Note

On Standing, Sovereignty, and Constitutional Awkwardness

Introduction

The object of the grant of exclusive legislation over the district was, therefore, national in the highest sense, and the city organized under the grant became the city, not of a state, not of a district, but of a nation.

– William Howard Taft, in Grether v. Wright, 75 F. 742, 757 (6th Cir. 1896).

In the first year of his second term, President Trump deployed the National Guard in twenty-one states and the District of Columbia.1 1.Tracking Domestic Deployments of the U.S. Military, Lawfare, https://www.lawfaremed‌ia.org/projects-series/trials-of-the-trump-administration/tracking-domestic-deployments-of-t‌he-u.s.-military [https://perma.cc/TZ89-CC49] (last updated Mar. 24, 2026). This count includes all “federally supported National Guard, Reserve, and Active-Duty deployments for operational non-disaster missions” after President Trump’s second inauguration. Id.Show More The goal of these deployments was to support law enforcement activities, particularly those of Immigration and Customs Enforcement2 2.See, e.g., Memorandum on Department of Defense Security for the Protection of Department of Homeland Security Functions, 2025 Daily Comp. Pres. Doc. 672 (June 7, 2025).Show More and local police.3 3.See, e.g., Memorandum on Restoring Law and Order in Memphis, 2025 Daily Comp. Pres. Doc. 916 (Sep. 15, 2025).Show More However, the sense of additional, more latent motivations persisted throughout the deployments.4 4.See Remarks to the Department of War in Quantico, Virginia, 2025 Daily Comp. Pres. Doc. 970, at 12 (Sep. 30, 2025) (“And I told Pete we should use some of these dangerous cities as training grounds for our military . . . .”); Remarks Following a Briefing on the Atlantic Hurricane and Wildfire Season and Preparedness Efforts, 2025 Daily Comp. Pres. Doc. 679, at 6 (June 10, 2025) (“And in Minneapolis, that city was burning down. It was 7 days. And I said, ‘I don’t care.’ The Governor, . . . that just happened to be running for Vice President—a total—you talk about an incompetent Governor.”).Show More

