Article

Oligopoly Squared: Federalism and the New Legal Landscape Tackling the Dark Web of Drug Pricing

The pharmaceutical industry’s billion-dollar practice of inflating drug prices and shielding itself from accountability has brought immense public outcry and inspired a profusion of legal reforms. But the precise dynamics that enable this ongoing crisis remain obscure, impeding effective resolution. This Article examines the interplay between legislative, regulatory, and new governance approaches emerging at both the federal and state levels. It exposes how a seemingly singular problem of high drug costs unfolds as a complex series of mergers, collusions, and restrictive strategies throughout the healthcare supply chain.

The poster child of big pharma greed is insulin, the lifesaving drug of diabetics. This Article presents insulin as a case study in analyzing how a drug discovered long ago evolved, through product hopping and patent evergreening, into multiple brand-name products still under patent. It further illustrates how market concentration in each link of the drug delivery chain has substantially increased with impunity, spanning from big pharma to pharmacy benefit management (“PBM”) intermediaries that broker deals between drug manufacturers, insurers, and pharmacies. The compounding effects of horizontal and vertical integration of powerful industry actors—what this Article calls “oligopoly squared”—have enabled collusive deals, including formulary exclusion, secret rebates, spread pricing, and preferred pharmacy status, each designed to artificially inflate insulin prices.

Moving from the expository and descriptive to the analytical and prescriptive, this Article then presents an equally multifaceted framework to address these harmful effects, combining cost control and transparency laws, PBM regulation, patent law and U.S. Food and Drug Administration generics approval reforms, and antitrust enforcement. This Article explains why federal law should not be interpreted as preempting state regulation of pharmaceutical supply chains. This Article further analyzes efforts using cutting-edge theories of competition law in light of broader recent developments in adjudicating market power and collusion. Most importantly, this Article examines the newest approaches emerging in the landscape of market and legal levers—direct-to-consumer transparent pharmacies and the public production of drugs—and argues that these new governance models have the greatest potential to disrupt the concentrated market. By analyzing and integrating these diverse efforts through the lens of legal theory and practical impact, this Article not only charts the course of pharmaceutical drug industry reform but also offers broader implications for regulating complex industries.

Introduction

Escalating prescription drug prices have sparked an unprecedented wave of law and policy initiatives, with numerous lawsuits and legislative reforms emerging at both the federal and state levels. These efforts aim to tackle not only the exorbitant cost of prescription medications but also the opaque and entrenched practices in each link of a complex drug delivery chain.1 1.See infra Parts III–IV.Show More

The sheer scope and diversity of new legal reforms—spanning price controls, transparency mandates, patent law and generic drug approval reforms, antitrust enforcement, and, most recently, public drug production and direct-to-patient delivery—signal a seismic shift in the understanding of how legal frameworks can be deployed to disrupt concentrated markets and protect consumers. The breadth of legal actions provides a model for studying competition and industry regulation more broadly. This Article analyzes the contemporary momentum in which policymakers simultaneously leverage legislation, regulation, litigation, and market strategies to tackle a billion-dollar industry’s harmful practices. It shows how myriad efforts to directly regulate drug prices have stalled, proven ineffective, or been challenged in courts, including in a current case in which the Supreme Court recently denied certiorari.2 2.Pharm. Care Mgmt. Ass’n v. Mulready, 78 F.4th 1183 (10th Cir. 2023), cert. denied, 145 S. Ct. 2843 (2025) (mem.).Show More Analyzing the split circuit adjudication on federal preemption of such state reforms, this Article argues that the Court should have resolved the split by holding that state regulation of pharmaceutical supply chains is not preempted by federal law. The complex structure of the pharmaceutical industry presents a test case wherein federalism offers opportunities for democratic experimentalism and new multilevel governance reforms.3 3.On new governance theory and practice, see Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. 342, 404–07 (2004) [hereinafter Lobel, The Renew Deal] (describing the paradigm shift in legal process from command and control to more collaborative participatory regulation); Orly Lobel, New Governance as Regulatory Governance, in The Oxford Handbook of Governance 65, 65 (David Levi-Faur ed., 2012) (explaining how new governance theory provides lessons for government and market stakeholders on how to collaborate toward shared goals); Orly Lobel, National Regulation in a Global Economy: New Governance Approaches to 21st Century Work Law, in 2 Labor and Employment Law and Economics 630, 640–41 (Kenneth G. Dau-Schmidt, Seth D. Harris & Orly Lobel eds., 2009) (applying new governance theory to workplace regulation); Orly Lobel, Setting the Agenda for New Governance Research, 89 Minn. L. Rev. 498, 499–502 (2004) (describing next steps in the developments of new governance theory and practice).Show More Preemption should be narrowly tailored to allow state laws designed to protect patients and enhance consumer welfare. Even more critically, this Article argues that the novel path of public drug manufacturing and delivery is an essential lever to directly disrupt this complex concentrated market.

Insulin is the poster child for high drug costs in the United States. Insulin prices in the United States have spiked shockingly high compared to those in other developed countries.4 4.Andrew W. Mulcahy & Daniel Schwam, RAND Corp., Comparing Insulin Prices in the United States to Other Countries 17 (2024) (“Compared with other countries, and in each insulin category, the United States had dramatically higher gross prices. The average U.S. manufacturer price per 100 IUs across all insulins was $22.68, compared with $3.75 in Canada, $2.20 in the United Kingdom, $2.79 in Mexico, and $2.37 across all non-U.S. OECD countries combined . . . .”).Show More A 2024 RAND report found that the price of insulin in the United States is more than nine times higher than the price of insulin in thirty-three comparison nations combined.5 5.Id. at v.Show More Even when accounting for rebates and discounts, U.S. net prices are still, on average, 2.3 times higher than those in other countries.6 6.Id.Show More Examining insulin as a case study for addressing skyrocketing drug prices reveals the need for the multifaceted framework presented in this Article. There are three manufacturers who make nearly all insulin sold in the United States: Eli Lilly, Novo Nordisk, and Sanofi.7 7.Judith A. Johnson, Cong. Rsch. Serv., IF11026, Insulin Products and the Cost of Diabetes Treatment 2 (2018).Show More These three dominant pharmaceutical manufacturers frequently engage in practices like product hopping and patent evergreening whereby they introduce slightly modified versions of brand-name drugs—often just before patent expiration—and aggressively market them to shift patients to the newly patented formulations.8 8.See infra Part I.Show More Although insulin was discovered more than a century ago, these practices prevent generic drugs from entering the market and competing with lower drug prices. Still, if drug manufacturers alone were engaging in anticompetitive tactics, reforming intellectual property law and generic drug approval could be a straightforward and effective solution. Unfortunately, the reality is far more complex. The American insulin industry is not simply an oligopoly; it represents what this Article terms an “oligopoly squared” market—the compounded effect of both market consolidation and restrictive tactics across complex supply chains.

Big pharma colludes with another highly concentrated industry that has largely operated under the radar: pharmacy benefit managers (“PBMs”).9 9.See infra Section II.B.Show More PBMs, while surprisingly understudied in legal scholarship, are the powerful middlemen who shape prescription drug delivery.10 10.See infra Section II.B.Show More PBMs determine formularies, the lists that dictate the prescription drugs that a health insurance plan covers.11 11.See infra Section II.B.Show More Three PBMs—CVS Caremark, Express Scripts, and Optum Rx—control this key intermediary role in the market.12 12.See Adam J. Fein, The Top Pharmacy Benefit Managers of 2024: Market Share and Key Industry Developments, Drug Channels Inst. (Mar. 31, 2025), https://www.drugchannels.net/2‌025/03/the-top-pharmacy-benefit-managers-of.html [https://perma.cc/XY38-T4BH] (“[Drug Channels Institute] estimates that for 2024, about 80% of all equivalent prescription claims were processed by three companies: the Caremark business of CVS Health, the Express Scripts business of Cigna, and the Optum Rx business of UnitedHealth Group.”).Show More The three lead manufacturers of insulin control more than ninety percent of the drug by value globally, and three PBMs control more than eighty percent of the prescription-management market.13 13.Claudia Martínez, Camille Romero & Natalia Sánchez Villalobos, Access to Med. Found., What Are Pharma Companies Doing to Expand Access to Insulin—and How Can Efforts Be Scaled Up? 4 (2022); Off. of Pol’y Plan., U.S. Fed. Trade Comm’n, Pharmacy Benefit Managers: The Powerful Middlemen Inflating Drug Costs and Squeezing Main Street Pharmacies 2 (2024). The six largest PBMs manage nearly ninety-five percent of all prescriptions filled in the United States. Id. at 5.Show More Furthermore, for decades, PBMs have been engaging in both vertical and horizontal integration, further concentrating the market by purchasing other key players in the healthcare supply chain, including pharmacies and health insurance providers.14 14.See discussion infra Section II.D.Show More As this Article illustrates, the combined oligopolistic structure of the industry, alongside the complex regulatory scheme for pharmaceuticals and health care, has enabled the three leading insulin producers and three dominant PBM players to exploit legal loopholes, manipulate markets, and broker collusive deals, all while aggressively and continuously increasing the price of insulin and other drugs.

