Sex Discrimination Formalism

Critics of antidiscrimination law have long lamented that the Supreme Court is devoted to a shallow, formal version of equality that fails to account for substantive inequities and stands in the way of affirmative efforts to remediate systemic injustice. But these criticisms are primarily focused on the Supreme Court’s interpretations of race discrimination law. The Court’s most recent foray into statutory sex discrimination law, Bostock v. Clayton County, employed formalistic reasoning to move the law in an expansive direction, interpreting Title VII’s sex discrimination provision to prohibit discrimination against lesbian, gay, and transgender employees. Examining post-Bostock developments, this Article asks whether formal equality might have more potential to advance civil rights than previously thought. It argues that “formal equality” is not a single legal inquiry; rather, in practice, it takes the form of at least three distinct tests. These tests lead to different results in different sex discrimination controversies, such as whether it is discrimination to treat someone adversely for being bisexual or nonbinary; to single out pregnancy, menstruation, breasts, or other aspects of reproductive biology for disparate treatment; to enforce sex-specific dress codes; to exclude transgender people from restrooms consistent with their gender identities; to ban gender-affirming health care; or to restrict who can change the sex designations on their identity documents. Although no formal test neatly maps onto prevailing normative theories and sociological insights about what discrimination is, in recent cases, courts have used formal tests to achieve results consistent with those theories. This account suggests that, rather than insisting that courts adopt substantive tests, civil rights scholars might reconsider the virtues of formalism.

“Equality, in the abstract, has no limits; it is forever demanding to be carried to its ultimate logical conclusions.”1.Kenneth L. Karst, The Supreme Court, 1976 Term—Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 39 (1977).Show More

Introduction

The law of race discrimination is mired in what critics call “formal equality”: an ahistorical, decontextualized vision of equality law that ignores the social, economic, and political realities of systemic racial inequality and treats affirmative action as the moral equivalent of 1950s-style segregation.2.See, e.g., Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. Rev. 1779, 1784 (2012) (“[D]iscriminatory intent doctrine excludes evidence of continued discrimination against non-Whites rooted in history, contemporary practices, and social science . . . . Meanwhile, . . . colorblindness similarly closes courthouse doors to evidence showing that state actors sometimes use race to break down inequality and to foster integration.”); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1113 (1997) (criticizing “[c]ontemporary equal protection law” because it “is premised on a formal and historically static conception of ‘discrimination’” focused on “classification” or “discriminatory purpose—a concept the Court has defined as tantamount to malice”).Show More As a result, antidiscrimination scholars are almost uniformly scornful of formal equality, proposing that it be replaced with more substantive definitions of discrimination attuned to context;3.See, e.g., Haney-López, supranote 2, at1876 (proposing a “contextual intent” test).Show More social, historical, and cultural meanings;4.See, e.g., Issa Kohler-Hausmann, Eddie Murphy and the Dangers of Counterfactual Causal Thinking About Detecting Racial Discrimination, 113 Nw. U. L. Rev. 1163, 1166, 1172 (2019) (arguing for a definition that accounts for “the system of social meanings or practices” that constitute social categories such as race and sex); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 355–56 (1987) (proposing a “cultural meaning” test that “would evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance” and “considering evidence regarding the historical and social context in which the decision was made and effectuated”).Show More systemic and accumulated group-based disadvantages;5.See, e.g., Richard Thompson Ford, Bias in the Air: Rethinking Employment Discrimination Law, 66 Stan. L. Rev. 1381, 1384 (2014) (“[T]he law should replace the conceptually elusive goal of eliminating discrimination with the more concrete goal of requiring employers, government officials, and other powerful actors to meet a duty of care to avoid unnecessarily perpetuating social segregation or hierarchy.”); Siegel, supranote 2, at1146 (suggesting that equal protection doctrine might require scrutiny for “facially neutral policies” that “perpetuate, or aggravate, historic patterns of race and gender inequality”).Show More or “costs and benefits of alternative proposals in each specific setting.”6.See, e.g., R. Richard Banks, Class and Culture: The Indeterminacy of Nondiscrimination, 5 Stan. J. C.R. & C.L. 1, 3 (2009) (“[W]e should approach race-related policy disputes in a pragmatic manner, weighing the costs and benefits of alternative proposals in each specific setting.”).Show More

By contrast to the atrophy of race discrimination law through formalism, the law of sex discrimination seems relatively vibrant. In its landmark decision in Bostock v. Clayton County, the Roberts Court ruled that discrimination on the basis of “sex” under Title VII of the Civil Rights Act includes discrimination against lesbian, gay, and transgender workers.7.140 S. Ct. 1731, 1737 (2020).Show More But that decision’s reasoning is not based in any sort of contextual or historically grounded understanding of gender-based subordination.8.Id.at 1750–51 (denying the relevance of history and pointing out that “applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees in the 1960s—often may be seen as unexpected”).Show More Rather, it relied on a formal, sterile, individualistic concept of “but-for” causation—“if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.”9.Id. at 1741.Show More Thus, if an employer would not fire a woman for being attracted to men, that employer may not fire a man for being attracted to men.10 10.Id. The same argument works for the transgender employees—for example, a transgender woman may not be penalized for having traits that would be acceptable in an employee who was assigned female at birth. Id.Show More Lower courts have extended Bostock to new contexts, holding, for example, that it requires that schools allow transgender children to use restrooms consistent with their gender identities,11 11.See, e.g., infraSubsection II.A.1 (discussing Grimm v. Gloucester County School Board, 972 F.3d 586, 616, 619 (4th Cir. 2020) (affirming summary judgment in favor of a transgender plaintiff on equal protection and Title IX claims), cert. denied, 141 S. Ct. 2878 (2021)).Show More forbids an employer from firing an employee because her tampon triggered a security scanner,12 12.SeeinfraSubsection II.A.2 (discussing Flores v. Virginia Department of Corrections, No. 20-cv-00087, 2021 WL 668802, at *6 (W.D. Va. Feb. 22, 2021) (denying summary judgment in a sex discrimination case in which an employee was fired when her tampon set off a security scanner triggering the false suspicion that she was smuggling contraband)).Show More and bars schools from imposing dress codes requiring girls to wear skirts.13 13.See, e.g., infraSubsection II.A.1 (discussing Peltier v. Charter Day School, Inc., 37 F.4th 104 (4th Cir. 2021) (en banc) (affirming grant of summary judgment to plaintiffs on § 1983 equal protection claim and reversing grant of summary judgment to school on Title IX claim challenging discriminatory dress code)).Show More

This Article argues that Bostock’s but-for test is an example of a broader phenomenon that it describes as “sex discrimination formalism”: attempts to define intentional sex discrimination according to formal, abstract, logical tests, minimizing consideration of social realities and normative values.14 14.I define discrimination formalism more precisely infra Section I.A. Cf.Morton J. Horwitz, The Transformation of American Law, 1780–1860, at 254 (1977) (discussing “legal formalism” as “an intellectual system which gave common law rules the appearance of being self-contained, apolitical, and inexorable, and which, by making ‘legal reasoning seem like mathematics,’ conveyed ‘an air . . . of . . . inevitability’ about legal decisions”). I do not suggest formal rules succeed at perfect abstraction or constraint; formalism is a matter of degree. See, e.g., Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. Chi. L. Rev. 636, 640 (1999) (“The real question is ‘what degree of formalism?’ rather than ‘formalist or not?’”).Show More It identifies and examines abstract tests used by courts to determine what types of reasons count as intentional sex discrimination in various constitutional and statutory contexts and assesses how those tests work in particular cases. Contrary to the consensus view among civil rights scholars that formalism is anathema to equality,15 15.See, e.g.,supranotes 2, 4, 6 and accompanying text. But cf.Mary Anne Case,“The Very Stereotype the Law Condemns”: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1448–52 (2000) (characterizing equal protection cases on sex as standing for the formalistic rule that, when a law, on its face, treats men and women differently, it may not be based on a generalization that would be untrue for even a single individual man or woman, and arguing that, if courts took this rule seriously, it would lead “in interesting and radical directions” like marriage equality).Show More this Article argues that recent cases relying on formal tests have expanded the reach of sex discrimination law to forms of gender inequality overlooked in the past.

One contribution of this Article is to offer a typology of formal tests of disparate treatment. Much scholarship on discrimination law assumes that there are only two modes for thinking about equality: formal and substantive, and that all formal rules are the same.16 16.See, e.g.,Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Pathological Racism, Chronic Racism & Targeted Universalism, 109 Calif. L. Rev. 1107, 1111 (2021) (discussing the “standard doctrinal account,” which lumps together concerns about formal equality and anticlassification in equal protection law);cf.Aziz Z. Huq, What Is Discriminatory Intent?, 103 Cornell L. Rev. 1211, 1223–24 (2018) (“Questions of how discriminatory intent is defined and proved tend to be ancillary and subordinate to a larger critique of the ideological orientation of the doctrine.”).Show More This Article argues there are at least three distinct types of formal rules when it comes to intentional sex discrimination: (1) but-for causation, which asks whether mistreatment would have befallen an individual if their sex were different; (2) anticlassification rules, also referred to as “blindness,”17 17.This is a problematic metaphor, for, among other reasons, the fact that blind people do see race. See generally Osagie Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (2013).Show More which ask whether a decision-maker acted pursuant to an explicit or implicit policy that considers sex; and (3) “similarly situated” rules, which forbid decision-makers from treating individuals of different sexes who are alike in all relevant respects differently. Importantly, these heuristics for determining discriminatory intent do not require proof of the specific motives of discriminators.18 18.Cf.Pers. Adm’r v. Feeney, 442 U.S. 256, 279 (1979) (“‘Discriminatory purpose’ . . . implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”).Show More While ostensibly aimed at discerning the same core phenomenon—discriminatory intent—these tests have taken on lives of their own in the case law as independent legal “theories” or “claims.” They most often point to the same result, but in a subset of difficult cases, the choice of formal rule can change the outcome. For example, one district judge, a Republican appointee, concluded that Bostock’s but-for test would not count discrimination on the basis of bisexuality as sex discrimination, but an anticlassification inquiry that requires decisions that are “blind” to sex would.19 19.Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571, 622 (N.D. Tex. 2021) (concluding that an employer who discriminates on the basis of bisexuality is not discriminating on the basis of sex under “[t]he traditional but-for ‘favoritism’ analyses,” but is failing to act in a way that is “‘blind’ to sex”), vacated sub nom. Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 940 (5th Cir. 2023). Ideology is unlikely to be the explanation for this twist in reasoning. The district court judge, Reed O’Connor, was appointed by President George W. Bush, and is known for striking down the policies of the Biden and Obama administrations. Tierney Sneed, Judge Notorious for Anti-Obamacare Rulings Has Another Crack, CNN (Jan. 28, 2022, 7:56 AM), https://www.cnn.com/2022/01/28/politics/obamacare-reed-oconnor-biden-doj-health/index.html [https://perma.cc/H3G3-TMDH].Show More

Another contribution of this Article is to offer an assessment of the reach of these various formal tests, relevant to next-generation sex discrimination disputes. While scholars have debated the theoretical potential of Bostock’s but-for inquiry,20 20.CompareKatie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621, 1624–25 (2021) (applauding the but-for theory on the ground that it clarifies disparate treatment law and avoids the intent requirement), withRobin Dembroff & Issa Kohler-Hausmann, Supreme Confusion About Causality at the Supreme Court, 25 CUNY L. Rev. 57, 58 (2022) (arguing thatBostock’s but-for test is incoherent and “threaten[s] to limit the reach of antidiscrimination law”), Benjamin Eidelson, Dimensional Disparate Treatment, 95 S. Cal. L. Rev. 785, 794 (2022) (arguing that rather than clarifying disparate treatment law, the but-for theory compounds confusion, is not justified by statutory text, and leads to “untenable results”), and Guha Krishnamurthi, Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law, 108 Va. L. Rev. Online 1, 4, 11 (2022) (arguing “that the Court’s simple but-for causation test, by its own lights, does not advance anti-discrimination law”).Show More they have not examined how judges are applying it in new contexts. Nor have they compared the but-for rule to other formal rules on the ground. In just over three years, Bostock has been cited by almost a thousand cases.21 21.According to the Westlaw database, Bostock had been cited by 962 federal and state cases as of October 1, 2023.Show More This Article discusses more than fifty cases decided since Bostock that are related to arguably novel or potentially controversial applications of sex discrimination doctrine.22 22.This Article reviews cases through October 1, 2023.Show More It examines these decisions from the inside out,23 23.While this is a work of legal scholarship, I draw loose inspiration from anthropological methods. Cf.Annelise Riles, The Network Inside Out 6, 16, 19 (2000) (describing an ethnographic method that attempts to gain access to modern knowledge practices from within, beginning by rendering familiar and mundane artifacts visible for analysis, in contexts in which “thick description” is challenging “because the phenomena are dispersed and the cultures are many”); Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 Buff. L. Rev. 973, 1029–30 (2005) (urging “that the cultural study of legal technology make a methodological commitment not to reduce technology to the politics, culture, history, or personalities surrounding it—that we take the agency of technological form seriously, as a subject on its own terms, as the legal engineers among us do”).Show More endeavoring to see how their reasoning works, to take it seriously, and to hypothesize about where it might go.