Several of the states quickly filed suit in federal court. To establish their standing to sue, each state alleged that the deployments caused a similar panoply of harms.5 5.See Complaint for Declaratory and Injunctive Relief at 25–29, Oregon v. Trump, 802 F. Supp. 3d 1277 (D. Or. 2025) (No. 25-cv-01756) [hereinafter Oregon Complaint]; Complaint for Declaratory and Injunctive Relief at 14–15, Newsom v. Trump, 797 F. Supp. 3d 1092 (N.D. Cal. 2025) (No. 25-cv-04870) [hereinafter California Complaint]; Complaint for Emergency, Declaratory, and Injunctive Relief at 46–53, Illinois v. Trump, 2025 WL 2886645 (N.D. Ill. Oct. 10, 2025) (No. 25-cv-12174) [hereinafter Illinois Complaint]; Complaint for Declaratory and Injunctive Relief at 32–51, Minnesota v. Noem, 818 F. Supp. 3d 1030 (D. Minn. 2026) (No. 26-cv-00190) [hereinafter Minnesota Complaint]. Because Governor Bill Lee affirmatively requested the deployment to the City of Memphis, the State of Tennessee has not filed suit, though there is a pending challenge in state court brought by Mayor Lee Harris of Shelby County. See Complaint at 1–2, Harris v. Lee, No. 25-1461-I (Tenn. Ch. Ct. Oct. 17, 2025), https://www.nilc.org/wp-content/uploads/‌2025/10/Harris-v.-Lee_Complaint.pdf [https://perma.cc/23YZ-VR25]. Likewise, Louisiana Governor Jeff Landry requested and helped coordinate the deployment to New Orleans. See Gov. Jeff Landry Announces Extension of Louisiana National Guard Security Mission in New Orleans, La. Off. of the Governor (Mar. 2, 2026), https://gov.louisiana.gov/news/5069 [https://perma.cc/J3BU-JNSU].Show More On one end of the spectrum, they alleged harm to their proprietary interests.6 6.See, e.g., Minnesota Complaint, supra note 5, at 38–40; see also Seth Davis, The New Public Standing, 71 Stan. L. Rev. 1229, 1242–50, 1292–98 (2019) (discussing state standing based on monetary injuries that “mirror those to private parties”).Show More Harms of this sort are no different from those “pocketbook” injuries routinely asserted by private parties in litigation.7 7.See Katherine Mims Crocker, Not-So-Special Solicitude, 109 Minn. L. Rev. 815, 838 (2024) [hereinafter Crocker, Not-So-Special] (“Pocketbook injuries for individuals, economic injuries for organizations, and proprietary injuries for states are all the same thing.”).Show More But on the other end of the spectrum, the states also availed themselves of the unique categories of injuries cognizable under the doctrine of state standing: injuries to their “sovereign” and “quasi-sovereign” interests.8 8.See, e.g., Illinois Complaint, supra note 5, at 46–48 (sovereign harms); id.at 51–52 (quasi-sovereign harms). See generallyAnn Woolhandler & Michael G. Collins, Reining in State Standing, 94 Notre Dame L. Rev. 2015, 2016–17 (2019) [hereinafter Woolhandler & Collins, Reining in State Standing] (succinctly categorizing the types of harms that give rise to state standing); Crocker, Not-So-Special, supranote 7, at 835–37 (going into greater depth on these categories).Show More As the perceived role of the states as institutional actors has expanded—and as standing doctrine has evolved in general—these sovereign-based harms have assumed an “extraordinary scope,”9 9.Crocker, Not-So-Special, supra note 7, at 894; see also Ann Woolhandler & Michael G. Collins, State Standing, 81 Va. L. Rev. 387, 393–94, 459–64 (1995) [hereinafter Woolhandler & Collins, State Standing] (tying the development of modern state standing doctrine to the “general change from a common-law, rights-based jurisprudence to a more positivist, interest-based one in which governmental power and private rights became increasingly commensurable”).Show More though they remain controversial.10 10.See Missouri v. Biden, 52 F.4th 362, 369 (8th Cir. 2022) (“Whether and when alleged sovereign injuries can constitute the concrete and particularized injury in fact required for Article III standing is a controversial, unsettled question . . . .”).Show More