Public outcry over insulin prices has prompted congressional hearings, legislative and regulatory action, and pending litigation at both the state and federal levels. At the federal level, Congress enacted the Inflation Reduction Act of 2022, empowering Medicare to negotiate drug prices and capping out-of-pocket insulin costs at thirty-five dollars per month for Medicare patients.15 15.Bisma A. Sayed et al., Off. of the Assistant Sec’y for Plan. & Evaluation, U.S. Dep’t of Health & Hum. Servs., Insulin Affordability and the Inflation Reduction Act: Medicare Beneficiary Savings by State and Demographics 1 (2023), https://aspe.hhs.gov/sites/default/fil‌es/documents/bd5568fa0e8a59c2225b2e0b93d5ae5b/aspe-insulin-affordibility-datapoint.pdf [https://perma.cc/TL9A-QWJU]; Tami Luhby, More Americans Can Now Get Insulin for $35, CNN, https://www.cnn.com/2024/01/01/politics/insulin-price-cap/index.html [https://perma.‌cc/6TAR-FBEV] (last updated Jan. 2, 2024, 5:34 PM); Jay-Donavin Ved, The Inflation Reduction Act of 2022: Addressing Prescription Drug Coverage, 32 Annals Health L. Advance Directive 131, 131 (2023).Show More In 2024 alone, dozens of new bills were introduced in Congress to address the high costs of pharmaceutical drugs.16 16.See infra Part III.Show More A 2025 bipartisan bill, the Patients Over Profit Act, seeks to prevent the increasing vertical integration in health care, where insurance companies acquire provider practices, labs, specialty practices, and outpatient clinics—although in its current form, the bill leaves intact the consolidation between PBMs and pharmacies.17 17.Patients Over Profit Act, S. 2836, 119th Cong. (2025).Show More At the state level, this Article produces an original, comprehensive, and up-to-date mapping of the twenty-nine states, plus the District of Columbia, that have passed legislation to cap insulin prices, analyzing the potential benefits and risks of such direct price controls.18 18.See infra Section III.B, Figure IV, Table I.Show More Over the past few years, each of the fifty states has also enacted legislation to tackle the PBMs’ behaviors, through measures such as prohibiting PBMs’ exclusion of nonaffiliated pharmacies from health plans.19 19.T. Joseph Mattingly II, Maisie Lewis, Mariana P. Socal & Ge Bai, State-Level Policy Efforts to Regulate Pharmacy Benefit Managers (PBMs), 18 Rsch. Soc. & Admin. Pharmacy 3995, 3995, 3999 (2022).Show More The validity of these state reforms is uncertain in light of a circuit split regarding whether they are preempted by federal law. Moreover, in the past few years, and accelerating in 2024, state attorneys general across the country, as well as the Federal Trade Commission (“FTC”), have filed lawsuits against the major insulin manufacturers and PBMs, alleging anticompetitive practices and price-fixing.20 20.Many of these actions—including those by Arkansas, Illinois, Kansas, Mississippi, Montana, California, Louisiana, Puerto Rico, Hawaii, Arizona, Texas, Utah, Missouri, as well as by unions and local governments—have been consolidated. Docket, In re Insulin Pricing Litig., No. 3080 (J.P.M.L. May 9, 2023). The FTC filed its own complaint against PBMs, alleging violation of Section 5 of the FTC Act, 15 U.S.C. § 45, in September 2024. Complaint, In re Caremark Rx, LLC, No. 9437 (F.T.C. Sept. 20, 2024) [hereinafter FTC Complaint]. Class actions have also been filed by patients against insurers for paying PBMs inflated drug costs. Daniel Wiessner, Wells Fargo Sued Over Employee Prescription Drug Costs, Reuters (July 30, 2024), https://www.reuters.com/legal/wells-fargo-sued-over-employee-prescription-drug-costs-2024-07-30/ [https://perma.cc/7MM5-VF5N].Show More In 2023, those states filed In re Insulin Pricing Litigation, the consolidated multidistrict litigation centering on the allegations that major insulin manufacturers—such as Eli Lilly, Novo Nordisk, and Sanofi—colluded with PBMs—like CVS Caremark, Express Scripts, and Optum Rx—to artificially and fraudulently inflate the price of insulin.21 21.First Amended Complaint at 6, Arkansas ex rel. Rutledge v. Eli Lilly & Co., No. 22-cv-00549 (E.D. Ark. Aug. 8, 2022); Complaint at 6, Illinois ex rel. Raoul v. Eli Lilly & Co., No. 2022CH11699 (Ill. Cir. Ct. Dec. 2, 2022); Petition at 6, Kansas ex rel. Schmidt v. Eli Lilly & Co., No. 2022-cv-000735 (Kan. Dist. Ct. Dec. 2, 2022); Third Amended Complaint at 5, Mississippi ex rel. Fitch v. Eli Lilly & Co., No. 21-cv-00674 (S.D. Miss. Feb. 17, 2022).Show More Since 2023, the number of states in the multistate litigation has grown to include seventeen U.S. states and territories.22 22.These states and territories are Arizona, Arkansas, California, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Ohio, Pennsylvania, Puerto Rico, Texas, Utah, and West Virginia. Docket, In re Insulin Pricing Litig., No. 3080.Show More Drawing on antitrust principles, this Article presents the first scholarly analysis of this sea of new lawsuits and contends that the pharmaceutical companies and pharmacy managers have conspired to artificially inflate drug prices, thereby exploiting the vulnerability of millions of patients.

California’s approach to high insulin prices is broader than most state reforms, the majority of which have focused solely on direct price controls. California’s legislation to cap the price of insulin was initially vetoed by Governor Gavin Newsom, though such caps were enacted in 2025.23 23.See Lexington Souers, State Legislation Provides Hope for Rising Insulin Costs, Council of State Gov’ts (Mar. 31, 2023), https://www.csg.org/2023/03/31/state-legislation-provides-h‌ope-for-rising-insulin-costs/ [https://perma.cc/6R4D-7937] (contrasting the legislation that Governor Newsom initially vetoed with insulin price cap legislation in eleven other states); Jess Berthold, CA Governor Just Vetoed Price Caps on Insulin. Now What?, Univ. of Cal. S.F. (Oct. 11, 2023), https://www.ucsf.edu/news/2023/10/426351/ca-governor-just-vetoed-pri‌ce-caps-insulin-now-what [https://perma.cc/8MPV-MT6D] (explaining California’s alternative plan to produce its own insulin for thirty dollars per vial); see also infra note 237 (detailing California’s newly enacted insulin price cap legislation).Show More In the wake of Newsom’s original veto, the state instead enacted a revolutionary state-produced insulin initiative. In 2023, California announced a contract with a nonprofit drugmaker, Civica Rx, to produce government-funded, affordable insulin. Named CalRx, the public program aims to develop, produce, and distribute generic drugs at low costs, starting with insulin.24 24.S.B. 852, 2020 Leg., Reg. Sess. (Cal. 2020).Show More This novel approach to public drug production has the potential to disrupt not just the diabetes medication market, but healthcare delivery more broadly. The next drug on the agenda is naloxone, a drug used to reverse opioid overdoses that the U.S. Food and Drug Administration (“FDA”) recently approved as an over-the-counter generic.25 25.Lynn La, California Will Buy Cheaper Naloxone to Stop Fentanyl Deaths, CalMatters (Apr. 30, 2024), https://calmatters.org/newsletter/california-fentanyl-deaths-naloxone/ [https:‌//perma.cc/KS48-3QPT]; see also Kristen Hwang, Newsom Committed California to Making Its Own Insulin. It’s at Least a Year Behind His Schedule, CalMatters (Jan. 15, 2025), https://c‌almatters.org/health/2025/01/insulin-production-gavin-newsom/ [https://perma.cc/K9FR-N‌X92] (detailing the ties between the state’s efforts to make both insulin and naloxone more affordable).Show More Other states, as well as a federal bill, are looking to emulate this public intervention. In parallel, market initiatives such as Transparency-Rx and Mark Cuban’s Cost Plus are emerging to bypass the dominant PBMs and directly disrupt the concentrated market of drug delivery.26 26.See infra Section V.A.Show More