This analysis reveals that courts extending sex discrimination law are foregrounding formal rules as the reasons for their decisions, not sociological arguments about the nature of discrimination or feminist or other such normative theories of the harms of discrimination.24 24.Bostock itself is an example. Cary Franklin, Living Textualism, 2020 Sup. Ct. Rev. 119, 143 n.106 (pointing out that Bostock could have been justified based on “antisubordinationist and anti-stereotyping arguments,” but these arguments “necessitate more analytical work than the simple anticlassificationist argument, and conservatives generally reject them”).Show More Formal rules can sometimes circumvent roadblocks to antidiscrimination projects, such as judgments that traits that are unique to men or women cannot be the bases for discrimination,25 25.See infraSubsection II.A.2.Show More that certain groups and individuals are too blameworthy to deserve protection,26 26.See supranote 8 (quoting Bostock v. Clayton County, 140 S. Ct. 1731, 1750 (2020)).Show More or that discriminatory practices are justified by tradition or convention.27 27.See infra Subsection II.A.1.Show More The results are not always what would be expected based on crude measures of judicial ideology.28 28.See, e.g., supranote 19. I note the political affiliations of judges throughout this Article.Show More But a close look at post-Bostock cases reveals that rather than applying formal tests with the rigor of a philosopher, judges apply them with some plasticity, reaching situations that strike them as substantively unfair. Moreover, while courts extending sex discrimination law to new contexts often gesture to Bostock’s but-for inquiry, they are more likely to rely on anticlassification and similarly situated rules. A similarly situated inquiry, which asks whether people are alike in relevant respects, has been particularly prominent in transgender rights litigation.29 29.See infra Subsection II.A.1.Show More

But formalism also has well-known drawbacks. Abstract tests of discrimination suffer from the flaws of all formalistic legal reasoning: they are, to varying degrees, indeterminate, requiring that judges rely on normative and empirical premises to apply them, but deny that they are doing so,30 30.This is a standard criticism of legal formalism. See, e.g., Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 820 (1935) (“In every field of law we should find peculiar concepts which are not defined either in terms of empirical fact or in terms of ethics but which are used to answer empirical and ethical questions alike, and thus bar the way to intelligent investigation of social fact and social policy.”).Show More and they are both over- and underinclusive.31 31.See, e.g., Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1701 (1976) (“The more general and the more formally realizable the rule, the greater the equitable pull of extreme cases of over- or underinclusion.”); Frederick Schauer, Formalism, 97 Yale L.J. 509, 510, 535 (1988) (describing formalism as “the concept of decisionmaking according to rule,” and pointing out that “it is exactly a rule’s rigidity, even in the face of applications that would ill serve its purpose, that renders it a rule”).Show More This Article does not make any broad claims about the causal role of formal legal reasoning in judicial decision-making—causation is complex and context specific. It is also not a brief in support of discrimination formalism as a tool of progressive politics—what tools movement lawyers of any political persuasion ought to use will depend on the circumstances. Nor does it argue that sex discrimination formalism achieves rule of law aspirations such as determinacy, predictability, or judicial constraint—particularly not in legal disputes that implicate acute ideological conflicts. Rather, this Article attempts, to the extent possible, to offer a thick description32 32.See supranote 23.Show More of how thin legal rules33 33.Cf.Toni M. Massaro, Gay Rights, Thick and Thin, 49 Stan. L. Rev. 45, 46–47 (1996) (contrasting “thin” doctrinal arguments that appeal to “principles of neutrality” with “thick” arguments that ask judges to “define, or appear to endorse,” particular sexual orientations).Show More operate in a discrete set of cases. It contributes to scholarly criticism of formalism in discrimination law by arguing that, like unhappy families, each of the various formal tests is problematic in its own way. It departs from those criticisms in disputing that a wholesale move toward more substantive inquiries of the sort favored by most progressive scholars would achieve those scholars’ ultimate aspirations for the law. This Article does not endeavor to advance any one single theory of discrimination law, which is a “ramshackle institution, full of compromise and contradiction.”34 34.Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1, 16 (2000).Show More Rather, it adds to the evidence that a unified theory is not normatively desirable.35 35.See, e.g., Banks, supranote 6, at19 (“The effort to arrive at a unitary conception of discrimination would be misguided even if an authoritative single decision maker—say, the United States Supreme Court—propounded the definition. Any single definition would fail to account for the distinctive features of the various settings where claims of racial discrimination might arise.”); Huq, supranote 16, at 1240 (explaining that discriminatory intent is “unavoidabl[y]” “protean and plural”); George Rutherglen, Disaggregated Discrimination and the Rise of Identity Politics, 26 Wm. & Mary J. Race, Gender & Soc. Just. 391, 394–95 (2020) (arguing that the multiplicity of plausible philosophical theories of the wrong of discrimination and “discrepancies” in legal doctrines “counsel against the quest for uniformity based on the essential nature of discrimination”).Show More

Questions about the meaning of sex discrimination are timely as courts resolve issues involving the scope of LGBTQ+ rights after Bostock and the constitutionality of legal restrictions on abortion after Dobbs.36 36.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).Show More Bostock did not address whether its holding would apply to dress codes, restrooms, health care, and many other topics—controversies now being resolved by federal courts.37 37.Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020); id.at 1778–83 (Alito, J., dissenting) (noting these among “some of the potential consequences” of Bostock).Show More While transgender litigants racked up an impressive win rate through 2021,38 38.Katie Eyer, Transgender Constitutional Law, 171 U. Pa. L. Rev. 1405, 1405, 1408 (2023) (surveying constitutional transgender rights cases from 2017–2021 and concluding that “recent transgender rights litigation has resulted in important and consistent victories for transgender constitutionalism in the lower and state courts”).Show More results since have been mixed.39 39.There have been significant recent losses. See, e.g., Williams ex rel. L.W. v. Skrmetti, No. 23-5600, 2023 WL 6321688, at *23 (6th Cir. Sept. 28, 2023) (reversing grants of preliminary injunctions against Kentucky and Tennessee laws barring gender-affirming health care for transgender minors); Eknes-Tucker v. Governor of Ala., No. 22-11707, 2023 WL 5344981, at *1 (11th Cir. Aug. 21, 2023) (vacating district court’s preliminary injunction of Alabama law prohibiting gender-affirming health care for transgender minors); Kasper ex rel. Adams v. Sch. Bd., 57 F.4th 791, 799–800 (11th Cir. 2022) (en banc) (reversing district court’s conclusions, following a bench trial, that school policy barring a transgender boy from the boys’ restroom violated the Equal Protection Clause and Title IX); Fowler v. Stitt, No. 22-cv-00115, 2023 WL 4010694, at *24 (N.D. Okla. June 8, 2023) (granting motion to dismiss challenge to state policy prohibiting transgender individuals from changing the sex designations on their birth certificates), appeal docketed, No. 23-5080 (10th Cir. July 7, 2023); Gore v. Lee, No. 19-cv-00328, 2023 WL 4141665, at *37 (M.D. Tenn. June 22, 2023) (similar), appeal docketed, No. 23-5669 (6th Cir. July 26, 2023); B.P.J. v. W. Va. State Bd. of Educ., No. 21-cv-00316, 2023 WL 111875, at *10 (S.D. W. Va. Jan. 5, 2023) (denying transgender litigant’s motion for summary judgment in case challenging law forbidding transgender girls from playing girls’ sports in school), argued, No. 23-1078 (4th Cir. Oct. 27, 2023); A.H. ex rel. D.H. v. Williamson Cnty. Bd. of Educ., 638 F. Supp. 3d 821, 837 (M.D. Tenn. Nov. 2, 2022) (denying preliminary injunction in case challenging Tennessee state law barring transgender schoolchildren from using restrooms consistent with their gender identities).Show More Most notably, a 2022 en banc decision by the Eleventh Circuit rejected a “cornucopia” of formal theories advanced by a transgender student in a case over restroom access.40 40.Adams, 57 F.4th at 846 n.13 (Jill Pryor, J., dissenting) (describing six distinct theories that the majority rejected).Show More While Dobbs addressed equal protection issues, its statements on that question are dicta.41 41.Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 68, 93 (2022) (noting that the parties had not asserted an equal protection claim in Dobbs and observing that “Justice Alito’s attempt to block an equal protection claim that was not even before the Court in Dobbs is evidence of equality’s power, not its weakness”).Show More State courts are now resolving equal protection challenges to abortion bans under their own state constitutions.42 42.SeePlanned Parenthood of the Great Nw. v. State, 522 P.3d 1132, 1198–200 (Idaho 2023) (rejecting equal protection challenges to Idaho law restricting abortion); Siegel et al., supranote 41, at 95–96 (discussing state court decisions on the right to abortion as a matter of gender equality).Show More Yet few scholars are focused “on questions of equal protection and pregnancy.”43 43.Siegel et al., supranote 41, at 73–74 (explaining that “[t]his is because, for decades, the question has been buried under the substantive due process doctrines regulating abortion . . . , and under federal statutes that prohibit pregnancy discrimination, including by government actors”).Show More

This Article proceeds in four Parts. Part I defines discrimination formalism, explains its importance, and offers a typology of formal theories of disparate treatment. Part II argues that courts are relying on formalistic tests to expand sex discrimination law in several contested contexts, including debates over discrimination based on bisexuality, nonbinary gender, menstruation, genitalia, and other aspects of reproductive biology, and sex-segregated restrooms, dress codes, and other such policies. It asks whether various formal tests have potential to further expand sex discrimination law on these issues, and explains the reasons for the appeal of formal over substantive inquiries. Part III probes the limits of sex discrimination formalism and addresses potential criticisms of formal rules. Part IV draws out lessons from this account for debates over formal equality and the future of civil rights law.