The D.C.11 11.Regarding terminology: “District” or “District of Columbia” refers to the entity mentioned in Article I, Section 8, Clause 17 of the Constitution, whereas “D.C.” or “D.C. government” refers to the city of the District of Columbia and the local government thereof. As will be shown, this distinction is important. See infra Part III.Show More government filed its own challenge to the National Guard deployment in the District. Filing in the U.S. District Court for the District of Columbia, D.C. sought declaratory and injunctive relief for an array of harms similar to those alleged by the states, including an “irreparable sovereign injury” to its rights of self-governance under the D.C. Home Rule Act.12 12.Complaint for Declaratory and Injunctive Relief at 35, District of Columbia v. Trump, 810 F. Supp. 3d 19 (D.D.C. 2025) (No. 25-cv-03005) [hereinafter D.C. Complaint]; District of Columbia Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (codified as amended at D.C. Code §§ 1-201.01–207.71 (2026)).Show More D.C.’s increasing participation in litigation against the federal government13 13.See, e.g., District of Columbia v. Trump, 291 F. Supp. 3d 725, 732–36 (D. Md. 2018) (challenging, with Maryland, President Trump’s ownership stake in D.C.-area hotels and restaurants as violative of the Emoluments Clause), rev’d sub nom. In re Trump, 928 F.3d 360 (4th Cir. 2019), rev’d en banc,958 F.3d 274 (4th Cir. 2020), cert. granted and vacated as moot sub nom. Trump v. District of Columbia, 141 S. Ct. 1262 (2021) (mem.); District of Columbia v. U.S. Dep’t of Agric., 496 F. Supp. 3d 213, 219 (D.D.C. 2020). D.C. commonly participates in state-led lawsuits as a non-named plaintiff as well. See Dep’t of Com. v. New York, 139 S. Ct. 2551, 2563 (2019); New York v. U.S. Dep’t of Lab., 363 F. Supp. 3d 109, 116–17 (D.D.C. 2019); U.S. House of Representatives v. Price, No. 16-5202, 2017 WL 3271445, at *1 (D.C. Cir. Aug. 1, 2017); Complaint for Declaratory, Injunctive, and Mandamus Relief at 2, California v. McMahon, No. 25-cv-00329 (D.R.I. July 14, 2025).Show More may obscure the significance of this alleged “sovereign injury.” However, the Administration’s staunch resistance to D.C.’s claim in federal court—including its decision to increase the deployment following the complaint14 14.Compare D.C. Complaint, supra note 12, at 29 (reporting a presence of 2,290 Guardsmen by September 2025), with Letter from Phillip L. Swagel, Dir., Cong. Budget Off., to the Hon. Jeff Merkley, Ranking Member, U.S. Senate Comm. on Budget 8 (Jan. 28, 2026) (reporting a presence of 2,950 Guardsmen in the District by the end of December 2025).Show More while withdrawing from other cities and abandoning its appeals—provides the first reason to view D.C.’s claims with skepticism.15 15.Specifically, after a setback in the Supreme Court, the Administration agreed to withdraw the National Guard from Chicago, Los Angeles, and Portland. See Trump v. Illinois, 146 S. Ct. 432, 434 (2025) (“[A]t least in this posture, the Government has not carried its burden to show that [10 U.S.C.] § 12406(3) permits the President to federalize the Guard in the exercise of inherent authority to protect federal personnel and property in Illinois.”); Rob McLean, Trump Says He’s Removing National Guard Troops from Chicago, Los Angeles and Portland, NBC News (Dec. 31, 2025, at 20:38 ET), https://www.nbcnews.c‌om/politics/trump-administration/trump-removing-national-guard-troops-chicago-los-angele‌s-portland-rcna251746 [https://perma.cc/6BHF-FQWF]. The Oregon litigation resolved soon thereafter, except for some ancillary issues. See, e.g., Response to State of Oregon’s Motion to Modify Protective Order and Clarify the Confidentiality Status of Certain Deposition Videos, Oregon v. Trump, No. 25-cv-01756 (D. Or. Mar. 24, 2026). The suits in Illinois and California continued regarding whether the withdrawals mooted the claims. See Plaintiffs’ Response in Opposition to Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction Under Rule 12(b)(1), Illinois v. Trump, No. 25-cv-12174 (N.D. Ill. Mar. 10, 2026); Plaintiffs-Appellees’ Opposition to Motion to Dismiss, Newsom v. Trump, No. 25-3727 (9th Cir. Jan. 28, 2026); see also Memorandum of Law in Support of Motion to Dismiss at 4–15, Minnesota v. Noem, No. 26-cv-00190 (D. Minn. Mar. 16, 2026) (arguing for dismissal of Minnesota and the Twin Cities’ complaint on standing and mootness grounds). In addition to D.C., the Administration declined to withdraw the Guardsmen from New Orleans and Memphis; but recall that those deployments were uncontested by the states of Louisiana and Tennessee, respectively. See supra note 5.Show More

I argue that D.C. lacks Article III standing to assert sovereign harms. More broadly, using its challenge to President Trump’s National Guard deployment as an illustration, I argue that D.C.’s fundamentally non-sovereign status—derived entirely from and subordinate to Congress’s power—makes its requested extension of state standing principles both doctrinally unsound and institutionally problematic. Doctrinally, such an extension would dilute the conceptual dimensions of both the “District” and “sovereignty” under the Constitution. Institutionally, it would exacerbate the increasing politicization of public law litigation and invite the emergence of a uniquely powerful municipal “omniplaintiff.”16 16.Ann Woolhandler & Julia D. Mahoney, State Standing After Biden v. Nebraska, 2023 Sup. Ct. Rev. 303, 303.Show More And these costs in doctrinal clarity and institutional stability would be entirely unnecessary; despite its non-sovereignty, D.C. is by no means powerless to challenge executive action in the District, such as the National Guard deployment. Rather, it remains a viable plaintiff under the same theories that non-sovereigns routinely assert in public interest litigation.

