and equality without any of the burdens and strife generated by affirmative action policies.”20 20.Id. at 2206 (Thomas, J., concurring).Show More That said, none of these statements specifically address whether race-neutral policies deliberately adopted to achieve racial diversity would be constitutional.21 21.What Justice Thomas would say about such a case is especially uncertain, as other parts of his concurring opinion suggest that he finds questionable the very idea that racial diversity is important in higher education. See id. at 2207.Show More

The argument that they are not constitutional has recently gained traction. For example, it has already appeared in debates about the admissions criteria for public magnet schools.22 22.For a recent analysis, see Sonja Starr, The Magnet School Wars and the Future of Colorblindness, 76 Stan. L. Rev. 161, 163–64 (2024). Show More In Coalition for TJ v. Fairfax County School Board, a change from one facially neutral admissions policy to another at the Thomas Jefferson High School for Science and Technology (“TJ”) was challenged on the grounds that the change was motivated by a desire to “racially balance” the school.23 23.See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 871–72, 875–76 (4th Cir. 2023). Judge Rushing, dissenting, argued that a “school board’s motivation to racially balance its schools, even using the means of a facially neutral policy, must be tested under exacting judicial scrutiny.” Id. at 893 (Rushing, J., dissenting).Show More While one could interpret that claim as alleging that the School Board intended to exclude Asian students, which would be prohibited, it could also be understood as a claim that the School Board impermissibly changed its policy in order to include more Black and Latinx students. In its petition for certiorari, the petitioners fused these questions and treated these claims as equivalent.24 24.See Petition for Writ of Certiorari at 13, Coal. for TJ, No. 23-170 (U.S. Aug. 21, 2023) (styling their first reason for granting the petition in these terms: “The Use of Facially Race-Neutral Admissions Criteria to Achieve Racial Balance Presents an Unsettled Question of National Importance”).Show More To date, this argument has not succeeded,25 25.The majority opinion in Coalition for TJ does not specifically address this issue. See generally Coal. for TJ, 68 F.4th 864. In Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, the plaintiffs unsuccessfully argued that “where the government shifts to a policy that treats applicants differently based on a factor that is designed to operate as a proxy for race, it becomes suspect.” 627 F. Supp. 3d 253, 263–65 (S.D.N.Y. 2022).Show More but it has not been repudiated, either.26 26.See, for example, Lewis v. Ascension Parish SchoolBoard, 662 F.3d 343, 352 (5th Cir. 2011) (per curiam), in which the Fifth Circuit reversed the lower court’s summary judgment and remanded the case in light of the existence of genuine issues of material fact regarding whether a racially discriminatory purpose and effect were present. Then-Chief Judge Jones, concurring, asserted that geographic boundaries used in student assignment are not racially neutral if adopted for the purpose of achieving racial balance in the schools. Id. at 354 (Jones, C.J., concurring) (“Streets . . . may well be racial proxies because the district or its agents apparently knew and used the racial composition of the people living on those streets to pursue racial balancing.”). Following remand to the district court, the Fifth Circuit upheld the finding of no constitutional violation without reaching the question of whether discriminatory intent was present. Lewis v. Ascension Parish Sch. Bd., 806 F.3d 344, 358, 363 (5th Cir. 2015).Show More And, while the Supreme Court declined to grant certiorari in this case, its reasons for doing so are unknown.27 27.Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 23-170, 2024 WL 674659, at *1 (U.S. Feb. 20, 2024). Justice Alito, joined by Justice Thomas, dissented from the denial of certiorari but did so for reasons unrelated to the question regarding what intentions are prohibited under equal protection doctrine. Id. at *1, 5 (Alito, J., dissenting from the denial of certiorari).Show More Perhaps the Court approved of the reasoning of the U.S. Court of Appeals for the Fourth Circuit that the use of facially neutral policies to increase diversity is permissible, or perhaps the Court was simply not yet ready to take this issue on.