The high cost of insulin and other essential medications is often framed as a straightforward, single-issue problem: drug prices are simply inflated by their sellers.27 27.See, e.g., Lev Facher, It’s the Insulin, Stupid: How Drug Pricing’s Simplest Case Study Became a Top Issue for 2020 Democrats, STAT News (Jan. 28, 2020), https://www.statnews.c‌om/2020/01/28/insulin-pricing-becomes-top-issue-for-democrats [https://perma.cc/GB8L-E‌VKQ] (“Even in a primary dominated by broader health care issues, insulin has emerged as particularly alluring campaign fodder for Democrats. Unlike more perplexing topics like health insurance reform or the cost of drug research, candidates have a plain and simple rallying cry for insulin: That it’s corporate profiteering.”).Show More However, this reductive view obscures the intricate web of market dynamics and regulatory vulnerabilities that sustain and exacerbate the crisis. The source of the illness lies in the inscrutable structures of the pharmaceutical market, characterized by concentrated but convoluted supply chains, opaque pricing mechanisms, and a labyrinth of middlemen whose incentives are misaligned with public health goals. This Article explains how the compounded structure of multiple oligopolies enables actors to leverage legal loopholes, exploit patent laws, and engage in explicit and tacit collusions that further entrench market dominance and stifle competition. What appears to be a straightforward economic issue is, upon closer examination, a systemic pathology supported by an inadequate legal landscape. This Article argues that it is precisely the reality of oligopoly squared that has resisted traditional regulation. Most importantly, by offering a rigorous analysis of the new legal landscape, this Article explains the comparative advantages and interplay between federal and state law and policy, uncovering why complex market structures require an antidote of equally robust legal innovation.

This Article makes three major contributions. First, it demonstrates that the high cost of drugs is not the result of a single problem but instead has emerged through a series of anticompetitive practices throughout the healthcare industry. Mining through the profusion of new congressional reports, governmental investigations, lawsuits, and interdisciplinary research, this Article presents the multiple ways in which key actors in the pharmaceutical supply chain engage in anticompetitive and unfair business practices that artificially inflate the costs of prescription drugs.

This Article’s second contribution is its timely, novel analysis of the ongoing court challenges to state law reforms aiming to address healthcare industry anticompetitive practices. In 2025, the Supreme Court denied a petition to help resolve Pharmaceutical Care Management Ass’n v. Mulready.28 28.78 F.4th 1183 (10th Cir. 2023).Show More The case presented the Court with a circuit split on whether state laws regulating PBMs are preempted by the federal Employee Retirement Income Security Act (“ERISA”) and Medicare Part D. The circuit decision was also in tension with a recent Supreme Court case, Rutledge v. Pharmaceutical Care Management Ass’n, wherein the Court unanimously upheld a state law regulating PBMs.29 29.141 S. Ct. 474 (2020).Show More Through an analysis of the preemption issues and long-standing case law balancing uniformity and federalism, this Article explains why the Court should have granted certiorari and ruled that the states clearly have the authority to regulate PBMs.

Third, this Article shows how the perfect storm of public outcry, new state and federal legislation, and escalating court battles presents a unique opportunity to study the comparative advantages of and interactions between legal approaches: legislative, regulatory, adjudicative, and public-private governance.30 30.On public-private governance theory and practice, see Lobel, The Renew Deal, supra note 3, at 344–45.Show More In particular, it classifies the law reforms into three emerging frontiers: (1) reforming patent law and drug approval regulations to prevent product hopping and encourage generic competition, as well as direct price caps and price transparency; (2) preventing horizontal and vertical collusions in the drug delivery chain, including by addressing the role of PBMs in brokering unfair formulary and rebate deals systems; and (3) launching innovative models for drug production and distribution, including transparent pharmacies and public manufacturing initiatives. This Article argues that among the many paths of law reform, the third category has the most revolutionary potential.

This Article proceeds in five parts. Part I presents insulin as a prominent example of a drug that was discovered long ago and has evolved into a variety of brand-name products that are still patented today because of big pharma’s manipulative product hopping and patent evergreening practices. Part II turns to the structure of the pharmaceutical and pharmacy benefit management markets, explaining how market concentration is compounded when each link in the drug delivery chain is dominated by powerful actors. It further describes the collusive practices among these actors that artificially inflate drug prices, including formulary exclusion, rebates, spread pricing, convoluted fees, and preferred pharmacy status. Part III documents and classifies the recent law reforms at both the state and federal levels, including cost control and cost transparency laws, PBM regulation, and antitrust lawsuits. This Part also analyzes the split circuit case law on federal preemption and argues that such preemption should be narrowly tailored to allow for democratic experimentalism. Part IV examines the dozens of new lawsuits by state attorneys general and the FTC that use antitrust and unfair competition law to put a stop to the range of collusive practices and deals between pharmaceutical manufacturers and PBMs. This Part analyzes frontiers of competition law and doctrine in relation to new enforcement efforts. Finally, Part V introduces the most novel approaches emerging in the landscape of market and legal levers: alternative public production and delivery of drugs.

The interplay between market realities and legal innovation described in this Article comes at a pivotal moment in the evolution of healthcare governance. This Article concludes by arguing that the emerging framework lends itself to examining more broadly the rich landscape of legal levers on consumer welfare, equitable access, and market competition. By analyzing this breadth of efforts through the lens of legal theory and practical impact, this Article aims not only to chart the course for pharmaceutical drug industry reforms, but also to explore broader implications for regulating complex concentrated industries.