  1.  Kenneth L. Karst, The Supreme Court, 1976 Term—Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 39 (1977).
  2.  See, e.g., Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. Rev. 1779, 1784 (2012) (“[D]iscriminatory intent doctrine excludes evidence of continued discrimination against non-Whites rooted in history, contemporary practices, and social science . . . . Meanwhile, . . . colorblindness similarly closes courthouse doors to evidence showing that state actors sometimes use race to break down inequality and to foster integration.”); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1113 (1997) (criticizing “[c]ontemporary equal protection law” because it “is premised on a formal and historically static conception of ‘discrimination’” focused on “classification” or “discriminatory purpose—a concept the Court has defined as tantamount to malice”).
  3.  See, e.g., Haney-López, supra note 2, at 1876 (proposing a “contextual intent” test).
  4.  See, e.g., Issa Kohler-Hausmann, Eddie Murphy and the Dangers of Counterfactual Causal Thinking About Detecting Racial Discrimination, 113 Nw. U. L. Rev. 1163, 1166, 1172 (2019) (arguing for a definition that accounts for “the system of social meanings or practices” that constitute social categories such as race and sex); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 355–56 (1987) (proposing a “cultural meaning” test that “would evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance” and “considering evidence regarding the historical and social context in which the decision was made and effectuated”).
  5.  See, e.g., Richard Thompson Ford, Bias in the Air: Rethinking Employment Discrimination Law, 66 Stan. L. Rev. 1381, 1384 (2014) (“[T]he law should replace the conceptually elusive goal of eliminating discrimination with the more concrete goal of requiring employers, government officials, and other powerful actors to meet a duty of care to avoid unnecessarily perpetuating social segregation or hierarchy.”); Siegel, supra note 2, at 1146 (suggesting that equal protection doctrine might require scrutiny for “facially neutral policies” that “perpetuate, or aggravate, historic patterns of race and gender inequality”).
  6.  See, e.g., R. Richard Banks, Class and Culture: The Indeterminacy of Nondiscrimination, 5 Stan. J. C.R. & C.L. 1, 3 (2009) (“[W]e should approach race-related policy disputes in a pragmatic manner, weighing the costs and benefits of alternative proposals in each specific setting.”).
  7.  140 S. Ct. 1731, 1737 (2020).
  8.  Id. at 1750–51 (denying the relevance of history and pointing out that “applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees in the 1960s—often may be seen as unexpected”).
  9.  Id. at 1741.
  10.  Id. The same argument works for the transgender employees—for example, a transgender woman may not be penalized for having traits that would be acceptable in an employee who was assigned female at birth. Id.
  11.  See, e.g., infra Subsection II.A.1 (discussing Grimm v. Gloucester County School Board, 972 F.3d 586, 616, 619 (4th Cir. 2020) (affirming summary judgment in favor of a transgender plaintiff on equal protection and Title IX claims), cert. denied, 141 S. Ct. 2878 (2021)).
  12.  See infra Subsection II.A.2 (discussing Flores v. Virginia Department of Corrections, No. 20-cv-00087, 2021 WL 668802, at *6 (W.D. Va. Feb. 22, 2021) (denying summary judgment in a sex discrimination case in which an employee was fired when her tampon set off a security scanner triggering the false suspicion that she was smuggling contraband)).
  13.  See, e.g., infra Subsection II.A.1 (discussing Peltier v. Charter Day School, Inc., 37 F.4th 104 (4th Cir. 2021) (en banc) (affirming grant of summary judgment to plaintiffs on § 1983 equal protection claim and reversing grant of summary judgment to school on Title IX claim challenging discriminatory dress code)).
  14.  I define discrimination formalism more precisely infra Section I.A. Cf. Morton J. Horwitz, The Transformation of American Law, 1780–1860, at 254 (1977) (discussing “legal formalism” as “an intellectual system which gave common law rules the appearance of being self-contained, apolitical, and inexorable, and which, by making ‘legal reasoning seem like mathematics,’ conveyed ‘an air . . . of . . . inevitability’ about legal decisions”). I do not suggest formal rules succeed at perfect abstraction or constraint; formalism is a matter of degree. See, e.g., Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. Chi. L. Rev. 636, 640 (1999) (“The real question is ‘what degree of formalism?’ rather than ‘formalist or not?’”).
  15.  See, e.g., supra notes 2, 4, 6 and accompanying text. But cf. Mary Anne Case, “The Very Stereotype the Law Condemns”: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1448–52 (2000) (characterizing equal protection cases on sex as standing for the formalistic rule that, when a law, on its face, treats men and women differently, it may not be based on a generalization that would be untrue for even a single individual man or woman, and arguing that, if courts took this rule seriously, it would lead “in interesting and radical directions” like marriage equality).
  16.  See, e.g., Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Pathological Racism, Chronic Racism & Targeted Universalism, 109 Calif. L. Rev. 1107, 1111 (2021) (discussing the “standard doctrinal account,” which lumps together concerns about formal equality and anticlassification in equal protection law); cf. Aziz Z. Huq, What Is Discriminatory Intent?, 103 Cornell L. Rev. 1211, 1223–24 (2018) (“Questions of how discriminatory intent is defined and proved tend to be ancillary and subordinate to a larger critique of the ideological orientation of the doctrine.”).
  17.  This is a problematic metaphor, for, among other reasons, the fact that blind people do see race. See generally Osagie Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (2013).
  18.  Cf. Pers. Adm’r v. Feeney, 442 U.S. 256, 279 (1979) (“‘Discriminatory purpose’ . . . implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”).
  19.  Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571, 622 (N.D. Tex. 2021) (concluding that an employer who discriminates on the basis of bisexuality is not discriminating on the basis of sex under “[t]he traditional but-for ‘favoritism’ analyses,” but is failing to act in a way that is “‘blind’ to sex”), vacated sub nom. Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 940 (5th Cir. 2023). Ideology is unlikely to be the explanation for this twist in reasoning. The district court judge, Reed O’Connor, was appointed by President George W. Bush, and is known for striking down the policies of the Biden and Obama administrations. Tierney Sneed, Judge Notorious for Anti-Obamacare Rulings Has Another Crack, CNN (Jan. 28, 2022, 7:56 AM), https://www.cnn.com/2022/01/28/politics/obamacare-reed-oconnor-biden-doj-health/index.html [https://perma.cc/H3G3-TMDH].
  20.  Compare Katie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621, 1624–25 (2021) (applauding the but-for theory on the ground that it clarifies disparate treatment law and avoids the intent requirement), with Robin Dembroff & Issa Kohler-Hausmann, Supreme Confusion About Causality at the Supreme Court, 25 CUNY L. Rev. 57, 58 (2022) (arguing that Bostock’s but-for test is incoherent and “threaten[s] to limit the reach of antidiscrimination law”), Benjamin Eidelson, Dimensional Disparate Treatment, 95 S. Cal. L. Rev. 785, 794 (2022) (arguing that rather than clarifying disparate treatment law, the but-for theory compounds confusion, is not justified by statutory text, and leads to “untenable results”), and Guha Krishnamurthi, Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law, 108 Va. L. Rev. Online 1, 4, 11 (2022) (arguing “that the Court’s simple but-for causation test, by its own lights, does not advance anti-discrimination law”).
  21.  According to the Westlaw database, Bostock had been cited by 962 federal and state cases as of October 1, 2023.
  22.  This Article reviews cases through October 1, 2023.
  23.  While this is a work of legal scholarship, I draw loose inspiration from anthropological methods. Cf. Annelise Riles, The Network Inside Out 6, 16, 19 (2000) (describing an ethnographic method that attempts to gain access to modern knowledge practices from within, beginning by rendering familiar and mundane artifacts visible for analysis, in contexts in which “thick description” is challenging “because the phenomena are dispersed and the cultures are many”); Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 Buff. L. Rev. 973, 1029–30 (2005) (urging “that the cultural study of legal technology make a methodological commitment not to reduce technology to the politics, culture, history, or personalities surrounding it—that we take the agency of technological form seriously, as a subject on its own terms, as the legal engineers among us do”).
  24.  Bostock itself is an example. Cary Franklin, Living Textualism, 2020 Sup. Ct. Rev. 119, 143 n.106 (pointing out that Bostock could have been justified based on “antisubordinationist and anti-stereotyping arguments,” but these arguments “necessitate more analytical work than the simple anticlassificationist argument, and conservatives generally reject them”).
  25.  See infra Subsection II.A.2.
  26.  See supra note 8 (quoting Bostock v. Clayton County, 140 S. Ct. 1731, 1750 (2020)).
  27.  See infra Subsection II.A.1.
  28.  See, e.g., supra note 19. I note the political affiliations of judges throughout this Article.
  29.  See infra Subsection II.A.1.
  30.  This is a standard criticism of legal formalism. See, e.g., Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 820 (1935) (“In every field of law we should find peculiar concepts which are not defined either in terms of empirical fact or in terms of ethics but which are used to answer empirical and ethical questions alike, and thus bar the way to intelligent investigation of social fact and social policy.”).
  31.  See, e.g., Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1701 (1976) (“The more general and the more formally realizable the rule, the greater the equitable pull of extreme cases of over- or underinclusion.”); Frederick Schauer, Formalism, 97 Yale L.J. 509, 510, 535 (1988) (describing formalism as “the concept of decisionmaking according to rule,” and pointing out that “it is exactly a rule’s rigidity, even in the face of applications that would ill serve its purpose, that renders it a rule”).
  32.  See supra note 23.
  33.  Cf. Toni M. Massaro, Gay Rights, Thick and Thin, 49 Stan. L. Rev. 45, 46–47 (1996) (contrasting “thin” doctrinal arguments that appeal to “principles of neutrality” with “thick” arguments that ask judges to “define, or appear to endorse,” particular sexual orientations).
  34.  Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1, 16 (2000).
  35.  See, e.g., Banks, supra note 6, at 19 (“The effort to arrive at a unitary conception of discrimination would be misguided even if an authoritative single decision maker—say, the United States Supreme Court—propounded the definition. Any single definition would fail to account for the distinctive features of the various settings where claims of racial discrimination might arise.”); Huq, supra note 16, at 1240 (explaining that discriminatory intent is “unavoidabl[y]” “protean and plural”); George Rutherglen, Disaggregated Discrimination and the Rise of Identity Politics, 26 Wm. & Mary J. Race, Gender & Soc. Just. 391, 394–95 (2020) (arguing that the multiplicity of plausible philosophical theories of the wrong of discrimination and “discrepancies” in legal doctrines “counsel against the quest for uniformity based on the essential nature of discrimination”).
  36.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
  37.  Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020); id. at 1778–83 (Alito, J., dissenting) (noting these among “some of the potential consequences” of Bostock).
  38.  Katie Eyer, Transgender Constitutional Law, 171 U. Pa. L. Rev. 1405, 1405, 1408 (2023) (surveying constitutional transgender rights cases from 2017–2021 and concluding that “recent transgender rights litigation has resulted in important and consistent victories for transgender constitutionalism in the lower and state courts”).
  39.  There have been significant recent losses. See, e.g., Williams ex rel. L.W. v. Skrmetti, No. 23-5600, 2023 WL 6321688, at *23 (6th Cir. Sept. 28, 2023) (reversing grants of preliminary injunctions against Kentucky and Tennessee laws barring gender-affirming health care for transgender minors); Eknes-Tucker v. Governor of Ala., No. 22-11707, 2023 WL 5344981, at *1 (11th Cir. Aug. 21, 2023) (vacating district court’s preliminary injunction of Alabama law prohibiting gender-affirming health care for transgender minors); Kasper ex rel. Adams v. Sch. Bd., 57 F.4th 791, 799–800 (11th Cir. 2022) (en banc) (reversing district court’s conclusions, following a bench trial, that school policy barring a transgender boy from the boys’ restroom violated the Equal Protection Clause and Title IX); Fowler v. Stitt, No. 22-cv-00115, 2023 WL 4010694, at *24 (N.D. Okla. June 8, 2023) (granting motion to dismiss challenge to state policy prohibiting transgender individuals from changing the sex designations on their birth certificates), appeal docketed, No. 23-5080 (10th Cir. July 7, 2023); Gore v. Lee, No. 19-cv-00328, 2023 WL 4141665, at *37 (M.D. Tenn. June 22, 2023) (similar), appeal docketed, No. 23-5669 (6th Cir. July 26, 2023); B.P.J. v. W. Va. State Bd. of Educ., No. 21-cv-00316, 2023 WL 111875, at *10 (S.D. W. Va. Jan. 5, 2023) (denying transgender litigant’s motion for summary judgment in case challenging law forbidding transgender girls from playing girls’ sports in school), argued, No. 23-1078 (4th Cir. Oct. 27, 2023); A.H. ex rel. D.H. v. Williamson Cnty. Bd. of Educ., 638 F. Supp. 3d 821, 837 (M.D. Tenn. Nov. 2, 2022) (denying preliminary injunction in case challenging Tennessee state law barring transgender schoolchildren from using restrooms consistent with their gender identities).
  40.  Adams, 57 F.4th at 846 n.13 (Jill Pryor, J., dissenting) (describing six distinct theories that the majority rejected).
  41.  Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 68, 93 (2022) (noting that the parties had not asserted an equal protection claim in Dobbs and observing that “Justice Alito’s attempt to block an equal protection claim that was not even before the Court in Dobbs is evidence of equality’s power, not its weakness”).
  42.  See Planned Parenthood of the Great Nw. v. State, 522 P.3d 1132, 1198–200 (Idaho 2023) (rejecting equal protection challenges to Idaho law restricting abortion); Siegel et al., supra note 41, at 95–96 (discussing state court decisions on the right to abortion as a matter of gender equality).
  43.  Siegel et al., supra note 41, at 73–74 (explaining that “[t]his is because, for decades, the question has been buried under the substantive due process doctrines regulating abortion . . . , and under federal statutes that prohibit pregnancy discrimination, including by government actors”).

Multi-Textual Constitutions

We have long been taught that constitutions are either “written” or “unwritten.” But this binary classification is wrong. All constitutions are in some way written, and all constitutions contain unwritten rules. This false distinction moreover overlooks the most important formal difference among the constitutions of the world: some constitutions consist of a single, supreme document of higher law while others consist of multiple documents, each enacted separately with shared supremacy under law. Ubiquitous but so far unnoticed, these constitutions comprising multiple texts are a unique constitutional form that has yet to be studied and theorized. I call them multi-textual constitutions.

This Article is the first on multi-textuality as a constitutional form. I draw from current and historical constitutions in Africa, the Americas, Asia, Europe, and Oceania to explain, illustrate, and theorize the design and operation of multi-textual constitutions. I examine their origins, compare how they perform relative to the alternative uni-textual constitutional form, and outline a research agenda for further study. What results is a reordering of our basic constitutional categories, a deep analytical dive into a distinct constitutional form, and a disruptive revelation about the United States Constitution, the world’s paradigmatic model of a uni-textual constitution.