At bottom, this Note respects our Constitution’s deliberate distinctions between sovereignty and functional autonomy, and between the District of Columbia and every other constitutional entity. Far from resting on constitutional line drawing, however, this Note undertakes to delineate the concept of “sovereignty” and explain why D.C. lacks it. In so doing, it adds clarity to the doctrine of sovereign state standing. More importantly, it serves to remind us that the separation of powers exists precisely to prevent well-intentioned exceptions to constitutional structure in times of perceived crisis.17 17.See New York v. United States, 505 U.S. 144, 187 (1992) (“Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear ‘formalistic’ in a given case . . . because . . . of the era’s perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”).Show More

This Note advances in four main parts. Part I, by way of background, outlines the D.C. National Guard litigation and the doctrine of state standing that D.C. attempts to invoke. Part II explains the intricate and anomalous nature of the District under the Constitution, considering its status in its own right and in relation to its oft-asserted analogues: the territories and the federal enclaves. It also briefly explores the constitutional status of the American Indian tribes to illustrate a particular point on the nature of “sovereignty.” Understanding the District’s status, in my view, is a precondition to understanding why D.C. lacks sovereign standing.

After establishing this proper framing, this Note argues in Part III that the District of Columbia is fundamentally non-sovereign, and thus, that D.C. lacks the capacity to suffer sovereign harms, regardless of the breadth of its home rule authority. It makes this argument in two steps. First, by proving that the D.C. government is municipal in the ordinary sense, exercising power that is permissive, revocable, and fully subordinate to Congress’s plenary authority—closely analogous to the authority of any local government. Second, by establishing that Congress, as the source of sovereignty in the District, did not (and could not) delegate to D.C. any sovereign power in the D.C. Home Rule Act—here too being closely analogous to a state’s grant of home rule to its local subdivisions. It explains how “sovereignty” in the American constitutional order is nondelegable and tied to status. Entities are not given sovereignty by a superior government; they become sovereign through a preordained process. Part III concludes by addressing an emerging theory that, if accepted, would raise an ambiguity with a specific subset of sovereign-based harms. It explains, however, that this Note’s central thesis remains undisturbed irrespective of this theory’s validity.

Returning to the National Guard case study, Part IV elaborates on the pragmatic interests implicated by D.C.’s lack of sovereignty and suggests other potential avenues D.C. may use to challenge the National Guard deployment—and, derivatively, federal executive action in general.