  1.  See infra Parts III–IV. ↑
  2.  Pharm. Care Mgmt. Ass’n v. Mulready, 78 F.4th 1183 (10th Cir. 2023), cert. denied, 145 S. Ct. 2843 (2025) (mem.). ↑
  3.  On new governance theory and practice, see Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. 342, 404–07 (2004) [hereinafter Lobel, The Renew Deal] (describing the paradigm shift in legal process from command and control to more collaborative participatory regulation); Orly Lobel, New Governance as Regulatory Governance, in The Oxford Handbook of Governance 65, 65 (David Levi-Faur ed., 2012) (explaining how new governance theory provides lessons for government and market stakeholders on how to collaborate toward shared goals); Orly Lobel, National Regulation in a Global Economy: New Governance Approaches to 21st Century Work Law, in 2 Labor and Employment Law and Economics 630, 640–41 (Kenneth G. Dau-Schmidt, Seth D. Harris & Orly Lobel eds., 2009) (applying new governance theory to workplace regulation); Orly Lobel, Setting the Agenda for New Governance Research, 89 Minn. L. Rev. 498, 499–502 (2004) (describing next steps in the developments of new governance theory and practice). ↑
  4.  Andrew W. Mulcahy & Daniel Schwam, RAND Corp., Comparing Insulin Prices in the United States to Other Countries 17 (2024) (“Compared with other countries, and in each insulin category, the United States had dramatically higher gross prices. The average U.S. manufacturer price per 100 IUs across all insulins was $22.68, compared with $3.75 in Canada, $2.20 in the United Kingdom, $2.79 in Mexico, and $2.37 across all non-U.S. OECD countries combined . . . .”). ↑
  5.  Id. at v. ↑
  6.  Id. ↑
  7.  Judith A. Johnson, Cong. Rsch. Serv., IF11026, Insulin Products and the Cost of Diabetes Treatment 2 (2018). ↑
  8.  See infra Part I. ↑
  9.  See infra Section II.B. ↑
  10.  See infra Section II.B. ↑
  11.  See infra Section II.B. ↑
  12.  See Adam J. Fein, The Top Pharmacy Benefit Managers of 2024: Market Share and Key Industry Developments, Drug Channels Inst. (Mar. 31, 2025), https://www.drugchannels.net/2‌025/03/the-top-pharmacy-benefit-managers-of.html [https://perma.cc/XY38-T4BH] (“[Drug Channels Institute] estimates that for 2024, about 80% of all equivalent prescription claims were processed by three companies: the Caremark business of CVS Health, the Express Scripts business of Cigna, and the Optum Rx business of UnitedHealth Group.”). ↑
  13.  Claudia Martínez, Camille Romero & Natalia Sánchez Villalobos, Access to Med. Found., What Are Pharma Companies Doing to Expand Access to Insulin—and How Can Efforts Be Scaled Up? 4 (2022); Off. of Pol’y Plan., U.S. Fed. Trade Comm’n, Pharmacy Benefit Managers: The Powerful Middlemen Inflating Drug Costs and Squeezing Main Street Pharmacies 2 (2024). The six largest PBMs manage nearly ninety-five percent of all prescriptions filled in the United States. Id. at 5. ↑
  14.  See discussion infra Section II.D. ↑
  15.  Bisma A. Sayed et al., Off. of the Assistant Sec’y for Plan. & Evaluation, U.S. Dep’t of Health & Hum. Servs., Insulin Affordability and the Inflation Reduction Act: Medicare Beneficiary Savings by State and Demographics 1 (2023), https://aspe.hhs.gov/sites/default/fil‌es/documents/bd5568fa0e8a59c2225b2e0b93d5ae5b/aspe-insulin-affordibility-datapoint.pdf [https://perma.cc/TL9A-QWJU]; Tami Luhby, More Americans Can Now Get Insulin for $35, CNN, https://www.cnn.com/2024/01/01/politics/insulin-price-cap/index.html [https://perma.‌cc/6TAR-FBEV] (last updated Jan. 2, 2024, 5:34 PM); Jay-Donavin Ved, The Inflation Reduction Act of 2022: Addressing Prescription Drug Coverage, 32 Annals Health L. Advance Directive 131, 131 (2023). ↑
  16.  See infra Part III. ↑
  17.  Patients Over Profit Act, S. 2836, 119th Cong. (2025). ↑
  18.  See infra Section III.B, Figure IV, Table I. ↑
  19.  T. Joseph Mattingly II, Maisie Lewis, Mariana P. Socal & Ge Bai, State-Level Policy Efforts to Regulate Pharmacy Benefit Managers (PBMs), 18 Rsch. Soc. & Admin. Pharmacy 3995, 3995, 3999 (2022). ↑
  20.  Many of these actions—including those by Arkansas, Illinois, Kansas, Mississippi, Montana, California, Louisiana, Puerto Rico, Hawaii, Arizona, Texas, Utah, Missouri, as well as by unions and local governments—have been consolidated. Docket, In re Insulin Pricing Litig., No. 3080 (J.P.M.L. May 9, 2023). The FTC filed its own complaint against PBMs, alleging violation of Section 5 of the FTC Act, 15 U.S.C. § 45, in September 2024. Complaint, In re Caremark Rx, LLC, No. 9437 (F.T.C. Sept. 20, 2024) [hereinafter FTC Complaint]. Class actions have also been filed by patients against insurers for paying PBMs inflated drug costs. Daniel Wiessner, Wells Fargo Sued Over Employee Prescription Drug Costs, Reuters (July 30, 2024), https://www.reuters.com/legal/wells-fargo-sued-over-employee-prescription-drug-costs-2024-07-30/ [https://perma.cc/7MM5-VF5N]. ↑
  21.  First Amended Complaint at 6, Arkansas ex rel. Rutledge v. Eli Lilly & Co., No. 22-cv-00549 (E.D. Ark. Aug. 8, 2022); Complaint at 6, Illinois ex rel. Raoul v. Eli Lilly & Co., No. 2022CH11699 (Ill. Cir. Ct. Dec. 2, 2022); Petition at 6, Kansas ex rel. Schmidt v. Eli Lilly & Co., No. 2022-cv-000735 (Kan. Dist. Ct. Dec. 2, 2022); Third Amended Complaint at 5, Mississippi ex rel. Fitch v. Eli Lilly & Co., No. 21-cv-00674 (S.D. Miss. Feb. 17, 2022). ↑
  22.  These states and territories are Arizona, Arkansas, California, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Ohio, Pennsylvania, Puerto Rico, Texas, Utah, and West Virginia. Docket, In re Insulin Pricing Litig., No. 3080. ↑
  23.  See Lexington Souers, State Legislation Provides Hope for Rising Insulin Costs, Council of State Gov’ts (Mar. 31, 2023), https://www.csg.org/2023/03/31/state-legislation-provides-h‌ope-for-rising-insulin-costs/ [https://perma.cc/6R4D-7937] (contrasting the legislation that Governor Newsom initially vetoed with insulin price cap legislation in eleven other states); Jess Berthold, CA Governor Just Vetoed Price Caps on Insulin. Now What?, Univ. of Cal. S.F. (Oct. 11, 2023), https://www.ucsf.edu/news/2023/10/426351/ca-governor-just-vetoed-pri‌ce-caps-insulin-now-what [https://perma.cc/8MPV-MT6D] (explaining California’s alternative plan to produce its own insulin for thirty dollars per vial); see also infra note 237 (detailing California’s newly enacted insulin price cap legislation). ↑
  24.  S.B. 852, 2020 Leg., Reg. Sess. (Cal. 2020). ↑
  25.  Lynn La, California Will Buy Cheaper Naloxone to Stop Fentanyl Deaths, CalMatters (Apr. 30, 2024), https://calmatters.org/newsletter/california-fentanyl-deaths-naloxone/ [https:‌//perma.cc/KS48-3QPT]; see also Kristen Hwang, Newsom Committed California to Making Its Own Insulin. It’s at Least a Year Behind His Schedule, CalMatters (Jan. 15, 2025), https://c‌almatters.org/health/2025/01/insulin-production-gavin-newsom/ [https://perma.cc/K9FR-N‌X92] (detailing the ties between the state’s efforts to make both insulin and naloxone more affordable). ↑
  26.  See infra Section V.A. ↑
  27. See, e.g., Lev Facher, It’s the Insulin, Stupid: How Drug Pricing’s Simplest Case Study Became a Top Issue for 2020 Democrats, STAT News (Jan. 28, 2020), https://www.statnews.c‌om/2020/01/28/insulin-pricing-becomes-top-issue-for-democrats [https://perma.cc/GB8L-E‌VKQ] (“Even in a primary dominated by broader health care issues, insulin has emerged as particularly alluring campaign fodder for Democrats. Unlike more perplexing topics like health insurance reform or the cost of drug research, candidates have a plain and simple rallying cry for insulin: That it’s corporate profiteering.”). ↑
  28.  78 F.4th 1183 (10th Cir. 2023). ↑
  29.  141 S. Ct. 474 (2020). ↑

  30.  On public-private governance theory and practice, see Lobel, The Renew Deal, supra note 3, at 344–45. ↑

Section 1981 as Contract Law

A civil rights secret hides in plain sight: a federal antidiscrimination statute, 42 U.S.C. § 1981, expresses foundational rules of contract law in the United States. Originating in the Civil Rights Act of 1866 and amended by the Civil Rights Act of 1991, Section 1981 prohibits racially discriminatory formation, performance, modification, termination, and enforcement of contracts. The statute thus forbids parties from racially discriminating in nearly every phase of every contractual relationship.

Despite Section 1981’s evident concern for contracts, comprehensive summaries of contract law—including Restatements, treatises, and casebooks—usually ignore the statute. This omission might make sense if Section 1981 does not count as contract law, a tempting view given its status as federal antidiscrimination law. But this Article argues that, for conceptual and normative reasons, Section 1981 already counts as an important part of contract law and should be recognized as such. Apart from aspiring to guarantee equal citizenship regardless of race, the statute’s importance as contract law is hard to overstate given that it governs nearly every aspect of every contract—indeed, even every attempted contract—in the United States.

These claims have theoretical and practical implications. Contract law theories must respond to the possibility that antidiscrimination rules reinforce contract law’s most basic values rather than thwarting them. Practically, editors of treatises and other comprehensive doctrinal summaries should include some nontrivial discussion of Section 1981’s origins and contemporary applications. Applying doctrines like good faith and fair dealing may require assessing whether contracts are performed without racial discrimination. And law professors should consider revising their syllabi to include Section 1981 in their courses on contract law.

Contract law needs antidiscrimination law to realize its animating values, including economic freedom and basic transactional fairness. Rather than undermining the values embodied in contract law, sound antidiscrimination laws like Section 1981 are essential to facilitate and express them. The possibility that some antidiscrimination rules form part of contract law rather than merely constraining its operation from the outside should therefore come as no surprise.