Introduction: Beyond Written and Unwritten Constitutions

For generations, the study of constitutional law has begun with a standard distinction: some constitutions are “written” while others are “unwritten.”1.See Michael Foley, The Silence of Constitutions: Gaps, ‘Abeyances’ and Political Temperament in the Maintenance of Government 3 (1989) (“One of the most traditional points of departure in the study of constitutions has been to classify them according to whether they are ‘written’ or ‘unwritten.’”); Andrew Heywood, Politics 293 (2d ed. 2002) (“Traditionally, considerable emphasis has been placed on the distinction between written and unwritten constitutions.”); Herbert W. Horwill, The Usages of the American Constitution 1 (1925) (“Once upon a time some unknown humorist divided constitutions into written and unwritten, and since then text-book after text-book has taken his classification seriously. The American Constitution, we are told, is an example of the former class and the English of the latter.”); see also A.V. Dicey, Introduction to the Study of the Law of the Constitution 3–6 (3d ed. 1889) (distinguishing written and unwritten constitutions on several grounds, including how to locate them and how to identify their constitutive rules); Paul Craig, Written and Unwritten Constitutions: The Modality of Change, in Pragmatism, Principle, and Power inCommon Law Constitutional Systems 263, 263 (Sam Bookman, Edward Willis, Hanna Wilberg & Max Harris eds., 2022) (describing written constitutions as “the norm” and unwritten constitutions as “the rare exception”); James Allan, Against Written Constitutionalism, 14 Otago L. Rev. 191, 191–93 (2015) (observing that “[m]ost of the democratic world has some sort of written constitution” while at most three democracies have an “unwritten constitution,” namely Israel, New Zealand, and the United Kingdom).Show More According to this traditional contrast, written constitutions exist on parchment in documentary form, while unwritten constitutions are intangible sets of invisible rules consisting of norms, principles, and practices that sustain the constitutional order without entrenchment in written word.2.See, e.g., W.J. Cocker, The Government of the United States 55 (1889) (“Constitutions are either written or unwritten. A written constitution is a body of laws, contained in a written document, under which the government is conducted. The Constitution of the United States is an example. . . . An unwritten constitution is one having no definite form. The English constitution is an example.”); Lucius Hudson Holt, The Elementary Principles of Modern Government 26 (1923) (“A constitution may be written or unwritten. It may be a single document, like the constitution of the United States, or it may be a combination of legal precedent, individual bills and grants, and immemorial customs, like the constitution of England.”); John Alexander Jameson, A Treatise on Constitutional Conventions; Their History, Powers, and Modes of Proceeding 77 (4th ed. 1887) (“An unwritten Constitution is made up largely of customs and judicial decisions, the former more or less evanescent and intangible . . . . Not so with written Constitutions.”); Emlin McClain, Constitutional Law in the United States 11 (1905) (“If the body of rules and principles is not reduced to definite and authoritatively written form, the constitution is said to be unwritten, as in the familiar case of Great Britain.”).Show More This foundational distinction has been the basic building block in constitutional studies. But it is both incorrect and misleading.

The distinction between written and unwritten constitutions is incorrect because all constitutions are in some way written. Even parts of the paradigmatically “unwritten” Constitution of the United Kingdom are written somewhere, namely in statutes that are endowed with constitutional status,3.SeeThoburn v. Sunderland City Council [2002] EWHC (Admin) 195 [62], [2003] QB 151 (Eng.) (enumerating statutes that have constitutional status).Show More for instance the Magna Carta,4.Magna Carta 1297, 25 Edw. 1 c. 9 (Eng.).Show More the Bill of Rights,5.Bill of Rights 1688, 1 W. & M. c. 2 (Eng.).Show More and the Human Rights Act.6.Human Rights Act 1998, c. 42 (UK).Show More It is more accurate to describe an “unwritten” constitution as partly codified and partly uncodified, since many of its constitutional norms appear in official texts.

The familiar distinction between written and unwritten constitutions is moreover misleading because all constitutions contain unwritten rules. No constitution is ever fully written, and one might well wonder whether it is possible for a constitution to be set out entirely in documentary form.7.See John Gardner, Can There Be a Written Constitution?, in 1 Oxford Studies in Philosophy of Law 162, 188–92 (Leslie Green & Brian Leiter eds., 2011).Show More Even the United States Constitution—the archetypical “written” constitution—consists of “a constitution outside the constitution,”8.See Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 410–14 (2007).Show More a common reference to the extra-canonical norms, practices, relationships, and institutions that form part of the constitution beyond its text. Scholars have properly recognized that the U.S. Constitution is comprised of various “invisible”9.Laurence H. Tribe, The Invisible Constitution 25–27 (2008). Similar themes appear in relation to works on the “unwritten” Constitution of the United States. SeeAkhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By, at ix–x (2012); Don K. Price, America’s Unwritten Constitution: Science, Religion, and Political Responsibility 9 (1983).Show More elements, and they have even inquired whether and how it might be possible to amend America’s unwritten constitution.10 10.See Richard Albert, Ryan C. Williams & Yaniv Roznai, Introduction: A Return to Constitutional Basics: Amendment, Constitution, and Writtenness, in Amending America’s Unwritten Constitution 1, 14–16 (Richard Albert, Ryan C. Williams & Yaniv Roznai eds., 2022).Show More

This false distinction between written and unwritten constitutions comes at a great cost. It overlooks and obscures the most important formal distinction among the constitutions of the world: some constitutions consist of a single, supreme document of higher law while others consist of multiple documents, each enacted separately with shared supremacy under law. In jurisdictions governed by more than one document of higher law, the constitution is composed of more than one self-standing text of equal legal force, and together those texts are regarded jointly as the supreme law of the land.11 11.In this Article, I focus only on multi-textual national constitutions, but multi-textual constitutions exist also at the subnational and supranational levels.Show More The documents comprising these constitutions are enacted separately in a variety of forms, for instance, as founding constitutional texts, organic laws endowed with constitution-level status, and constitutional amendments promulgated as separate documents.

Ubiquitous yet so far unidentified, this constitutional form defies our conventional understanding of “written” constitutions. Rather than one official text, there are many, and no single text prevails over another because all are considered equal. These constitutions are therefore unlike uni-textual constitutions whose written elements appear in a single document that is treated as the only supreme law of the land. I call them multi-textual constitutions. Multi-textual constitutions differ from single-text constitutions on the major markers of constitutional life: their initial design, their ongoing evolution, their authoritative interpretation, and their formal amendment. Multi-textual constitutions moreover raise intriguing possibilities for governance in relation to democracy, human rights, and the rule of law that set them apart from what is regarded as the world’s dominant model of uni-textual constitutions.12 12.SeeDenis J. Galligan & Mila Versteeg, Theoretical Perspectives on the Social and Political Foundations of Constitutions, in Social and Political Foundations of Constitutions 3, 6 (Denis J. Galligan & Mila Versteeg eds., 2013) (observing that “the standard practice across the nations of the world, with just a few exceptions, is to have a single written constitutional document”).Show More

There are advantages to introducing “multi-textual constitutions” as a term and category in the field of public law generally and constitutional studies specifically. Using “multi-textual” as a new term to identify this unique classification of constitutions brings a much-needed correction to the mistaken identification of constitutions as “unwritten.” In addition, using “multi-textual” as a new category for constitutions distinguishes them in both form and function from the alternative uni-textual model.

Scholars have yet to identify, explain, and theorize multi-textuality as a distinctive constitutional form despite its prevalence in every region of the world, across all legal traditions, and in all types of constitutional states no matter their age. My purpose in this Article is to introduce, illustrate, and theorize multi-textuality with reference to current and historical constitutions, and to show how this ubiquitous constitutional form disrupts much of what we know about constitutions, including the U.S. Constitution. The great revelation is that the U.S. Constitution consists of multiple documents of higher law, each equally supreme in the constitutional order. Yet, as I will show, although the U.S. Constitution satisfies the trio of legal criteria to be defined in form and operation as multi-textual, it fails the sociological test of public recognition as multi-textual because it is perceived in law and society as uni-textual.

I begin, in Part I, by showing the remarkable omnipresence of multi-textual constitutions in the world. I draw from many constitutional traditions to show the prevalence of multi-textuality in countries rooted in civil and common law traditions, with parliamentary and presidential systems, and in the Global North and South. I furthermore show that multi-textual constitutions are created in one of two ways: either by express design or by unplanned evolution. In Part II, I identify problems created by multi-textual constitutions in connection with three basic questions that are not ordinarily asked of uni-textual constitutions: (1) what is the constitution?, (2) where is the constitution?, and (3) when does a set of legal rules becomes constitutional? Part III then turns to the potential promise of multi-textuality. I highlight three areas of strength for multi-textual constitutions: (1) they make possible incremental constitutional development as a constitutional state begins the transition from one regime to another; (2) they make available multiple options for constitutional reform and may therefore offer more flexibility in managing changes to higher law; and (3) they may help forestall the rise of a popular obsession with the constitution, what scholars have diagnosed as “veneration,” a problematic phenomenon traceable to James Madison,13 13.See The Federalist No. 49, at 340 (James Madison) (Jacob E. Cooke ed., 1961).Show More one of the authors of the U.S. Constitution. I close with a research agenda for future study to enhance our understanding of both uni-textual and multi-textual constitutions.

  1.  See Michael Foley, The Silence of Constitutions: Gaps, ‘Abeyances’ and Political Temperament in the Maintenance of Government 3 (1989) (“One of the most traditional points of departure in the study of constitutions has been to classify them according to whether they are ‘written’ or ‘unwritten.’”); Andrew Heywood, Politics 293 (2d ed. 2002) (“Traditionally, considerable emphasis has been placed on the distinction between written and unwritten constitutions.”); Herbert W. Horwill, The Usages of the American Constitution 1 (1925) (“Once upon a time some unknown humorist divided constitutions into written and unwritten, and since then text-book after text-book has taken his classification seriously. The American Constitution, we are told, is an example of the former class and the English of the latter.”); see also A.V. Dicey, Introduction to the Study of the Law of the Constitution 3–6 (3d ed. 1889) (distinguishing written and unwritten constitutions on several grounds, including how to locate them and how to identify their constitutive rules); Paul Craig, Written and Unwritten Constitutions: The Modality of Change, in Pragmatism, Principle, and Power in Common Law Constitutional Systems 263, 263 (Sam Bookman, Edward Willis, Hanna Wilberg & Max Harris eds., 2022) (describing written constitutions as “the norm” and unwritten constitutions as “the rare exception”); James Allan, Against Written Constitutionalism, 14 Otago L. Rev. 191, 191–93 (2015) (observing that “[m]ost of the democratic world has some sort of written constitution” while at most three democracies have an “unwritten constitution,” namely Israel, New Zealand, and the United Kingdom).
  2.  See, e.g., W.J. Cocker, The Government of the United States 55 (1889) (“Constitutions are either written or unwritten. A written constitution is a body of laws, contained in a written document, under which the government is conducted. The Constitution of the United States is an example. . . . An unwritten constitution is one having no definite form. The English constitution is an example.”); Lucius Hudson Holt, The Elementary Principles of Modern Government 26 (1923) (“A constitution may be written or unwritten. It may be a single document, like the constitution of the United States, or it may be a combination of legal precedent, individual bills and grants, and immemorial customs, like the constitution of England.”); John Alexander Jameson, A Treatise on Constitutional Conventions; Their History, Powers, and Modes of Proceeding 77 (4th ed. 1887) (“An unwritten Constitution is made up largely of customs and judicial decisions, the former more or less evanescent and intangible . . . . Not so with written Constitutions.”); Emlin McClain, Constitutional Law in the United States 11 (1905) (“If the body of rules and principles is not reduced to definite and authoritatively written form, the constitution is said to be unwritten, as in the familiar case of Great Britain.”).
  3.  See Thoburn v. Sunderland City Council [2002] EWHC (Admin) 195 [62], [2003] QB 151 (Eng.) (enumerating statutes that have constitutional status).
  4.  Magna Carta 1297, 25 Edw. 1 c. 9 (Eng.).
  5.  Bill of Rights 1688, 1 W. & M. c. 2 (Eng.).
  6.  Human Rights Act 1998, c. 42 (UK).
  7.  See John Gardner, Can There Be a Written Constitution?, in 1 Oxford Studies in Philosophy of Law 162, 188–92 (Leslie Green & Brian Leiter eds., 2011).
  8.  See Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 410–14 (2007).
  9.  Laurence H. Tribe, The Invisible Constitution 25–27 (2008). Similar themes appear in relation to works on the “unwritten” Constitution of the United States. See Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By, at ix–x (2012); Don K. Price, America’s Unwritten Constitution: Science, Religion, and Political Responsibility 9 (1983).
  10.  See Richard Albert, Ryan C. Williams & Yaniv Roznai, Introduction: A Return to Constitutional Basics: Amendment, Constitution, and Writtenness, in Amending America’s Unwritten Constitution 1, 14–16 (Richard Albert, Ryan C. Williams & Yaniv Roznai eds., 2022).
  11.  In this Article, I focus only on multi-textual national constitutions, but multi-textual constitutions exist also at the subnational and supranational levels.
  12.  See Denis J. Galligan & Mila Versteeg, Theoretical Perspectives on the Social and Political Foundations of Constitutions, in Social and Political Foundations of Constitutions
    3, 6 (

    Denis J. Galligan & Mila Versteeg eds.,

    2013) (

    observing that “the standard practice across the nations of the world, with just a few exceptions, is to have a single written constitutional document”).

  13.  See The Federalist No. 49, at 340 (James Madison) (Jacob E. Cooke ed., 1961).

The Federal Government’s Role in Local Policing

For far too long, the federal government has failed to exercise its constitutional authority to mitigate the harms imposed by local policing. Absent federal intervention, though, some harmful aspects of policing will not be addressed effectively, or at all. States and localities often lack the necessary capacity and expertise to change policing, and many states and localities lack the will. This Article argues for federal intervention and describes what that intervention should look like.

The Article begins by describing three paradigmatic areas of local policing that require federal intervention to create real change: excessive use of force, racial discrimination, and the unregulated use of surveillance technologies. Because state and local governments are either unable or unwilling to address these problems alone, the federal government should intervene to identify and enforce minimum standards, develop best practices, collect data, and distribute resources nationwide.