This unresolved question comes with high stakes. If the Court decides that facially neutral policies adopted to increase racial diversity in public magnet schools are unconstitutional, many policies, both within the education context and beyond it, would also be at risk. For example, suppose a universal pre-kindergarten program is adopted in order to reduce racial disparities in educational achievement. Or suppose a city adopts a government-funded doula program in order to reduce the racial disparity in maternal death rates.28 28.See, e.g., Zeina Mohammed, Black Women Are More Likely to Die During Pregnancy. A Local Doula Program Aims to Change That, Bos. Globe (Dec. 30, 2022, 5:14 PM), https://www.bostonglobe.com/2022/12/30/metro/mass-general-brighams-doula-program-aim‌s-close-racial-disparities-childbirth/; Working Together to Reduce Black Maternal Mortality, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/womens-health/features/matern‌al-mortality.html [https://perma.cc/4TR9-VV7E] (last updated Apr. 8, 2024).Show More If the intention to affect which racial group is most benefited by a policy constitutes an impermissible intent, these programs would be subject to strict scrutiny. While such policies could be adopted for alternative reasons, unrelated to the race of likely beneficiaries, if they would not have been adopted for these alternative reasons alone, then the constitutional problem remains.29 29.Where a constitutionally impermissible reason is a motivating reason for facially neutral state action, the burden shifts to the state to show that the same decision would have been reached absent the impermissible motivation. If the state is unable to do so, the facially neutral policy is subject to heightened review. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66, 270 n.21 (1977).Show More

Moreover, the implications of invalidating facially neutral policies enacted to improve racial diversity or reduce racial disparities likely apply beyond the constitutional context. Because the Court in SFFA treats the requirements of Title VI of the Civil Rights Act of 1964 as equivalent to the requirements of equal protection, prohibitions on the deliberate adoption of facially neutral means of achieving diversity could also extend to non-state actors receiving federal funds.30 30.See supra note 5.Show More

This Article thus addresses a pressing and critical question. To restate it in terms of the two hypothetical policies mentioned earlier, we need to know: What, if anything, distinguishes the use of class rank to include minority students from the use of zip codes to exclude them? In the following Parts, I provide a novel answer to that enduring puzzle. The answer, which I call the “Distinct Threads” approach, rests on the claim that though equal protection doctrine prohibits race-based differential treatment and prohibits actions taken with impermissible intent, these two proscriptions rest on different foundations and cannot be combined. In addition, I argue that the focus on impermissible intent is poorly understood. What the doctrine prohibits is only actions that are motivated by the harm they cause to individuals or groups. Facially neutral policies that are deliberately adopted in order to increase racial diversity neither involve race-based differential treatment, nor are they motivated by the desire to cause harm. As a result, these actions are permissible.

The argument for this solution proceeds as follows. Part I lays out the question this Article investigates and describes the three conceptually available answers. In addition, Part I describes how other scholars have analyzed the question and explains why their answers are unsatisfactory. Part II describes my proposed solution. It argues for the claim that the prohibitions contained within equal protection doctrine cannot be combined and diagnoses why the prohibition on invidious intent has been misunderstood. Part III elaborates this account, explaining why harm must be assessed objectively and describing how current doctrine supports the view that racial isolation is a harm. In addition, Part III discusses the implications of this account for our understanding of the term “race conscious” and for how courts ought to evaluate implicit bias. A brief conclusion follows.