Introduction

A civil rights secret hides in plain sight: a federal antidiscrimination statute, which has been on the books in one form or another since 1866, expresses foundational rules of contract law in the United States. This claim should be surprising. Contract law, after all, is traditionally understood to be indifferent to invidious discrimination,1 1.See Bowlin v. Lyon, 25 N.W. 766, 767–68 (Iowa 1885) (holding that a “colored man” who was denied entry into a skating rink solely because of his race was not entitled to admission given the rink’s discretion to contract with, or grant entry to, whomever it pleased); Noah D. Zatz, A Law and Political Economy Approach to Race, Gender, and Power in Contracts, in Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom 129, 133 (Nicole P. Dyszlewski, Raquel J. Gabriel, Suzanne Harrington-Steppen, Anna Russell & Genevieve B. Tung eds., 2021) (observing that “[i]n the classic common-law cases of refusal-to-contract, discrimination appears as purely private preference,” which courts treated on par with any other personal preference in the name of “evenhandedness”); Hila Keren, “We Insist! Freedom Now”: Does Contract Doctrine Have Anything Constitutional to Say?, 11 Mich. J. Race & L. 133, 142 (2005) [hereinafter Keren, We Insist! Freedom Now]; see alsoOrit Gan, Contract Law, Equality and the State, 72 Clev. St. L. Rev. 889, 892 (2024) (“[C]onventional wisdom holds that contract law has nothing to do with social equality.”); Deborah Zalesne, Racial Inequality in Contracting: Teaching Race as a Core Value, 3 Colum. J. Race & L. 23, 25 (2013) [hereinafter Zalesne, Racial Inequality in Contracting] (“Neoclassical contract theory embraces the idea of formal legal color blindness in assessing the validity of a contract, assuming that an individual’s race or ethnicity played no role in a contract’s formation or content.”).Show More independent of antidiscrimination law,2 2.Zatz, supra note 1, at 132–33 (describing antidiscrimination law’s “startling omission from” and “neglect within contracts curricula”); Allan H. Macurdy, Classical Nostalgia: Racism, Contract Ideology, and Formalist Legal Reasoning in Patterson v. McLean Credit Union, 18 N.Y.U. Rev. L. & Soc. Change 987, 1024–25 (1990) (asserting that, although contract law monitors valid contractual relationships through a variety of doctrines, the ostensibly “private” nature of contract law makes “[a]ntidiscrimination principles . . . seem irrelevant to the business of conducting business, and are thus of low priority”);Gan, supra note 1, at 892 (describing, without endorsing, the claim that “[c]ontract law is private law and has nothing to do with anti-discrimination law”).Show More and perhaps even antithetical to it.3 3.Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 3 (1992) (describing antidiscrimination law as the “antithesis of freedom of contract”); Kirsten L. McCaw, Comment, Freedom of Contract Versus the Antidiscrimination Principle: A Critical Look at the Tension Between Contractual Freedom and Antidiscrimination Provisions, 7 Seton Hall Const. L.J. 195, 202–03 (1996).Show More Concerning racial discrimination specifically, one can teach contract law, learn it, and wield it expertly without discussing or knowing much about whether or how race has shaped its current form,4 4.Dylan C. Penningroth, Race in Contract Law, 170 U. Pa. L. Rev. 1199, 1298–1300 (2022); see also Jeremiah A. Ho, Uncovering Bias: Teaching Contracts Critically, in Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom, supra note 1, at 121, 121–22.Show More how racial bias impacts contractual transactions,5 5.See, e.g., Patricia J. Williams, The Alchemy of Race and Rights 146–48 (1991); Meirav Furth-Matzkin, Discrimination in Contractual Performance: Theory, Evidence, and Preliminary Policy Prescriptions, 99 Wash. L. Rev. 1165, 1177–84 (2024) (summarizing evidence of selective enforcement of consumer contract terms). See generally, e.g., Ian Ayres, Pervasive Prejudice? Unconventional Evidence of Race and Gender Discrimination (2001) (arguing, with empirical support, that race and gender discrimination is not uncommon in retail markets); Shaun L. Gabbidon & George E. Higgins, Shopping While Black: Consumer Racial Profiling in America (2020) (describing the pervasiveness of racial discrimination in everyday retail transactions); Michelle R. Dunlap, Retail Racism: Shopping While Black and Brown in America (2021) (explaining that racial profiling and inequality are prevalent in “every marketplace imaginable”); Anne-Marie G. Harris, Shopping While Black: Applying 42 U.S.C. § 1981 to Cases of Consumer Racial Profiling, 23 B.C. Third World L.J. 1 (2003) (analyzing the frequency and causes of consumer racial profiling and identifying Section 1981 claims as a possible recourse for people who experience discrimination in the marketplace); Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, 94 Am. Econ. Rev. 991 (2004) (examining racial discrimination in employment contracts by demonstrating that the labor market favors individuals with “white-sounding” names over individuals with “African-American-sounding” names).Show More or how contract law has affected the distribution of wealth among racial groups.6 6.See, e.g., Zalesne, Racial Inequality in Contracting, supra note 1, at 25 (“The apparent neutrality of contract law masks the distributive effects of legal rules.”). See generally, e.g., Keeanga-Yamahtta Taylor, Race for Profit: How Banks and the Real Estate Industry Undermined Black Homeownership (2019) (arguing that the public-private partnership between the real estate industry and the federal government in the late twentieth century exacerbated racial discrimination and residential segregation); Danielle Kie Hart, Contract Law & Racial Inequality: A Primer, 95 St. John’s L. Rev. 449 (2021) (arguing that, due to unequal bargaining power, contract law tends to increase material inequality in general, leading to material harm to marginalized groups). Discrimination in real estate appraisals, for example, straightforwardly impacts the wealth of Black homeowners. Jonathan Rothwell & Andre M. Perry, How Racial Bias in Appraisals Affects the Devaluation of Homes in Majority-Black Neighborhoods, Brookings Inst. (Dec. 5, 2022), https://www.brookings.edu/a‌rticles/how-racial-bias-in-appraisals-affects-the-devaluation-of-homes-in-majority-black-nei‌ghborhoods/ [https://perma.cc/A5HQ-43L8]; Heather R. Abraham, Appraisal Discrimination: Five Lessons for Litigators, 76 SMU L. Rev. 205, 215–19 (2023) (explaining some historic and modern mechanisms in the valuation process that lead to appraisal discrimination). For more on banking, see generally Mehrsa Baradaran, The Color of Money: Black Banks and the Racial Wealth Gap (2017) (explaining how the history of racial segregation in banking contributed to the racial wealth gap).Show More After all, neither doctrines nor statutes widely recognized as part of contract law refer to race or outwardly concern themselves with racial discrimination.7 7.Steven J. Burton, Racial Discrimination in Contract Performance: Patterson and a State Law Alternative, 25 Harv. C.R.-C.L. L. Rev. 431, 458–59 (1990) [hereinafter Burton, Racial Discrimination in Contract Performance]; Blake D. Morant, The Relevance of Race and Disparity in Discussions of Contract Law, 31 New Eng. L. Rev. 889, 897 (1997) (noting the existence of “contract law’s objective facade” which can obscure the role that “issues of disparity,” like racial discrimination, play in the contract process); Deborah Zalesne, The (In)Visibility of Race in Contracts: Thoughts for Teachers, ContractsProf Blog (July 8, 2020) [hereinafter Zalesne, The (In)Visibility of Race in Contracts], https://www.contractsprofblog.‌com/2020/07/deborah-zalesne-the-invisibility-of-race-in-contracts-thoughts-for-teachers/ [htt‌ps://perma.cc/TTW3-4HPL].Show More Even Williams v. Walker-Thomas Furniture Co.—a case famous for recognizing modern unconscionability doctrine and for highlighting issues about predatory market behavior in communities of color8 8.See Duncan Kennedy, The Bitter Ironies of Williams v. Walker-Thomas Furniture Co. in the First Year Law School Curriculum, 71 Buff. L. Rev. 225, 236 (2023).Show More—never mentions race explicitly.9 9.Id. at 236–37; see also Zalesne, Racial Inequality in Contracting, supra note 1, at 34; Amy H. Kastely, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law, 63 U. Cin. L. Rev. 269, 307 (1994). See generally Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965).Show More Contract law’s formal doctrines ignore race.