Regrettably, Congress has failed to act adequately to improve local policing for the better, although it has tried to encourage reform through the use of its Spending Power. This Article argues that Congress should utilize its regulatory powers under Section 5 of the Fourteenth Amendment and the Commerce Clause to address these paradigmatic problem areas, and it explains how this can be done consistently with Supreme Court doctrine.

Alongside—or in the absence of—congressional action, the executive branch has the power and responsibility to act to address policing’s harms. The Article explains that, though indirect, the President wields considerable power to influence policing by setting policy, implementing federal programs, enforcing civil rights, and supervising federal law enforcement. Although the executive branch should use this power to promote local policing that is effective, fair, and accountable, and that minimizes harm, administration after administration has failed to do so consistently and also has failed to hold federal law enforcement to these standards. Recent executive branch efforts have improved the situation, but there still exists a gaping chasm between how the federal government should be influencing local policing and how it is doing so today.

Introduction

23,0000 > 18,000 > 50 > 1. That is the mathematics of transforming American policing. Just under 23,000 cities and counties, 18,000 police departments, 50 states.1.These numbers obviously are approximations and vary from year to year. See Press Release, U.S. Census Bureau, U.S. Census Bureau Reports There Are 89,004 Local Governments in the United States (Aug. 30, 2012), https://www.census.gov/newsroom/‌releases/archives/governments/cb12-161.html [https://perma.cc/HJH6-QHV7] (number of cities and counties in 2012 Census); Duren Banks, Joshua Hendrix, Matthew Hickman & Tracey Kyckelhahn, Bureau of Just. Stats., U.S. Dep’t of Just., National Sources of Law Enforcement Employment Data 1 (2016), https://bjs.ojp.gov/content/pub/pdf/nsleed.pdf [https://perma.cc/6ZJW-8RCF] (reporting that there are about 18,000 police departments).Show More And one federal government. The point seems obvious. If the goal is to change policing for the better, mustering the authority of the federal government can provide an enormous fulcrum.

Even if every one of those 23,000 cities and counties and 18,000 agencies were trying to make policing fairer and less harmful, they could not do so by themselves. Some are far too small to have the expertise or resources to do so. More than eighty-five percent of local police departments and three-quarters of sheriffs’ offices have fewer than fifty officers.2.See Sean E. Goodison, Bureau of Just. Stats., U.S. Dep’t of Just., Local Police Departments Personnel, 2020, at 3 (2022) [hereinafter Goodison, Local Police Departments Personnel], https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/lpdp20.pdf [https://perma.‌cc/4MUQ-8KHV]; Connor Brooks, Bureau of Just. Stats., U.S. Dep’t of Just., Sheriffs’ Offices Personnel, 2020, at 3 (2022), https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/‌document/sop20.pdf [https://perma.cc/A5NL-X8WY]. Maria Ponomarenko has provided one of the best accounts of the challenges of small agencies. See generally Maria Ponomarenko, The Small Agency Problem in American Policing, 98 N.Y.U. L. Rev. (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4537989 [https://perma.cc/J3E3-K9‌CN].Show More Yet, large jurisdictions struggle as well, and there is little doubt why. Most agencies lack the capacity to assess and adopt best practices without help. Or collect and share information in a consistent manner. Or attend to the interests of those most affected by policing in the face of other pressures and priorities. The simple fact is that even the most willing of states and localities cannot articulate or enforce national values and standards or coordinate easily across state lines. Only the federal government can do this.

Realistically, though, not all jurisdictions are focused on eliminating the harm in policing. Some are. Some states have pursued legislative or other changes to improve policing, and some states have done enough of this to plainly be taking the endeavor seriously.3.See, e.g., Jennifer Brown & Jesse Paul, Colorado Governor Signs Sweeping Police Accountability Bill into Law. Here’s How It Will Change Law Enforcement., Colo. Sun (June 19, 2020, 9:53 AM), https://coloradosun.com/2020/06/19/colorado-police-accountability-bill-becomes-law/ [https://perma.cc/JNV4-9KM8]; Michael Levenson & Bryan Pietsch, Maryland Passes Sweeping Police Reform Legislation, N.Y. Times (Apr. 10, 2021), https://www.nytimes.com/2021/04/10/us/maryland-police-reform.html [https://perma.cc/JY‌8W-ZL89]; Ned Oliver, Police Reforms Go into Effect in Virginia, Va. Mercury (Mar. 2, 2021, 12:05 AM), https://www.virginiamercury.com/blog-va/police-reforms-go-into-effect-in-virginia/ [https://perma.cc/V82Q-GGJK].Show More Overall, however, the spate of enactments since the nation’s response to the murder of George Floyd tend to be piecemeal at best.4.See, e.g., Liz Crampton, States Passed 243 Policing Bills—and Left Activists Wanting, Politico (May 26, 2021, 4:30 AM), https://www.politico.com/news/2021/05/26/states-policing-bills-490850 [https://perma.cc/D2CW-NHCN] (reporting activist frustration regarding limited reforms after George Floyd’s murder); Mark Berman & David Nakamura, From George Floyd to Tyre Nichols, Pleas for Police Reform Meet Bleak Reality, Wash. Post (Feb. 2, 2023, 7:05 PM), https://www.washingtonpost.com/national-security/2023/02/02/‌memphis-tyre-nichols-police-reform/ [https://perma.cc/XUT6-R7B7] (finding only a “patchwork series of reforms . . . scattered across some of America’s thousands of local police departments” while a “comprehensive approach remains out of reach”); Denise Lavoie, Tatyana Monnay & Juliette Rihl, Some States Are Struggling to Implement Policing Reforms Passed After George Floyd’s Murder, PBS NewsHour (Oct. 31, 2022, 11:50 AM), https://www.pbs.org/newshour/nation/some-states-are-struggling-to-implement-policing-reforms-passed-after-george-floyds-murder [https://perma.cc/7KPH-PQ55] (reporting on difficulties with implementing limited reforms).Show More Still, other jurisdictions have done less to increase fairness and reduce harm, as the horrific murder of Tyre Nichols by the “Scorpion Unit” in Memphis suggests.5.Even calling a street policing team “Scorpion” when it is charged with making numerous traffic stops underscores the problem. See Steve Eder et al., Muscle Cars, Balaclavas and Fists: How the Scorpions Rolled Through Memphis, N.Y. Times, https://www.nytimes.com/2023/‌02/04/us/memphis-police-scorpion.html [https://perma.cc/T2KX-JA2J] (Mar. 1, 2023) (describing the aggressive tactics of the Scorpion squad).Show More The fervor for police reform that began after George Floyd’s murder itself has cooled, and the national narrative—accurate or otherwise—shifted to another wave of rising crime.6.See, e.g., David A. Graham, How Criminal-Justice Reform Fell Apart, Atlantic (May 26, 2022), https://www.theatlantic.com/ideas/archive/2022/05/george-floyd-anniversary-police-reform-violent-crime/630174/ [https://perma.cc/4Q4A-E33M] (describing how rising crime rattled Americans’ confidence in police reform).Show More Only the federal government has the capacity to protect constitutional rights in the face of local diffidence or recalcitrance. That is its job.

If we really care about addressing the many serious problems with policing, at least for some aspects it will be faster and more effective to adopt one set of changes rather than 50, 18,000, or 24,000. If money and might are needed, the federal government has them. Yet the federal government’s resources and heft too often have been badly deployed.

Here, we offer some needed direction for federal involvement in local policing. We do that for Congress, which all too rarely has exercised its authority to set national rules for policing, or even authorized the executive branch to do so. And we do it for the executive branch, which, even with the existing authority it has, could do much more. We elaborate upon the need for national standards in some areas of policing, the value of information collection, and the utility of technical assistance and training, and call for more thought about how the federal government’s enforcement power is utilized. We are critical of the Supreme Court’s jurisprudence, to the extent it stands in the way.

None of what we suggest here is rocket science, however, which raises the question why the federal government’s performance in police reform has been so anemic. For that reason, besides putting forward an affirmative agenda, we devote substantial time to four explanations for why the federal government has not done its job. We cannot repair them all, but we can shine a light on them, offer pushback, and—at times—antidotes.

The first is a lack of political will. Federal authorities could address almost everything we suggest here, even in the face of some problematic Supreme Court jurisprudence. They simply seem not to be able to muster the wherewithal to do so. After George Floyd’s murder, Congress considered important legislation.7.See, e.g., Alexandra Hutzler, What Is the George Floyd Justice in Policing Act?, ABC News (Feb. 2, 2023, 1:49 PM), https://abcnews.go.com/Politics/george-floyd-justice-policing-act/story?id=96851132 [https://perma.cc/43J5-WQZ4] (explaining legislation proposed in Congress after George Floyd’s murder that was designed to address police misconduct, racial profiling, and use of force).Show More It was not unproblematic, and it was not enough, but it would have been a notable start. It went nowhere.8.George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong.Show More

You could think Congress failed to act because the public lost interest. Congress inevitably follows swings in public opinion.9.SeePaul Burstein, American Public Opinion, Advocacy, and Policy in Congress 46–49 (2014) (examining numerous research methodologies and concluding that “we find repeatedly that opinion influences policy” at both the federal and state levels).Show More In 2020, the public favored police reform.10 10.See Pew Rsch. Ctr., Majority of Public Favors Giving Civilians the Power to Sue Police Officers for Misconduct 1 (2020), https://www.pewresearch.org/politics/wp-content/uploads/‌sites/4/2020/07/PP_2020.07.09_Qualified-Immunity_FINAL.pdf [https://perma.cc/4U3U-CZTL] (finding that “[t]wo-thirds of Americans (66%) say that civilians need to have the power to sue police officers to hold them accountable for misconduct”); Steve Crabtree, Most Americans Say Policing Needs ‘Major Changes,’ Gallup (July 22, 2020), https://news.gallup.‌com/poll/315962/americans-say-policing-needs-major-changes.aspx [https://perma.cc/4NUJ-79F3] (finding that “58% of Americans say policing needs major changes”).Show More By 2022 they were concerned about crime.11 11.SeeJohn Gramlich, Violent Crime Is a Key Midterm Voting Issue, But What Does the Data Say?, Pew Rsch. Ctr. (Oct. 31, 2022), https://www.pewresearch.org/short-reads/2022/10/‌31/violent-crime-is-a-key-midterm-voting-issue-but-what-does-the-data-say/ [https://perma.‌cc/GDU3-TBDS] (“Around six-in-ten registered voters (61%) say violent crime is very important when making their decision about who to vote for in this year’s congressional elections.”); Megan Brenan, Record-High 56% in U.S. Perceive Local Crime Has Increased, Gallup (Oct. 28, 2022), https://news.gallup.com/poll/404048/record-high-perceive-local-crime-increased.aspx [https://perma.cc/6EMF-PMGK] (“The 56% of U.S. adults who report an increase in crime where they live . . . is the highest . . . in Gallup’s trend dating back to 1972.”).Show More In that case, one could argue Congress’s lack of political will reflected political responsiveness. But if that is what Congress was thinking, Congress was wrong. As the public recognizes, effective and accountable policing need not be in tension. Even as crime rates rose in 2021 and 2022, support for some forms of reform—and for the Black Lives Matter movement, for that matter—remained.12 12.See Justin McCarthy, Americans Remain Steadfast on Policing Reform Needs in 2022, Gallup (May 27, 2022), https://news.gallup.com/poll/393119/americans-remain-steadfast-policing-reform-needs-2022.aspx [https://perma.cc/8QQ4-YGW5] (“[H]alf of Americans (50%) support ‘major changes’ to policing in the U.S., and another 39% favor ‘minor changes.’”); Jennifer de Pinto, Anthony Salvanto, Fred Backus & Kabir Khanna, Most Americans Think Changes to Policing Are Necessary—CBS News Poll, CBS News (Feb. 5, 2023, 9:30 AM), https://www.cbsnews.com/news/policing-opinion-poll-2023-02-05/ [https://perma.cc/X65Y-7ZH6] (reporting that 47% of Americans support “major changes” to police practices, and 42% support “minor changes”); Juliana Menasce Horowitz, Kiley Hurst & Dana Braga, Support for the Black Lives Matter Movement Has Dropped Considerably From Its Peak in 2020, Pew Rsch. Ctr. (June 14, 2023), https://www.pewresearch.org/social-trends/2023/06/14/support-for-the-black-lives-matter-movement-has-dropped-considerably-from-its-peak-in-2020/ [https://perma.cc/P4JZ-QX93] (finding that despite decline in support, Black Lives Matter retains the support of fifty-one percent of Americans).Show More Polling shows widespread, bipartisan, non-ideological support for using first responders rather than police to address many problems such as mental health.13 13.SeeNatasha Chisholm & Anika Dandekar, Majorities of Voters Support Criminal Charges for Those Involved in Tyre Nichols’ Killing and a Range of Police Reforms, Data for Progress (Mar. 2, 2023), https://www.dataforprogress.org/blog/2023/3/2/majorities-of-voters-support-criminal-charges-for-those-involved-in-tyre-nichols-killing-and-a-range-of-policing-reforms [https://perma.cc/WFS2-PTQR] (finding that Americans prefer the use of first responders for mental health issues by a fifty-three-point margin); Justine Coleman, Most Say Police Shouldn’t Be Primary Responders for Mental Health Crises: NAMI Poll, Hill (Nov. 15, 2021, 11:10 AM), https://thehill.com/policy/healthcare/581556-majority-say-professionals-should-respond-to-mental-health-crises-instead/ [https://perma.cc/S7QW-WATB] (“[N]early 80 percent of respondents said mental health professionals, not police, should respond to mental health and suicide situations.”).Show More