  1.  Transcript of Oral Argument at 13–14, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (No. 21-707). ↑
  2.  143 S. Ct. 2141 (2023). ↑
  3.  The use of race in admissions was invalidated because the interests allegedly served by student body diversity are too difficult to measure and because the means adopted to achieve these ends are inapt. Id. at 2166–67. Additionally, in the Court’s view, the policies at issue rely on racial stereotypes and harm those not preferred by the policies. Id. at 2168–70. Chief Justice Roberts’s opinion for the Court does not, however, explicitly overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and explicitly leaves open the question of whether the consideration of race is also impermissible in the context of admissions at the military academies. SFFA, 143 S. Ct. at 2166 n.4 (“This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”). ↑
  4.  The term “facially neutral” refers to a law or policy that does not explicitly classify on protected grounds. ↑
  5.  The Court in SFFA considered both a constitutional claim and a statutory claim but viewed the prohibition on race discrimination contained in Title VI of the Civil Rights Act of 1964 as equivalent to the constitutional requirements of equal protection. For this reason, the result of the constitutional analysis will also have implications for non-state actors. See SFFA, 143 S. Ct. at 2156 n.2 (explaining that the Court would “evaluate Harvard’s admissions program under the standards of the Equal Protection Clause” because “discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI” (quoting Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003))). ↑
  6.  See Transcript of Oral Argument at 13–14, SFFA, 143 S. Ct. 2141 (No. 21-707). ↑
  7.  See id. at 13, 43–45. ↑
  8.  Id. at 13. Mr. Strawbridge seems to equivocate in his answer to Justice Kagan’s question. He initially seems to say that such policies would be permissible but ultimately does say that if the university adopted the policy at least in part because it would increase diversity and would not have adopted it without this reason, then the facially neutral policy would be impermissible. Id. at 16 (“[I]f the only reason to do it is through the narrow lens of race and there is no other race-neutral justification for it that the government can come forward and demonstrate that would have led it to adopt that policy anyway, I think . . . that’s the only scenario where it would create problems under the Court’s precedent.”). ↑
  9.  See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n.6 (1986); Grutter v. Bollinger, 539 U.S. 306, 340 (2003) (“We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.”); id. at 342 (“Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.”). ↑
  10.  See, e.g., Fisher v. Univ. of Tex. at Austin (Fisher II), 579 U.S. 365, 426–27 (2016) (Alito, J., dissenting) (noting that if the University of Texas at Austin adopted race-neutral policies it could achieve diversity “without injecting race into the process”); Grutter, 539 U.S. at 394–95 (Kennedy, J., dissenting) (“Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. . . . Other programs do exist which will be more effective in bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.”); Gratz, 539 U.S. at 297 (Souter, J., dissenting) (“Drawing on admissions systems used at public universities in California, Florida, and Texas, the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan. . . . [T]here is nothing unconstitutional about such a practice . . . .”). ↑
  11.  Judge Heytens makes precisely this argument in response to the claim that the deliberate use of race-neutral polices to increase racial diversity transforms the policy into one that is race-based. See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 891 (4th Cir. 2023) (Heytens, J., concurring) (emphasizing that “it would be quite the judicial bait-and-switch to say such race-neutral efforts are also presumptively unconstitutional” after spending “decades telling school officials they must consider race-neutral methods for ensuring a diverse student body before turning to race-conscious ones”), cert. denied, No. 23-170, 2024 WL 674659 (U.S. Feb. 20, 2024). ↑
  12.  See, e.g., Brian T. Fitzpatrick, Can Michigan Universities Use Proxies for Race After the Ban on Racial Preferences?, 13 Mich. J. Race
    & L

    . 277, 283 (2007) (arguing that “antidiscrimination laws have been [and should be] interpreted to prohibit not only facial classifications, but also neutral classifications that were adopted to serve as proxies for the facially-prohibited one”); Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 496 (2003) (exploring the possibility that disparate impact liability mandated by Title VII may violate the constitutional guarantee of equal protection because that statute was adopted with the purpose of redressing racial inequality); Kim Forde-Mazrui, The Constitutional Implications of Race-Neutral Affirmative Action, 88 Geo. L.J. 2331, 2364–65, 2377 (2000) (arguing that race-neutral affirmative action may be unconstitutional if motivated by the same purposes as affirmative action that relies on racial classification). See generally Larry Alexander & Kevin Cole, Discrimination by Proxy, 14 Const. Comment. 453 (1997) (assuming that the deliberate use of a facially neutral trait to select for people with a protected trait violates the anti-discrimination principle and arguing that equal protection doctrine is internally conflicted). ↑