Critical scholars have also taken for granted contract law’s indifference to race,10 10.ContractsProf Blog devotes several posts to the question of how to raise the topics of race and racism in first-year courses in contract law. See, e.g., Charles Calleros, Talking About Race in the Contracts Course: Interface with Civil Rights Laws, Part I—Mutual Assent, ContractsProf Blog (June 15, 2020), https://www.contractsprofblog.com/2020/06/guest-post-by-charles-calleros-talking-about-race-in-the-contracts-course-interface-with-civil-right/ [htt‌ps://perma.cc/XL9Y-HYYD]; Charles Calleros, Talking About Race in the Contracts Course: Interface with Civil Rights Laws, Part II—Consideration, ContractsProf Blog (June 16, 2020), https://www.contractsprofblog.com/2020/06/guest-post-by-charles-calleros-talking-about-ra‌ce-in-the-contracts-course-interface-with-civil-right-1/ [https://perma.cc/P39Q-CNTQ]; Zalesne, The (In)Visibility of Race in Contracts, supra note 7.Show More arguing that contract law’s formal doctrines help courts and contracting parties mask racial biases in contractual relationships11 11.See Zalesne, Racial Inequality in Contracting, supra note 1, at 25–26; Chaumtoli Huq, Integrating a Racial Capitalism Framework into First-Year Contracts: A Pathway to Anti-Capitalist Lawyering, 35 J.C.R. & Econ. Dev. 181, 195 (2022) (asserting that “neutral discussions of core contracts principles, such as the unenforceability of gratuitous promises, consideration, and reliance, obscure how law maintains racial and economic subordination”); Marissa Jackson Sow, Whiteness as Contract, 78 Wash. & Lee L. Rev. 1803, 1829 (2022).Show More and render race-based contracting decisions irrelevant to the legal analysis of contract issues,12 12.Zalesne, Racial Inequality in Contracting, supra note 1, at 25–26 (asserting that assumptions of legal reasoning in contract law doctrine conceal bias); Huq, supra note 11, at 195–97 (citing Kirksey v. Kirksey, 8 Ala. 131 (1845)) (arguing that the traditional analysis of the formal contract doctrines presented in the classic Kirkseycase conceals background “ploys of power and racial subordination”); see alsoKastely, supra note 9, at 306 (arguing that Williams v. Walker-Thomas Furniture Co., a classic unconscionability case, fails to make explicit in its unconscionability analysis that the predatory contracts at issue involved “exploitation of low-income people of color . . . enabled in part by racist barriers”).Show More at least outside of certain important but circumscribed areas of economic life like employment,13 13.See generally 42 U.S.C. §§ 2000e–2000e-17 (prohibiting various types of employment discrimination).Show More housing,14 14.See generally id. §§ 3601–3619, 3631 (prohibiting housing discrimination).Show More education,15 15.See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 492–94 (1954) (holding that the racial segregation of children in public schools is unconstitutional).Show More and commercial lending.16 16.15 U.S.C. §§ 1691–1691f (prohibiting lending discrimination).Show More Contract law’s race-free facade has also been criticized for obscuring how minorities have used contract law to exercise their agency successfully in the world.17 17.Penningroth, supra note 4, at 1211–16, 1273; Brittany Farr, Breach by Violence: The Forgotten History of Sharecropper Litigation in the Post-Slavery South, 69 UCLA L. Rev. 674, 681–82 (2022).Show More If formalists and critical race theorists share any scholarly views about contract law, foremost is their assumption that it ignores race and racial discrimination.18 18.Professor Deborah Zalesne, however, does seem to challenge the assumption that contract law ignores race and racial discrimination in Zalesne, Racial Inequality in Contracting, supra note 1, at 24–25 (“[A] complete understanding of contract disputes routinely requires an analysis of the effects of inequality, including race dynamics, on parties’ bargaining choices.”). Although Zalesne correctly observes that courts have raised the issue of inequality of bargaining power in the context of applying the unconscionability doctrine, she does not show that courts routinely appeal to underlying racial dynamics in their legal reasoning. See generally id. See also Justin Driver, Recognizing Race, 112 Colum. L. Rev. 404, 449 (2012) (arguing that applying unconscionability in the Williams v. Walker-Thomas Furniture Co. case does not require reckoning with race). For one unconscionability case that notes racial disparities without disclosing the racial identities of the litigants, see State ex rel. King v. B & B Inv. Grp., Inc., 2014-NMSC-024, ¶¶ 13–17, 329 P.3d 658, 665–66.Show More

This Article challenges that assumption. Race is directly relevant to contract law because a federal statute prohibiting racial discrimination in contracting, 42 U.S.C. § 1981, also expresses important rules of contract law. Section 1981 guarantees everyone the same right “to make and enforce contracts . . . as is enjoyed by white citizens” and prohibits both private and public actors from racially discriminating in “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”19 19.42 U.S.C. § 1981(a)–(c).Show More This language—originating in the Civil Rights Act of 1866 and updated by the Civil Rights Act of 199120 20.Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27 (codified as amended at 42 U.S.C. §§ 1981–1982, 1988–1989); Civil Rights Act of 1991, Pub. L. No. 102-166, § 101, 105 Stat. 1071, 1071–72 (codified as amended at 42 U.S.C. § 1981).Show More—generates three reasons to treat Section 1981 as part of contract law in the United States.

The first traces back to the 1866 Act. Among other things, the Civil Rights Act of 1866 reformed the law of contract formation in the United States in response to the Black Codes adopted by Southern states after the Civil War.21 21.See infra Part I.Show More The Black Codes represented a systematic effort by Southern states to socially and economically subordinate formerly enslaved persons, including by affording legal powers to make and enforce contracts to white citizens that it denied to people of color.22 22.See infra Part I.Show More Congress rejected the Black Codes via the 1866 Act and thereby eliminated, at least as a formal matter, the two-tiered system of contractual freedoms they had established.23 23.See infra Part I.Show More Insofar as the rules defining the legal power to contract are quintessentially rules of contract law, the redefinition of that power Section 1981 inherited from the 1866 Act counts as contract law.24 24.See infra Part II.Show More

The second reason Section 1981 counts as part of contract law finds a foothold in the Civil Rights Act of 1991. In the 1991 Act, Congress explicitly prohibited racial discrimination in several distinctively contractual activities, including contract formation, performance, enforcement, modification, and termination.25 25.42 U.S.C. § 1981(b).Show More I argue that these are protective rules and thus count as part of contract law. Briefly, just like rules against fouling in basketball count as part of basketball’s rules and the Fourth Amendment exclusionary rule counts as a rule of constitutional law, Section 1981 expresses a rule that protects both the integrity of the practice of contracting (as opposed to basketball or government investigations), as well as the participants in the practice qua contracting parties (as opposed to basketball players or citizens). Because protective rules are partially constitutive of the system of rules they protect, Section 1981 counts as part of contract law and should be recognized as such.26 26.See infra Part II.Show More

These formal and conceptual considerations are reinforced, third, by substantive principles of contract law itself. More specifically, contract law’s core doctrines embody principles of fair play that cannot be easily reconciled with pernicious racial discrimination in contracting practices. Although common law courts have largely failed to recognize this point, and although they probably should, courts need not go that far: they need only recognize that Section 1981 already counts as part of contract law. Congress, after all, has already recognized the importance of antidiscrimination law in facilitating contractual fair play, and not just in some discrete economic realms such as employment or housing, but also in acts and practices of contracting as such. Common law courts should follow Congress’s lead.

Classifying Section 1981 as part of contract law is a taxonomical task. But taxonomy has far-reaching implications in this case. If Section 1981 is a foundational part of contract law, then theories of contract law that assume the power to contract confers unfettered discretion on parties to contract regardless of motive, for example, will have difficulty accounting for Section 1981.27 27.See infra Section V.A.Show More Because most comprehensive summaries of contract law fail to cite, let alone discuss, Section 1981,28 28.See infra Part IV.Show More curators of these works should discuss Section 1981’s significance or rethink why they omit the statute. Recognizing Section 1981 as part of contract law also undercuts the impulse to treat discrimination as extrinsic to doctrines such as good faith and fair dealing. Finally, if Section 1981 is an important part of contract law, then choosing not to teach it requires a justification. Although good reasons not to teach Section 1981 may exist—not every important subject can be covered in one semester—the bare fact that the statute expresses rules of antidiscrimination law cannot be one of those reasons. Section 1981 also states rules of contract law.

With that preview in mind, this Article is structured as follows. Part I gives a brief history of Section 1981 and discusses the controversies that surrounded its meaning, at least until Congress altered the statute via the Civil Rights Act of 1991. Chief among these controversies was whether it applied only to state action or whether Section 1981 also prohibited private discrimination. Although other interpretive controversies remain, both the U.S. Supreme Court and Congress have settled the question by extending the statute to private contracting practices. The Civil Rights Act of 1991 also clarified that Section 1981 bars racial discrimination in the formation, performance, modification, termination, and enforcement of every contract by public and private actors.