Which brings us to the second explanation. Opponents of federal reform frequently claim that principles of constitutional federalism stand in the way.14 14.Much literature is devoted to parsing the federalism concerns raised as a result of congressional regulation of policing. See, e.g., W. Paul Koenig, Does Congress Abuse its Spending Clause Power by Attaching Conditions on the Receipt of Federal Law Enforcement Funds to a State’s Compliance with “Megan’s Law”?, 88 J. Crim. L. & Criminology 721, 741 (1998).Show More Some argue that it is improper for the federal government to tell local police how to do their job.15 15.See, e.g., 166 Cong. Rec. H2460 (daily ed. June 25, 2020) (statement of Rep. John H. Rutherford) (“We cannot be so eager to make major policing reforms on the Federal level that we overcorrect and prevent good officers on the street from being able to do their jobs.”); Kathleen F. Brickey, The Commerce Clause and Federalized Crime: A Tale of Two Thieves, 543 Annals Am. Acad. Pol. & Soc. Sci. 27, 38 (1996) (noting that the National Association of Attorneys General and the National Conference of State Legislatures “have urged Congress to recognize that primary responsibility for criminal law enforcement belongs to the states”); William Parlett, Criminal Law and Cooperative Federalism, 56 Am. Crim. L. Rev. 1663, 1665–66 (2019) (describing how cooperative prosecution programs concentrate too much power in the hands of federal executive branch officials and rob state and local communities of their “voice”).Show More And others go further, questioning whether the federal government has power under the Constitution to set the rules for policing.16 16.See, e.g., Manu Raju, Clare Foran & Ted Barrett, GOP and Democrats Clash Over Police Reform in Congress as Pressure for Action Mounts, CNN (June 16, 2020, 8:28 PM), https://www.cnn.com/2020/06/16/politics/police-reform-senate-republicans/index.html [https://perma.cc/KX7M-ZDNM] (reporting then-Senate Majority Leader Mitch McConnell’s opposition to federal police reform efforts as “overreach” and an attempt to “federalize all of these issues”); see also Richard A. Epstein, The Supreme Court, 1987 Term—Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 45–46, 104 (1988) (raising concerns that Congress will use its spending powers to subvert the Twenty-First Amendment and Tenth Amendment such that “a presumption of distrust should attach to all government action”).Show More

As this Article makes clear, these views about federalism’s limits on federal power are wrong. Under our federal system, and the Supreme Court’s somewhat baroque federalism doctrine, Congress may have to choose with some care the right font of power to meet the particular problem. For racial discrimination and use of force, Section 5 of the Fourteenth Amendment should suffice. For surveillance technologies, resorting to the Commerce Clause in most cases would do the trick. Some approaches to regulating policing may escape Congress’s grasp, but for the most part, Congress has ample constitutional power to step in where it would be helpful to do so. And, of course, national standards and approaches do not eliminate state variation; they simply provide a floor.

The best evidence that federalism-based objections have little to support them is that the federal government already intervenes in deeply consequential ways to shape policing. It empowers local officers by deputizing them to federal ends. It pushes local agencies to pursue national public safety priorities, whether they be street-level drug enforcement, gun crime, or something else.17 17.See Roger J. Miner, The Consequences of Federalizing Criminal Law, 4 Crim. Just.16, 18 (1989) (describing expansion of federal jurisdiction to crimes including robbery, extortion, loan-sharking, and drug trafficking); Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 Annals Am. Acad. Pol. & Soc. Sci. 39, 42 (1996) (“Congress enacted a series of federal crimes that targeted violence against private individuals . . . to assert jurisdiction over an increasingly broad range of conduct clearly within the traditional police powers of the states.”); Partlett, supra note 15, at 1663 (“Cooperative federalism is now commonplace in the prosecution of street-level drug and gun crime . . . , [which] . . . weakens the ability of states to function as political entities that can hold their law enforcement officers accountable in an area of traditional state police power.”).Show More It provides local police with militarized equipment and tools for surveillance and incorporates their work into federal databases.18 18.See Allison McCartney, Paul Murray & Mira Rojanasakul, After Pouring Billions into Militarization of U.S. Cops, Congress Weighs Limits, Bloomberg (July 1, 2020), https://www.bloomberg.com/graphics/2020-police-military-equipment/ [https://perma.cc/‌C7V9-JUNF]; Jay Stanley & Bennett Stein, FOIA Documents Reveal Massive DEA Program to Record Americans’ Whereabouts with License Plate Readers, ACLU, https://www.aclu.org‌/news/smart-justice/foia-documents-reveal-massive-dea-program-record-americans-whereab‌outs-license [https://perma.cc/ZZ8D-UKDT] (Jan. 28, 2015) (explaining that the Drug Enforcement Administration (“DEA”) partners with state and local law enforcement agencies around the country to collect license plate location data for its database).Show More It trains officers to engage in deleterious practices like widespread pretextual traffic stops.19 19.See Farhang Heydari, The Invisible Driver of Policing, 76 Stan. L. Rev. (forthcoming 2024) (manuscript at 1–2) [hereinafter Heydari, The Invisible Driver of Policing], https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4369747 [https://perma.cc/5FYF-MZ‌FW].Show More The federal government meddles aplenty in local law enforcement without much objection from those who worry aloud about the federal government interfering in local policing. It seems only to rouse disagreement if the suggestion is the federal government should work to make policing more responsive to policed communities, more equitable, and less harmful. That one-way ratchet rests on an implausible account of “Our Federalism.”20 20.Younger v. Harris, 401 U.S. 37, 44 (1971) (“[T]he notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways . . . is referred to by many as ‘Our Federalism’ . . . .”).Show More

The federal government’s already ample role in local policing highlights the third explanation for why it has not done what is needed to transform policing for the better, which is that some parts of the federal government themselves are resistant to change—to the point that the federal government is complicit in many of policing’s problems. When it comes to policing, there is a deep tension within the federal government as to what its role should be. On one hand, it has an obligation to protect civil rights and racial equality, a special role in preserving privacy, and the sole power to promote values such as democratic accountability and transparency at a national level. Some elements of the federal government pursue these ends, such as the Civil Rights Division and its Special Litigation Section.21 21.See Special Litigation Section, U.S. Dep’t of Just.: C.R. Div., https://www.justice.gov/‌crt/special-litigation-section [https://perma.cc/268W-7983] (last visited Sept. 24, 2023).Show More On the other hand, the federal government operates an enormous law enforcement apparatus, with dozens of agencies that depend on state and local cooperation.22 22.See Law Enforcement, Bureau of Just. Stats. (Feb. 18, 2021), https:/bjs.ojp.gov/topics/‌law-enforcement#recent-faqs-how-many-full-time-federal-law-enforcement [https://perma.c‌c/NJQ7-WNLX] (estimating that in 2020, there were 137,000 full-time federal law enforcement officers); see also Lisa M. Seghetti, Cong. Rsch. Serv., RL32270, Enforcing Immigration Law: The Role of State and Local Law Enforcement 3 (2009), https:/www.everycrsreport.com/files/20090311_RL32270_a7bbe8763684424b48f0d4b1d61‌c92412ac50d0c.pdf [https://perma.cc/N5AR-EBMB] (providing examples of cooperation between federal and local law enforcement on immigration); Michael M. Hethmon, The Chimera and the Cop: Local Enforcement of Federal Immigration Law, 8 UDC/DCSL L. Rev. 83, 139 (2004) (detailing high level of federal-local law enforcement cooperation).Show More That law enforcement apparatus does not seem particularly reform-minded; indeed, some federal agencies such as the Drug Enforcement Administration, Customs and Border Protection, and Immigration and Customs Enforcement are themselves particularly concerning.23 23.See, e.g., US Records Show Physical, Sexual Abuse at Border, Hum. Rts. Watch (Oct. 21, 2021, 7:00 AM), https://www.hrw.org/news/2021/10/21/us-records-show-physical-sexua‌l-abuse-border [https://perma.cc/Z97M-W5F5] (reporting on abuse by Customs and Border Protection officers, Border Patrol agents, and Immigration and Customs Enforcement officials); Stan Wilson, Daniel Chong, Forgotten in DEA Cell, Settles Suit for $4.1 Million, CNN (Aug. 1, 2013, 7:38 AM), https://www.cnn.com/2013/07/30/justice/california-dea-settle‌ment/ [https://perma.cc/B9XE-EP9P] (finding that DEA agents detained a student in a windowless cell with no food or water for five days).Show More Federal law enforcement has too often pursued its public safety priorities, such as the wars on crime and terrorism, and federal immigration enforcement, with little attention to the harms it causes. In short, while some parts of the federal government encourage reform, other parts of the federal government work against it.

The federal government—and many federal agencies—bear responsibility for many of the harms of policing. The federally driven War on Drugs garnered little in the way of success while shredding constitutional liberties and contributing to mass incarceration.24 24.See Aaron Morrison, 50-Year War on Drugs Imprisoned Millions of Black Americans, PBS NewsHour (July 26, 2021, 12:55 PM), https://www.pbs.org/newshour/nation/50-year-war-on-drugs-imprisoned-millions-of-black-americans [https://perma.cc/DZV2-H4DR] (noting that the federal government’s policies pursuant to the War on Drugs resulted in the mass incarceration of millions of Americans and undermined their access to voting and gun rights).Show More Today, asset forfeiture drives unjustifiable policing practices, yet federal agencies have done little to curtail it and much to promote it.25 25.See Jennifer McDonald & Dick M. Carpenter II, Frustrating, Corrupt, Unfair: Civil Forfeiture in the Words of Its Victims, Inst. for Just. (Sept. 28, 2021), https://ij.org/report/‌frustrating-corrupt-unfair/ [https://perma.cc/US2N-2YLE] (“Most states across the country, not to mention the federal government, continue to enforce civil forfeiture laws that offer few due process protections and promote policing for profit.”).Show More Tyre Nichols’s murder brought widespread public attention to the problem of pretextual traffic stops, but the federal government has and continues to promote them, causing harm and racial disparities.26 26.See generally Farhang Heydari, Rethinking Federal Inducement of Pretext Stops, 2024 Wis. L. Rev. (forthcoming) [hereinafter Heydari, Rethinking Federal Inducement of Pretext Stops] (cataloguing the ways in which federal agencies promote pretextual traffic stops); Heydari, The Invisible Driver of Policing, supra note 19 (calling attention to the National Highway and Traffic Safety Agency as a proponent of pretextual traffic stops).Show More The militarization of domestic policing is deeply troubling in a free society, and the federal government has driven that. Technology-driven surveillance is itself a threat to democracy and individual rights, and very much on the rise, and yet again federal agencies promote, supply, and fund these technologies with few guardrails on their use.27 27.See Chris Baumohl, Two Years In, COVID-19 Relief Money Fueling Rise of Police Surveillance, Elec. Priv. Info. Ctr. (Mar. 9, 2023), https://epic.org/two-years-in-covid-19-relie‌f-money-fueling-rise-of-police-surveillance/ [https://perma.cc/5VLG-Z5RM] (explaining that the expansion of surveillance technologies results from “federal funding, which lowers the cost of acquisition at the state and local level”).Show More One could go on and on.

To be clear, our claim here assuredly is not that the federal government should not help state and local governments in crime fighting. Small communities need help to be effective in addressing crime, all departments benefit from federal expertise about what works, and there are elements of crime that are both national and transnational. Each of these provides a classic justification for federal involvement in primarily local enterprises. It may well be warranted beyond that. Our claim, rather, is that the federal government must be concerned both with ensuring public safety from crime and ensuring public safety from the harms of policing. The simple fact is that policing is unlikely to be effective over time unless it also is fair, harm-minimizing, and accountable—and even if it could remain unaccountable, that simply is inconsistent with this nation’s broader democratic values. The War on Drugs and federally supported asset forfeiture are indicative of a distorted sense of balance, if not one altogether missing.

Which brings us to the final explanation, and one on which we have a great deal to say, which is that the federal government has over-relied on an approach to addressing the harms of policing that rests in conditions on grants and civil rights enforcement, while undervaluing other approaches such as standard setting and regulation, or even ensuring that the federal government’s policing strategy is internally coherent. Do not get us wrong—enforcement is essential to ensuring the rules of the road obtain adherence. But what the federal government has done for too long is not set out the rules of the road, relying instead on the minimalist notion of policing regulation set out in the Supreme Court’s constitutional jurisprudence.28 28.But see Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945, 32961 (May 25, 2022) (requiring the Attorney General to develop standards for accreditation of police departments by independent credentialing agencies and to determine if discretionary grants should depend on accreditation).Show More Yet, as every first-year law student learns, the Constitution is a floor; it indicates what must be done, but often lacks any notion of aspiration or best practices.