  13.  Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added) (requiring a showing that a defendant discriminated “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group” in order to impose liability). The Feeney Court upheld Massachusetts’s preference for veterans in civil service positions, despite the fact that the policy disproportionately excluded women, because the policy was not adopted in order to exclude women. Id. at 275. The clear implication of this holding is that had the policy been adopted in order to exclude women, it would be impermissible. ↑
  14.  The Chief Justice emphasizes this fact in SFFA. See SFFA, 143 S. Ct. 2141, 2175 (2023) (critiquing the dissent by asserting that “[w]hile the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue”). ↑
  15.  See id. at 2166; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298–99 (1978) (holding that whether a racial classification is used for benign purposes or invidious ones is not relevant and instead that classifications that “touch upon an individual’s race or ethnic background” all require the application of strict scrutiny). ↑
  16.  SFFA, 143 S. Ct. at 2169 (“A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”). ↑
  17.  In another case, the Chief Justice has suggested that he would find such motivation suspect. See, for example, Chief Justice Roberts’s comment in Parents Involved, where he opined that “[r]acial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’” which suggests that he might find intending to select for people on the basis of race to also be a patently unconstitutional motivation. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 732 (2007). ↑
  18.  SFFA, 143 S. Ct. at 2225 (Kavanaugh, J., concurring) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 526 (1989) (Scalia, J., concurring)). ↑
  19.  Id. at 2215 (Gorsuch, J., concurring). ↑
  20.  Id. at 2206 (Thomas, J., concurring). ↑
  21.  What Justice Thomas would say about such a case is especially uncertain, as other parts of his concurring opinion suggest that he finds questionable the very idea that racial diversity is important in higher education. See id. at 2207. ↑
  22.  For a recent analysis, see Sonja Starr, The Magnet School Wars and the Future of Colorblindness, 76 Stan. L. Rev.
    161, 163–64 (2024).

    ↑

  23.  See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 871–72, 875–76 (4th Cir. 2023). Judge Rushing, dissenting, argued that a “school board’s motivation to racially balance its schools, even using the means of a facially neutral policy, must be tested under exacting judicial scrutiny.” Id. at 893 (Rushing, J., dissenting). ↑
  24.  See Petition for Writ of Certiorari at 13, Coal. for TJ, No. 23-170 (U.S. Aug. 21, 2023) (styling their first reason for granting the petition in these terms: “The Use of Facially Race-Neutral Admissions Criteria to Achieve Racial Balance Presents an Unsettled Question of National Importance”). ↑
  25.  The majority opinion in Coalition for TJ does not specifically address this issue. See generally Coal. for TJ, 68 F.4th 864. In Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, the plaintiffs unsuccessfully argued that “where the government shifts to a policy that treats applicants differently based on a factor that is designed to operate as a proxy for race, it becomes suspect.” 627 F. Supp. 3d 253, 263–65 (S.D.N.Y. 2022). ↑
  26.  See, for example, Lewis v. Ascension Parish School Board, 662 F.3d 343, 352 (5th Cir. 2011) (per curiam), in which the Fifth Circuit reversed the lower court’s summary judgment and remanded the case in light of the existence of genuine issues of material fact regarding whether a racially discriminatory purpose and effect were present. Then-Chief Judge Jones, concurring, asserted that geographic boundaries used in student assignment are not racially neutral if adopted for the purpose of achieving racial balance in the schools. Id. at 354 (Jones, C.J., concurring) (“Streets . . . may well be racial proxies because the district or its agents apparently knew and used the racial composition of the people living on those streets to pursue racial balancing.”). Following remand to the district court, the Fifth Circuit upheld the finding of no constitutional violation without reaching the question of whether discriminatory intent was present. Lewis v. Ascension Parish Sch. Bd., 806 F.3d 344, 358, 363 (5th Cir. 2015). ↑
  27.  Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 23-170, 2024 WL 674659, at *1 (U.S. Feb. 20, 2024). Justice Alito, joined by Justice Thomas, dissented from the denial of certiorari but did so for reasons unrelated to the question regarding what intentions are prohibited under equal protection doctrine. Id. at *1, 5 (Alito, J., dissenting from the denial of certiorari). ↑
  28.  See, e.g., Zeina Mohammed, Black Women Are More Likely to Die During Pregnancy. A Local Doula Program Aims to Change That, Bos. Globe (Dec. 30, 2022, 5:14 PM), https://www.bostonglobe.com/2022/12/30/metro/mass-general-brighams-doula-program-aim‌s-close-racial-disparities-childbirth/
    ;

    Working

    Together to Reduce Black Maternal Mortality, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/womens-health/features/matern‌al-mortality.html [https://perma.cc/4TR9-VV7E] (last updated Apr. 8, 2024). ↑

  29.  Where a constitutionally impermissible reason is a motivating reason for facially neutral state action, the burden shifts to the state to show that the same decision would have been reached absent the impermissible motivation. If the state is unable to do so, the facially neutral policy is subject to heightened review. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66, 270 n.21 (1977). ↑

  30.  See supra note 5. ↑

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