Part II turns to the main argument: Section 1981 already is, and should be understood to be, a part of contract law in the United States. Section II.A explains that the Civil Rights Act of 1866 reconstituted the law of contract formation in response to the Black Codes adopted by Southern states after the Civil War. Because the laws of contract formation are quintessentially part of contract law, the Civil Rights Act of 1866 inescapably became part of contract law in the United States. Section II.A further argues that the nature of Section 1981’s antidiscrimination rules suffices to show that it is part of contract law. Because Section 1981 protects participants in the practice of contracting as such, Section 1981 thereby generates rules of contract law. Section II.B takes a substantive and normative turn, arguing that Section 1981’s rule against racial discrimination should be recognized as an expression of contract law’s most basic principles rather than as a deviation from them. That is, because contract law’s doctrines already disfavor contractual unreasonableness in contracting, courts and commentators should likewise recognize that contract law disfavors invidious racial discrimination in contracting because it is also contractually unreasonable.29 29.See infra Section III.B.Show More

Part III argues that Section 1981’s antidiscrimination rule not only counts as part of contract law, but also counts as an important part of it. Section III.A reemphasizes Section 1981’s historical significance, as well as its formal importance given that it applies to all contracts (i.e., it has universal breadth) and regulates significant stages of any given contractual relationship (i.e., it has profound depth). Section III.B argues, in the alternative, that the very same reasons to treat Section 1981 as important justify revising our comprehensive summaries of contract law regardless of whether it counts as contract law.

Part IV shows that despite its status as contract law, despite applying to nearly every phase of every contractual relationship, and despite its importance, Section 1981 has been almost wholly ignored by leading repositories of contract law in the United States, including Restatements, casebooks, and major contract law treatises. Some of these omissions are not surprising. The Restatement (Second) of Contracts, for example, emphasizes the common law and was finalized by the American Law Institute in 1979—shortly after the U.S. Supreme Court recognized in Runyon v. McCrary that the statute applies to private contracting practices.30 30.See infra Part I; Runyon v. McCrary, 427 U.S. 160, 168 (1976); Restatement (Second) of Conts. (Am. L. Inst. 1981).Show More Still, seventy-four percent of contract law casebooks—which often stray beyond the common law and are frequently updated—do not cite the statute.31 31.See infra Section IV.B.Show More Many of those that do largely fail to discuss the statute’s history or contemporary applications.32 32.See infra Section IV.B.Show More

Finally, Part V addresses why taxonomy matters. Section V.A shows that Section 1981’s antidiscrimination rule has important implications for contract law theorists. Understanding Section 1981’s antidiscrimination mandate as part of contract law challenges libertarian and libertarian-adjacent views that treat the freedom to choose one’s contracting partners as sacrosanct, while favoring justice-oriented theories that treat equality and fairness as central to the domain. Understanding the statute as generating contract law also raises practical issues concerning how we maintain and impart knowledge about contract law’s content. Section V.B discusses these issues, arguing, first, that the comprehensive doctrinal summaries of contract law discussed in Part IV should be revised to reflect Section 1981’s rules against racial discrimination, and second, that law professors who teach contract law should consider incorporating a discussion of Section 1981 into their curriculum. Although this second recommendation is offered more tentatively,33 33.See infra Section V.B.Show More there is little reason to justify excluding Section 1981 from the legal community’s comprehensive doctrinal summaries of contract law—e.g., our casebooks, treatises, and Restatements—if Section 1981 indeed counts as an important part of contract law in the United States. Finally, Section V.B briefly discusses how understanding Section 1981 as part of contract law should impact how courts apply doctrines like unconscionability, the duty of good faith and fair dealing, and voidness as a matter of public policy. Once racial discrimination is understood as part of contract law’s purview, evaluating racial discrimination as relevant to doctrinal analysis elsewhere seems less far-fetched.

As noted above, scholars have long worried that contract law’s apparent indifference to race masks how our current commercial realities have been shaped by slavery and Jim Crow. That same indifference also obscures how racial bias continues to harm communities of color seeking to navigate modern markets. By the same token, if contract law does not take race into account formally, discussing race fruitfully while learning about and teaching contract law will remain an uphill battle because the conversation will seem forced. But reconceiving Section 1981 as a foundational part of contract law not only presents a more accurate picture of contract law in the United States, but it also connects our understandings of past racial injustices to present ones, as well as highlights the interface between “traditional” doctrines of contract law and those injustices. Recognizing Section 1981 as a foundational part of contract law will not eliminate racial biases or frictions in the market or undo persistently unequal bargaining power and wealth, which trace to this country’s sordid history of Black subordination.34 34.See generally Carliss Chatman, 1981, 82 Wash. & Lee L. Rev. (forthcoming 2025), https:/‌/papers.ssrn.com/sol3/papers.cfm?abstract_id=4998718 [https://perma.cc/M8ZD-3TKN].Show More But it may help lawyers better appreciate the ubiquity of the problem, as well as give them a more complete view of contract law’s content and a richer understanding of its ideals.