The federal government’s lackluster role in improving policing is in part a result of its piecemeal, reactive approach. When bad things in policing happen, for example, the Civil Rights Division prosecutes individual officers. Or it investigates and sues some deeply troubled departments.29 29.See C.R. Div., U.S. Dep’t of Just., The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994–Present, at 3 (2017) [hereinafter C.R. Div., Police Reform Work: 1994–Present], https://www.justice.gov/crt/file/922421/download [https://perma.cc/LQN3-RME7] (describing the work of the Special Litigation Section).Show More Enforcement is important, though it could be done more strategically.30 30.See Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1, 22, 26–27, 57–58 (2009) [hereinafter Harmon, Promoting Civil Rights] (arguing that the use of consent decrees, which frequently include certain requirements, such as training and policies on use of force, can incentivize other agencies to adopt such reforms); Allison T. Chappell, Consent Decrees and Police Reform: A Piece of the Puzzle or a Puzzling Policy, 16 Criminology & Pub. Pol’y 571, 572 (2017) (finding that consent decrees can lead to policy change because police departments seek to avoid DOJ scrutiny).Show More But litigating our way out of policing’s problems is a doomed enterprise. The Department of Justice (“DOJ”) only can target a few troubled agencies or officers. The federal government also encourages some reform through grant programs and their conditions. But these efforts lack coherence, consistency, and comprehensiveness. They do far less than they ought.

Simply put, the federal government in the main has failed to set rules and standards that local policing agencies either must meet, or at least should aspire to meet.31 31.President Biden’s Executive Order (“EO”) has a provision fostering accreditation of policing agencies, which could be the beginning of standard setting, although those accreditation standards as adopted by DOJ were insufficiently demanding. See infra notes 354–55 and accompanying text.Show More It has not collected or even made possible uniformity in data so that we can identify problems in local policing, and their solutions. If anything became clear in the aftermath of the killing of George Floyd—and should have been clear long before—it is that policing needs to be regulated with clear front-end rules, or at least provided with coherent guidance. As we indicated, states have taken up some of the work, but in piecemeal fashion. The federal government could and should—and indeed must—do more to bring needed cohesion and real progress.

There is no gainsaying that President Biden’s May 2022 Executive Order (“EO”) on policing was a step in the right direction.32 32.Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945 (May 25, 2022).Show More It announced some efforts to bring federal agencies into line with best practices, some leadership in promoting nationwide accountability, and some effort to identify and promote best practices for local police departments. Even if radically incomplete, it was the most the nation ever has seen aspirationally about addressing real harms in policing. But orders are not action: a reform-oriented Trump order on policing had almost no effect.33 33.See Jon Schuppe, Trump Says His Policing Order Is a ‘Big Step.’ Activists Call It ‘Breadcrumbs.’, NBC News (June 17, 2020, 10:35 AM), https://www.nbcnews.com/news/us-news/trump-says-his-policing-order-big-step-activists-call-it-n1231269 [https://perma.cc/PR‌9G-ZQYR] (noting that Trump’s executive order concerning policing after George Floyd’s murder was “paltry”).Show More Only time will tell if the Biden Executive Order accomplishes what it set out to do.34 34.One year in, the federal government released a long list of the actions it had taken, and we do not mean in any way to minimize their import. See Fact Sheet: Biden-⁠Harris Administration Highlights Accomplishments on Anniversary of Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety, White House (May 25, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/25/fact-sheet-biden-harris-administration-highlights-accomplishments-on-anniversary-of-historic-executive-order-to-advance-effective-accountable-policing-and-strengthen-public-safety/ [https://perma.cc/U4HM-WNPR] (highlighting actions taken under EO 14,074, including the creation of the “National Law Enforcement Accountability Database,” the adoption of new federal law enforcement use of force policies, and grants to local law enforcement “to adopt and implement best practices” in policing). Every step in the right direction is a step in the right direction. Still, much of that list itself was a down payment on enormous work yet to be done.Show More And even if it does—there is plenty more to be done, as the EO itself acknowledges.35 35.See Exec. Order No. 14,074, 87 Fed. Reg. at 32945.Show More

This Article argues the federal government can and should foster change in policing and provides guidance as to what the federal government should do. The federal government has ample constitutional power to address the problems of local policing—sometimes acting along and sometimes in collaboration with state and local authorities. We at times suggest a regulatory approach, best achieved by setting rules and standards that guide local policing. We show how, when regulation would be inappropriate or ineffective, the federal government should use its other powers to achieve change. We strongly urge the federal government to adopt a coherent approach to policing—that, above all else, the federal government should stop using the power that it has in deleterious ways, exacerbating the problems of local policing even while claiming a desire to address them.

Part I of this Article is addressed to the question of need—where and why is federal intervention in local policing needed, and what should that federal role look like? It frames up three paradigmatic areas in which there is widespread consensus policing needs to change: excessive force by the police, racial discrimination in policing, and the use of surveillance technologies. It shows that state and local governments often are incapable of, or unwilling to, address the problems alone, thereby highlighting the vital role the federal government has to play. And it begins an exploration of what it is the federal government should do.

Part II turns to regulation and the role Congress should play in requiring better local policing. It sets out a minimal agenda for Congress in the three paradigmatic problem areas. But one cannot discuss congressional action without discussing constitutional power as well, thus implicating the Supreme Court. Part II acknowledges that Supreme Court precedent poses challenges to the exercise of federal power and critiques the doctrine accordingly. Still, it demonstrates that Congress has more than ample power to address what needs to be done. It explains how Congress could use this power to mitigate those problems of excessive force, undue surveillance, and racial injustice in policing.

Part III turns to the executive branch. If Congress does not act, or even if it does, the executive branch could do much with its discretion to set a national agenda, to enforce civil rights law, to implement federal programs, and to run federal law enforcement agencies to make policing better. The executive branch needs to promote a consistent, coherent approach to policing, one that supports policing that is fair, harm minimizing, and accountable as well as effective. But it also needs to stop doing things that make policing less equitable, less effective, and more harmful. Part III lays all this out.

The federal government is not going to fix everything that needs to be remedied around policing. But it could act to do less harm and reform policing substantially, even as it promotes effective efforts to address crime. It is time for federal officials at the legislative and executive level to take seriously their power and responsibility to address the harms of local policing.