  1.  See Bowlin v. Lyon, 25 N.W. 766, 767–68 (Iowa 1885) (holding that a “colored man” who was denied entry into a skating rink solely because of his race was not entitled to admission given the rink’s discretion to contract with, or grant entry to, whomever it pleased); Noah D. Zatz, A Law and Political Economy Approach to Race, Gender, and Power in Contracts, in Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom 129, 133 (Nicole P. Dyszlewski, Raquel J. Gabriel, Suzanne Harrington-Steppen, Anna Russell & Genevieve B. Tung eds., 2021) (observing that “[i]n the classic common-law cases of refusal-to-contract, discrimination appears as purely private preference,” which courts treated on par with any other personal preference in the name of “evenhandedness”); Hila Keren, “We Insist! Freedom Now”: Does Contract Doctrine Have Anything Constitutional to Say?, 11 Mich. J. Race & L. 133, 142 (2005) [hereinafter Keren, We Insist! Freedom Now]; see also Orit Gan, Contract Law, Equality and the State, 72 Clev. St. L. Rev. 889, 892 (2024) (“[C]onventional wisdom holds that contract law has nothing to do with social equality.”); Deborah Zalesne, Racial Inequality in Contracting: Teaching Race as a Core Value, 3 Colum. J. Race & L. 23, 25 (2013) [hereinafter Zalesne, Racial Inequality in Contracting] (“Neoclassical contract theory embraces the idea of formal legal color blindness in assessing the validity of a contract, assuming that an individual’s race or ethnicity played no role in a contract’s formation or content.”). ↑
  2.  Zatz, supra note 1, at 132–33 (describing antidiscrimination law’s “startling omission from” and “neglect within contracts curricula”); Allan H. Macurdy, Classical Nostalgia: Racism, Contract Ideology, and Formalist Legal Reasoning in Patterson v. McLean Credit Union, 18 N.Y.U. Rev. L. & Soc. Change 987, 1024–25 (1990) (asserting that, although contract law monitors valid contractual relationships through a variety of doctrines, the ostensibly “private” nature of contract law makes “[a]ntidiscrimination principles . . . seem irrelevant to the business of conducting business, and are thus of low priority”); Gan, supra note 1, at 892 (describing, without endorsing, the claim that “[c]ontract law is private law and has nothing to do with anti-discrimination law”). ↑
  3.  Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 3 (1992) (describing antidiscrimination law as the “antithesis of freedom of contract”); Kirsten L. McCaw, Comment, Freedom of Contract Versus the Antidiscrimination Principle: A Critical Look at the Tension Between Contractual Freedom and Antidiscrimination Provisions, 7 Seton Hall Const. L.J. 195, 202–03 (1996). ↑
  4.  Dylan C. Penningroth, Race in Contract Law, 170 U. Pa. L. Rev. 1199, 1298–1300 (2022); see also Jeremiah A. Ho, Uncovering Bias: Teaching Contracts Critically, in Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom, supra note 1, at 121, 121–22. ↑
  5.  See, e.g., Patricia J. Williams, The Alchemy of Race and Rights 146–48 (1991); Meirav Furth-Matzkin, Discrimination in Contractual Performance: Theory, Evidence, and Preliminary Policy Prescriptions, 99 Wash. L. Rev. 1165, 1177–84 (2024) (summarizing evidence of selective enforcement of consumer contract terms). See generally, e.g., Ian Ayres, Pervasive Prejudice? Unconventional Evidence of Race and Gender Discrimination (2001) (arguing, with empirical support, that race and gender discrimination is not uncommon in retail markets); Shaun L. Gabbidon & George E. Higgins, Shopping While Black: Consumer Racial Profiling in America (2020) (describing the pervasiveness of racial discrimination in everyday retail transactions); Michelle R. Dunlap, Retail Racism: Shopping While Black and Brown in America (2021) (explaining that racial profiling and inequality are prevalent in “every marketplace imaginable”); Anne-Marie G. Harris, Shopping While Black: Applying 42 U.S.C. § 1981 to Cases of Consumer Racial Profiling, 23 B.C. Third World L.J. 1 (2003) (analyzing the frequency and causes of consumer racial profiling and identifying Section 1981 claims as a possible recourse for people who experience discrimination in the marketplace); Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, 94 Am. Econ. Rev. 991 (2004) (examining racial discrimination in employment contracts by demonstrating that the labor market favors individuals with “white-sounding” names over individuals with “African-American-sounding” names). ↑
  6.  See, e.g., Zalesne, Racial Inequality in Contracting, supra note 1, at 25 (“The apparent neutrality of contract law masks the distributive effects of legal rules.”). See generally, e.g., Keeanga-Yamahtta Taylor, Race for Profit: How Banks and the Real Estate Industry Undermined Black Homeownership (2019) (arguing that the public-private partnership between the real estate industry and the federal government in the late twentieth century exacerbated racial discrimination and residential segregation); Danielle Kie Hart, Contract Law & Racial Inequality: A Primer, 95 St. John’s L. Rev. 449 (2021) (arguing that, due to unequal bargaining power, contract law tends to increase material inequality in general, leading to material harm to marginalized groups). Discrimination in real estate appraisals, for example, straightforwardly impacts the wealth of Black homeowners. Jonathan Rothwell & Andre M. Perry, How Racial Bias in Appraisals Affects the Devaluation of Homes in Majority-Black Neighborhoods, Brookings Inst. (Dec. 5, 2022), https://www.brookings.edu/a‌rticles/how-racial-bias-in-appraisals-affects-the-devaluation-of-homes-in-majority-black-nei‌ghborhoods/ [https://perma.cc/A5HQ-43L8]; Heather R. Abraham, Appraisal Discrimination: Five Lessons for Litigators, 76 SMU L. Rev. 205, 215–19 (2023) (explaining some historic and modern mechanisms in the valuation process that lead to appraisal discrimination). For more on banking, see generally Mehrsa Baradaran, The Color of Money: Black Banks and the Racial Wealth Gap (2017) (explaining how the history of racial segregation in banking contributed to the racial wealth gap). ↑
  7.  Steven J. Burton, Racial Discrimination in Contract Performance: Patterson and a State Law Alternative, 25 Harv. C.R.-C.L. L. Rev. 431, 458–59 (1990) [hereinafter Burton, Racial Discrimination in Contract Performance]; Blake D. Morant, The Relevance of Race and Disparity in Discussions of Contract Law, 31 New Eng. L. Rev. 889, 897 (1997) (noting the existence of “contract law’s objective facade” which can obscure the role that “issues of disparity,” like racial discrimination, play in the contract process); Deborah Zalesne, The (In)Visibility of Race in Contracts: Thoughts for Teachers, ContractsProf Blog (July 8, 2020) [hereinafter Zalesne, The (In)Visibility of Race in Contracts], https://www.contractsprofblog.‌com/2020/07/deborah-zalesne-the-invisibility-of-race-in-contracts-thoughts-for-teachers/ [htt‌ps://perma.cc/TTW3-4HPL]. ↑
  8.  See Duncan Kennedy, The Bitter Ironies of Williams v. Walker-Thomas Furniture Co. in the First Year Law School Curriculum, 71 Buff. L. Rev. 225, 236 (2023). ↑
  9.  Id. at 236–37; see also Zalesne, Racial Inequality in Contracting, supra note 1, at 34; Amy H. Kastely, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law, 63 U. Cin. L. Rev. 269, 307 (1994). See generally Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965). ↑
  10.  ContractsProf Blog devotes several posts to the question of how to raise the topics of race and racism in first-year courses in contract law. See, e.g., Charles Calleros, Talking About Race in the Contracts Course: Interface with Civil Rights Laws, Part I—Mutual Assent, ContractsProf Blog (June 15, 2020), https://www.contractsprofblog.com/2020/06/guest-post-by-charles-calleros-talking-about-race-in-the-contracts-course-interface-with-civil-right/ [htt‌ps://perma.cc/XL9Y-HYYD]; Charles Calleros, Talking About Race in the Contracts Course: Interface with Civil Rights Laws, Part II—Consideration, ContractsProf Blog (June 16, 2020), https://www.contractsprofblog.com/2020/06/guest-post-by-charles-calleros-talking-about-ra‌ce-in-the-contracts-course-interface-with-civil-right-1/ [https://perma.cc/P39Q-CNTQ]; Zalesne, The (In)Visibility of Race in Contracts, supra note 7. ↑
  11.  See Zalesne, Racial Inequality in Contracting, supra note 1, at 25–26; Chaumtoli Huq, Integrating a Racial Capitalism Framework into First-Year Contracts: A Pathway to Anti-Capitalist Lawyering, 35 J.C.R. & Econ. Dev. 181, 195 (2022) (asserting that “neutral discussions of core contracts principles, such as the unenforceability of gratuitous promises, consideration, and reliance, obscure how law maintains racial and economic subordination”); Marissa Jackson Sow, Whiteness as Contract, 78 Wash. & Lee L. Rev. 1803, 1829 (2022). ↑
  12.  Zalesne, Racial Inequality in Contracting, supra note 1, at 25–26 (asserting that assumptions of legal reasoning in contract law doctrine conceal bias); Huq, supra note 11, at 195–97 (citing Kirksey v. Kirksey, 8 Ala. 131 (1845)) (arguing that the traditional analysis of the formal contract doctrines presented in the classic Kirksey case conceals background “ploys of power and racial subordination”); see also Kastely, supra note 9, at 306 (arguing that Williams v. Walker-Thomas Furniture Co., a classic unconscionability case, fails to make explicit in its unconscionability analysis that the predatory contracts at issue involved “exploitation of low-income people of color . . . enabled in part by racist barriers”). ↑
  13.  See generally 42 U.S.C. §§ 2000e–2000e-17 (prohibiting various types of employment discrimination). ↑
  14.  See generally id. §§ 3601–3619, 3631 (prohibiting housing discrimination). ↑
  15.  See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 492–94 (1954) (holding that the racial segregation of children in public schools is unconstitutional). ↑
  16.  15 U.S.C. §§ 1691–1691f (prohibiting lending discrimination). ↑
  17.  Penningroth, supra note 4, at 1211–16, 1273; Brittany Farr, Breach by Violence: The Forgotten History of Sharecropper Litigation in the Post-Slavery South, 69 UCLA L. Rev. 674, 681–82 (2022). ↑
  18.  Professor Deborah Zalesne, however, does seem to challenge the assumption that contract law ignores race and racial discrimination in Zalesne, Racial Inequality in Contracting, supra note 1, at 24–25 (“[A] complete understanding of contract disputes routinely requires an analysis of the effects of inequality, including race dynamics, on parties’ bargaining choices.”). Although Zalesne correctly observes that courts have raised the issue of inequality of bargaining power in the context of applying the unconscionability doctrine, she does not show that courts routinely appeal to underlying racial dynamics in their legal reasoning. See generally id. See also Justin Driver, Recognizing Race, 112 Colum. L. Rev. 404, 449 (2012) (arguing that applying unconscionability in the Williams v. Walker-Thomas Furniture Co. case does not require reckoning with race). For one unconscionability case that notes racial disparities without disclosing the racial identities of the litigants, see State ex rel. King v. B & B Inv. Grp., Inc., 2014-NMSC-024, ¶¶ 13–17, 329 P.3d 658, 665–66. ↑
  19.  42 U.S.C. § 1981(a)–(c). ↑
  20.  Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27 (codified as amended at 42 U.S.C. §§ 1981–1982, 1988–1989); Civil Rights Act of 1991, Pub. L. No. 102-166, § 101, 105 Stat. 1071, 1071–72 (codified as amended at 42 U.S.C. § 1981). ↑
  21.  See infra Part I. ↑
  22.  See infra Part I. ↑
  23.  See infra Part I. ↑
  24.  See infra Part II. ↑
  25.  42 U.S.C. § 1981(b). ↑
  26.  See infra Part II. ↑
  27.  See infra Section V.A. ↑
  28.  See infra Part IV. ↑
  29.  See infra Section III.B. ↑
  30.  See infra Part I; Runyon v. McCrary, 427 U.S. 160, 168 (1976); Restatement (Second) of Conts. (Am. L. Inst. 1981). ↑
  31.  See infra Section IV.B. ↑
  32.  See infra Section IV.B. ↑
  33.  See infra Section V.B. ↑

  34.  See generally Carliss Chatman, 1981, 82 Wash. & Lee L. Rev. (forthcoming 2025), https:/‌/papers.ssrn.com/sol3/papers.cfm?abstract_id=4998718 [https://perma.cc/M8ZD-3TKN]. ↑

The Practice of Executive Constitutionalism

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

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    art

    . II, § 1,

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

    art

    . VI,

    cl. 3. ↑

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

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

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