  1.  These numbers obviously are approximations and vary from year to year. See Press Release, U.S. Census Bureau, U.S. Census Bureau Reports There Are 89,004 Local Governments in the United States (Aug. 30, 2012), https://www.census.gov/newsroom/‌releases/archives/governments/cb12-161.html [https://perma.cc/HJH6-QHV7] (number of cities and counties in 2012 Census); Duren Banks, Joshua Hendrix, Matthew Hickman & Tracey Kyckelhahn, Bureau of Just. Stats., U.S. Dep’t of Just., National Sources of Law Enforcement Employment Data 1 (2016), https://bjs.ojp.gov/content/pub/pdf/nsleed.pdf [https://perma.cc/6ZJW-8RCF] (reporting that there are about 18,000 police departments).
  2.  See Sean E. Goodison, Bureau of Just. Stats., U.S. Dep’t of Just., Local Police Departments Personnel, 2020, at 3 (2022) [hereinafter Goodison, Local Police Departments Personnel], https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/lpdp20.pdf [https://perma.‌cc/4MUQ-8KHV]; Connor Brooks, Bureau of Just. Stats., U.S. Dep’t of Just., Sheriffs’ Offices Personnel, 2020, at 3 (2022), https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/‌document/sop20.pdf [https://perma.cc/A5NL-X8WY]. Maria Ponomarenko has provided one of the best accounts of the challenges of small agencies. See generally Maria Ponomarenko, The Small Agency Problem in American Policing, 98 N.Y.U. L. Rev. (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4537989 [https://perma.cc/J3E3-K9‌CN].
  3.  See, e.g., Jennifer Brown & Jesse Paul, Colorado Governor Signs Sweeping Police Accountability Bill into Law. Here’s How It Will Change Law Enforcement., Colo. Sun (June 19, 2020, 9:53 AM), https://coloradosun.com/2020/06/19/colorado-police-accountability-bill-becomes-law/ [https://perma.cc/JNV4-9KM8]; Michael Levenson & Bryan Pietsch, Maryland Passes Sweeping Police Reform Legislation, N.Y. Times (Apr. 10, 2021), https://www.nytimes.com/2021/04/10/us/maryland-police-reform.html [https://perma.cc/JY‌8W-ZL89]; Ned Oliver, Police Reforms Go into Effect in Virginia, Va. Mercury (Mar. 2, 2021, 12:05 AM), https://www.virginiamercury.com/blog-va/police-reforms-go-into-effect-in-virginia/ [https://perma.cc/V82Q-GGJK].
  4.  See, e.g., Liz Crampton, States Passed 243 Policing Bills—and Left Activists Wanting, Politico (May 26, 2021, 4:30 AM), https://www.politico.com/news/2021/05/26/states-policing-bills-490850 [https://perma.cc/D2CW-NHCN] (reporting activist frustration regarding limited reforms after George Floyd’s murder); Mark Berman & David Nakamura, From George Floyd to Tyre Nichols, Pleas for Police Reform Meet Bleak Reality, Wash. Post (Feb. 2, 2023, 7:05 PM), https://www.washingtonpost.com/national-security/2023/02/02/‌memphis-tyre-nichols-police-reform/ [https://perma.cc/XUT6-R7B7] (finding only a “patchwork series of reforms . . . scattered across some of America’s thousands of local police departments” while a “comprehensive approach remains out of reach”); Denise Lavoie, Tatyana Monnay & Juliette Rihl, Some States Are Struggling to Implement Policing Reforms Passed After George Floyd’s Murder, PBS NewsHour (Oct. 31, 2022, 11:50 AM), https://www.pbs.org/newshour/nation/some-states-are-struggling-to-implement-policing-reforms-passed-after-george-floyds-murder [https://perma.cc/7KPH-PQ55] (reporting on difficulties with implementing limited reforms).
  5.  Even calling a street policing team “Scorpion” when it is charged with making numerous traffic stops underscores the problem. See Steve Eder et al., Muscle Cars, Balaclavas and Fists: How the Scorpions Rolled Through Memphis, N.Y. Times, https://www.nytimes.com/2023/‌02/04/us/memphis-police-scorpion.html [https://perma.cc/T2KX-JA2J] (Mar. 1, 2023) (describing the aggressive tactics of the Scorpion squad).
  6.  See, e.g., David A. Graham, How Criminal-Justice Reform Fell Apart, Atlantic (May 26, 2022), https://www.theatlantic.com/ideas/archive/2022/05/george-floyd-anniversary-police-reform-violent-crime/630174/ [https://perma.cc/4Q4A-E33M] (describing how rising crime rattled Americans’ confidence in police reform).
  7.  See, e.g., Alexandra Hutzler, What Is the George Floyd Justice in Policing Act?, ABC News (Feb. 2, 2023, 1:49 PM), https://abcnews.go.com/Politics/george-floyd-justice-policing-act/story?id=96851132 [https://perma.cc/43J5-WQZ4] (explaining legislation proposed in Congress after George Floyd’s murder that was designed to address police misconduct, racial profiling, and use of force).
  8.  George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong.
  9.  See Paul Burstein, American Public Opinion, Advocacy, and Policy in Congress 46–49 (2014) (examining numerous research methodologies and concluding that “we find repeatedly that opinion influences policy” at both the federal and state levels).
  10.  See Pew Rsch. Ctr., Majority of Public Favors Giving Civilians the Power to Sue Police Officers for Misconduct 1 (2020), https://www.pewresearch.org/politics/wp-content/uploads/‌sites/4/2020/07/PP_2020.07.09_Qualified-Immunity_FINAL.pdf [https://perma.cc/4U3U-CZTL] (finding that “[t]wo-thirds of Americans (66%) say that civilians need to have the power to sue police officers to hold them accountable for misconduct”); Steve Crabtree, Most Americans Say Policing Needs ‘Major Changes,’ Gallup (July 22, 2020), https://news.gallup.‌com/poll/315962/americans-say-policing-needs-major-changes.aspx [https://perma.cc/4NUJ-79F3] (finding that “58% of Americans say policing needs major changes”).
  11.  See John Gramlich, Violent Crime Is a Key Midterm Voting Issue, But What Does the Data Say?, Pew Rsch. Ctr. (Oct. 31, 2022), https://www.pewresearch.org/short-reads/2022/10/‌31/violent-crime-is-a-key-midterm-voting-issue-but-what-does-the-data-say/ [https://perma.‌cc/GDU3-TBDS] (“Around six-in-ten registered voters (61%) say violent crime is very important when making their decision about who to vote for in this year’s congressional elections.”); Megan Brenan, Record-High 56% in U.S. Perceive Local Crime Has Increased, Gallup (Oct. 28, 2022), https://news.gallup.com/poll/404048/record-high-perceive-local-crime-increased.aspx [https://perma.cc/6EMF-PMGK] (“The 56% of U.S. adults who report an increase in crime where they live . . . is the highest . . . in Gallup’s trend dating back to 1972.”).
  12.  See Justin McCarthy, Americans Remain Steadfast on Policing Reform Needs in 2022, Gallup (May 27, 2022), https://news.gallup.com/poll/393119/americans-remain-steadfast-policing-reform-needs-2022.aspx [https://perma.cc/8QQ4-YGW5] (“[H]alf of Americans (50%) support ‘major changes’ to policing in the U.S., and another 39% favor ‘minor changes.’”); Jennifer de Pinto, Anthony Salvanto, Fred Backus & Kabir Khanna, Most Americans Think Changes to Policing Are Necessary—CBS News Poll, CBS News (Feb. 5, 2023, 9:30 AM), https://www.cbsnews.com/news/policing-opinion-poll-2023-02-05/ [https://perma.cc/X65Y-7ZH6] (reporting that 47% of Americans support “major changes” to police practices, and 42% support “minor changes”); Juliana Menasce Horowitz, Kiley Hurst & Dana Braga, Support for the Black Lives Matter Movement Has Dropped Considerably From Its Peak in 2020, Pew Rsch. Ctr. (June 14, 2023), https://www.pewresearch.org/social-trends/2023/06/14/support-for-the-black-lives-matter-movement-has-dropped-considerably-from-its-peak-in-2020/ [https://perma.cc/P4JZ-QX93] (finding that despite decline in support, Black Lives Matter retains the support of fifty-one percent of Americans).
  13.  See Natasha Chisholm & Anika Dandekar, Majorities of Voters Support Criminal Charges for Those Involved in Tyre Nichols’ Killing and a Range of Police Reforms, Data for Progress (Mar. 2, 2023), https://www.dataforprogress.org/blog/2023/3/2/majorities-of-voters-support-criminal-charges-for-those-involved-in-tyre-nichols-killing-and-a-range-of-policing-reforms [https://perma.cc/WFS2-PTQR] (finding that Americans prefer the use of first responders for mental health issues by a fifty-three-point margin); Justine Coleman, Most Say Police Shouldn’t Be Primary Responders for Mental Health Crises: NAMI Poll, Hill (Nov. 15, 2021, 11:10 AM), https://thehill.com/policy/healthcare/581556-majority-say-professionals-should-respond-to-mental-health-crises-instead/ [https://perma.cc/S7QW-WATB] (“[N]early 80 percent of respondents said mental health professionals, not police, should respond to mental health and suicide situations.”).
  14.  Much literature is devoted to parsing the federalism concerns raised as a result of congressional regulation of policing. See, e.g., W. Paul Koenig, Does Congress Abuse its Spending Clause Power by Attaching Conditions on the Receipt of Federal Law Enforcement Funds to a State’s Compliance with “Megan’s Law”?, 88 J. Crim. L. & Criminology 721, 741 (1998).
  15.  See, e.g., 166 Cong. Rec. H2460 (daily ed. June 25, 2020) (statement of Rep. John H. Rutherford) (“We cannot be so eager to make major policing reforms on the Federal level that we overcorrect and prevent good officers on the street from being able to do their jobs.”); Kathleen F. Brickey, The Commerce Clause and Federalized Crime: A Tale of Two Thieves, 543 Annals Am. Acad. Pol. & Soc. Sci. 27, 38 (1996) (noting that the National Association of Attorneys General and the National Conference of State Legislatures “have urged Congress to recognize that primary responsibility for criminal law enforcement belongs to the states”); William Parlett, Criminal Law and Cooperative Federalism, 56 Am. Crim. L. Rev. 1663, 1665–66 (2019) (describing how cooperative prosecution programs concentrate too much power in the hands of federal executive branch officials and rob state and local communities of their “voice”).
  16.  See, e.g., Manu Raju, Clare Foran & Ted Barrett, GOP and Democrats Clash Over Police Reform in Congress as Pressure for Action Mounts, CNN (June 16, 2020, 8:28 PM), https://www.cnn.com/2020/06/16/politics/police-reform-senate-republicans/index.html [https://perma.cc/KX7M-ZDNM] (reporting then-Senate Majority Leader Mitch McConnell’s opposition to federal police reform efforts as “overreach” and an attempt to “federalize all of these issues”); see also Richard A. Epstein, The Supreme Court, 1987 Term—Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 45–46, 104 (1988) (raising concerns that Congress will use its spending powers to subvert the Twenty-First Amendment and Tenth Amendment such that “a presumption of distrust should attach to all government action”).
  17.  See Roger J. Miner, The Consequences of Federalizing Criminal Law, 4 Crim. Just. 16, 18 (1989) (describing expansion of federal jurisdiction to crimes including robbery, extortion, loan-sharking, and drug trafficking); Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 Annals Am. Acad. Pol. & Soc. Sci. 39, 42 (1996) (“Congress enacted a series of federal crimes that targeted violence against private individuals . . . to assert jurisdiction over an increasingly broad range of conduct clearly within the traditional police powers of the states.”); Partlett, supra note 15, at 1663 (“Cooperative federalism is now commonplace in the prosecution of street-level drug and gun crime . . . , [which] . . . weakens the ability of states to function as political entities that can hold their law enforcement officers accountable in an area of traditional state police power.”).
  18.  See Allison McCartney, Paul Murray & Mira Rojanasakul, After Pouring Billions into Militarization of U.S. Cops, Congress Weighs Limits, Bloomberg (July 1, 2020), https://www.bloomberg.com/graphics/2020-police-military-equipment/ [https://perma.cc/‌C7V9-JUNF]; Jay Stanley & Bennett Stein, FOIA Documents Reveal Massive DEA Program to Record Americans’ Whereabouts with License Plate Readers, ACLU, https://www.aclu.org‌/news/smart-justice/foia-documents-reveal-massive-dea-program-record-americans-whereab‌outs-license [https://perma.cc/ZZ8D-UKDT] (Jan. 28, 2015) (explaining that the Drug Enforcement Administration (“DEA”) partners with state and local law enforcement agencies around the country to collect license plate location data for its database).
  19.  See Farhang Heydari, The Invisible Driver of Policing, 76 Stan. L. Rev. (forthcoming 2024) (manuscript at 1–2) [hereinafter Heydari, The Invisible Driver of Policing], https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4369747 [https://perma.cc/5FYF-MZ‌FW].
  20.  Younger v. Harris, 401 U.S. 37, 44 (1971) (“[T]he notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways . . . is referred to by many as ‘Our Federalism’ . . . .”).
  21.  See Special Litigation Section, U.S. Dep’t of Just.: C.R. Div., https://www.justice.gov/‌crt/special-litigation-section [https://perma.cc/268W-7983] (last visited Sept. 24, 2023).
  22.  See Law Enforcement, Bureau of Just. Stats. (Feb. 18, 2021), https:/bjs.ojp.gov/topics/‌law-enforcement#recent-faqs-how-many-full-time-federal-law-enforcement [https://perma.c‌c/NJQ7-WNLX] (estimating that in 2020, there were 137,000 full-time federal law enforcement officers); see also Lisa M. Seghetti, Cong. Rsch. Serv., RL32270, Enforcing Immigration Law: The Role of State and Local Law Enforcement 3 (2009), https:/www.everycrsreport.com/files/20090311_RL32270_a7bbe8763684424b48f0d4b1d61‌c92412ac50d0c.pdf [https://perma.cc/N5AR-EBMB] (providing examples of cooperation between federal and local law enforcement on immigration); Michael M. Hethmon, The Chimera and the Cop: Local Enforcement of Federal Immigration Law, 8 UDC/DCSL L. Rev. 83, 139 (2004) (detailing high level of federal-local law enforcement cooperation).
  23.  See, e.g., US Records Show Physical, Sexual Abuse at Border, Hum. Rts. Watch (Oct. 21, 2021, 7:00 AM), https://www.hrw.org/news/2021/10/21/us-records-show-physical-sexua‌l-abuse-border [https://perma.cc/Z97M-W5F5] (reporting on abuse by Customs and Border Protection officers, Border Patrol agents, and Immigration and Customs Enforcement officials); Stan Wilson, Daniel Chong, Forgotten in DEA Cell, Settles Suit for $4.1 Million, CNN (Aug. 1, 2013, 7:38 AM), https://www.cnn.com/2013/07/30/justice/california-dea-settle‌ment/ [https://perma.cc/B9XE-EP9P] (finding that DEA agents detained a student in a windowless cell with no food or water for five days).
  24.  See Aaron Morrison, 50-Year War on Drugs Imprisoned Millions of Black Americans, PBS NewsHour (July 26, 2021, 12:55 PM), https://www.pbs.org/newshour/nation/50-year-war-on-drugs-imprisoned-millions-of-black-americans [https://perma.cc/DZV2-H4DR] (noting that the federal government’s policies pursuant to the War on Drugs resulted in the mass incarceration of millions of Americans and undermined their access to voting and gun rights).
  25.  See Jennifer McDonald & Dick M. Carpenter II, Frustrating, Corrupt, Unfair: Civil Forfeiture in the Words of Its Victims, Inst. for Just. (Sept. 28, 2021), https://ij.org/report/‌frustrating-corrupt-unfair/ [https://perma.cc/US2N-2YLE] (“Most states across the country, not to mention the federal government, continue to enforce civil forfeiture laws that offer few due process protections and promote policing for profit.”).
  26.  See generally Farhang Heydari, Rethinking Federal Inducement of Pretext Stops, 2024 Wis. L. Rev. (forthcoming) [hereinafter Heydari, Rethinking Federal Inducement of Pretext Stops] (cataloguing the ways in which federal agencies promote pretextual traffic stops); Heydari, The Invisible Driver of Policing, supra note 19 (calling attention to the National Highway and Traffic Safety Agency as a proponent of pretextual traffic stops).
  27.  See Chris Baumohl, Two Years In, COVID-19 Relief Money Fueling Rise of Police Surveillance, Elec. Priv. Info. Ctr. (Mar. 9, 2023), https://epic.org/two-years-in-covid-19-relie‌f-money-fueling-rise-of-police-surveillance/ [https://perma.cc/5VLG-Z5RM] (explaining that the expansion of surveillance technologies results from “federal funding, which lowers the cost of acquisition at the state and local level”).
  28.  But see Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945, 32961 (May 25, 2022) (requiring the Attorney General to develop standards for accreditation of police departments by independent credentialing agencies and to determine if discretionary grants should depend on accreditation).
  29.  See C.R. Div., U.S. Dep’t of Just., The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994–Present, at 3 (2017) [hereinafter C.R. Div., Police Reform Work: 1994–Present], https://www.justice.gov/crt/file/922421/download [https://perma.cc/LQN3-RME7] (describing the work of the Special Litigation Section).
  30.  See Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1, 22, 26–27, 57–58 (2009) [hereinafter Harmon, Promoting Civil Rights] (arguing that the use of consent decrees, which frequently include certain requirements, such as training and policies on use of force, can incentivize other agencies to adopt such reforms); Allison T. Chappell, Consent Decrees and Police Reform: A Piece of the Puzzle or a Puzzling Policy, 16 Criminology & Pub. Pol’y 571, 572 (2017) (finding that consent decrees can lead to policy change because police departments seek to avoid DOJ scrutiny).
  31.  President Biden’s Executive Order (“EO”) has a provision fostering accreditation of policing agencies, which could be the beginning of standard setting, although those accreditation standards as adopted by DOJ were insufficiently demanding. See infra notes 354–55 and accompanying text.
  32.  Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945 (May 25, 2022).
  33.  See Jon Schuppe, Trump Says His Policing Order Is a ‘Big Step.’ Activists Call It ‘Breadcrumbs.’, NBC News (June 17, 2020, 10:35 AM), https://www.nbcnews.com/news/us-news/trump-says-his-policing-order-big-step-activists-call-it-n1231269 [https://perma.cc/PR‌9G-ZQYR] (noting that Trump’s executive order concerning policing after George Floyd’s murder was “paltry”).
  34.  One year in, the federal government released a long list of the actions it had taken, and we do not mean in any way to minimize their import. See Fact Sheet: Biden-⁠Harris Administration Highlights Accomplishments on Anniversary of Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety, White House (May 25, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/25/fact-sheet-biden-harris-administration-highlights-accomplishments-on-anniversary-of-historic-executive-order-to-advance-effective-accountable-policing-and-strengthen-public-safety/ [https://perma.cc/U4HM-WNPR] (highlighting actions taken under EO 14,074, including the creation of the “National Law Enforcement Accountability Database,” the adoption of new federal law enforcement use of force policies, and grants to local law enforcement “to adopt and implement best practices” in policing). Every step in the right direction is a step in the right direction. Still, much of that list itself was a down payment on enormous work yet to be done.
  35.  See Exec. Order No. 14,074, 87 Fed. Reg. at 32945.