  1.  Tracking Domestic Deployments of the U.S. Military, Lawfare, https://www.lawfaremed‌ia.org/projects-series/trials-of-the-trump-administration/tracking-domestic-deployments-of-t‌he-u.s.-military [https://perma.cc/TZ89-CC49] (last updated Mar. 24, 2026). This count includes all “federally supported National Guard, Reserve, and Active-Duty deployments for operational non-disaster missions” after President Trump’s second inauguration. Id. ↑
  2.  See, e.g., Memorandum on Department of Defense Security for the Protection of Department of Homeland Security Functions, 2025 Daily Comp. Pres. Doc. 672 (June 7, 2025). ↑
  3.  See, e.g., Memorandum on Restoring Law and Order in Memphis, 2025 Daily Comp. Pres. Doc. 916 (Sep. 15, 2025). ↑
  4.  See Remarks to the Department of War in Quantico, Virginia, 2025 Daily Comp. Pres. Doc. 970, at 12 (Sep. 30, 2025) (“And I told Pete we should use some of these dangerous cities as training grounds for our military . . . .”); Remarks Following a Briefing on the Atlantic Hurricane and Wildfire Season and Preparedness Efforts, 2025 Daily Comp. Pres. Doc. 679, at 6 (June 10, 2025) (“And in Minneapolis, that city was burning down. It was 7 days. And I said, ‘I don’t care.’ The Governor, . . . that just happened to be running for Vice President—a total—you talk about an incompetent Governor.”). ↑
  5.  See Complaint for Declaratory and Injunctive Relief at 25–29, Oregon v. Trump, 802 F. Supp. 3d 1277 (D. Or. 2025) (No. 25-cv-01756) [hereinafter Oregon Complaint]; Complaint for Declaratory and Injunctive Relief at 14–15, Newsom v. Trump, 797 F. Supp. 3d 1092 (N.D. Cal. 2025) (No. 25-cv-04870) [hereinafter California Complaint]; Complaint for Emergency, Declaratory, and Injunctive Relief at 46–53, Illinois v. Trump, 2025 WL 2886645 (N.D. Ill. Oct. 10, 2025) (No. 25-cv-12174) [hereinafter Illinois Complaint]; Complaint for Declaratory and Injunctive Relief at 32–51, Minnesota v. Noem, 818 F. Supp. 3d 1030 (D. Minn. 2026) (No. 26-cv-00190) [hereinafter Minnesota Complaint]. Because Governor Bill Lee affirmatively requested the deployment to the City of Memphis, the State of Tennessee has not filed suit, though there is a pending challenge in state court brought by Mayor Lee Harris of Shelby County. See Complaint at 1–2, Harris v. Lee, No. 25-1461-I (Tenn. Ch. Ct. Oct. 17, 2025), https://www.nilc.org/wp-content/uploads/‌2025/10/Harris-v.-Lee_Complaint.pdf [https://perma.cc/23YZ-VR25]. Likewise, Louisiana Governor Jeff Landry requested and helped coordinate the deployment to New Orleans. See Gov. Jeff Landry Announces Extension of Louisiana National Guard Security Mission in New Orleans, La. Off. of the Governor (Mar. 2, 2026), https://gov.louisiana.gov/news/5069 [https://perma.cc/J3BU-JNSU]. ↑
  6.  See, e.g., Minnesota Complaint, supra note 5, at 38–40; see also Seth Davis, The New Public Standing, 71 Stan. L. Rev. 1229, 1242–50, 1292–98 (2019) (discussing state standing based on monetary injuries that “mirror those to private parties”). ↑
  7.  See Katherine Mims Crocker, Not-So-Special Solicitude, 109 Minn. L. Rev. 815, 838 (2024) [hereinafter Crocker, Not-So-Special] (“Pocketbook injuries for individuals, economic injuries for organizations, and proprietary injuries for states are all the same thing.”). ↑
  8.  See, e.g., Illinois Complaint, supra note 5, at 46–48 (sovereign harms); id. at 51–52 (quasi-sovereign harms). See generally Ann Woolhandler & Michael G. Collins, Reining in State Standing, 94 Notre Dame L. Rev. 2015, 2016–17 (2019) [hereinafter Woolhandler & Collins, Reining in State Standing] (succinctly categorizing the types of harms that give rise to state standing); Crocker, Not-So-Special, supra note 7, at 835–37 (going into greater depth on these categories). ↑
  9.  Crocker, Not-So-Special, supra note 7, at 894; see also Ann Woolhandler & Michael G. Collins, State Standing, 81 Va. L. Rev. 387, 393–94, 459–64 (1995) [hereinafter Woolhandler & Collins, State Standing] (tying the development of modern state standing doctrine to the “general change from a common-law, rights-based jurisprudence to a more positivist, interest-based one in which governmental power and private rights became increasingly commensurable”). ↑
  10.  See Missouri v. Biden, 52 F.4th 362, 369 (8th Cir. 2022) (“Whether and when alleged sovereign injuries can constitute the concrete and particularized injury in fact required for Article III standing is a controversial, unsettled question . . . .”). ↑
  11.  Regarding terminology: “District” or “District of Columbia” refers to the entity mentioned in Article I, Section 8, Clause 17 of the Constitution, whereas “D.C.” or “D.C. government” refers to the city of the District of Columbia and the local government thereof. As will be shown, this distinction is important. See infra Part III. ↑
  12.  Complaint for Declaratory and Injunctive Relief at 35, District of Columbia v. Trump, 810 F. Supp. 3d 19 (D.D.C. 2025) (No. 25-cv-03005) [hereinafter D.C. Complaint]; District of Columbia Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (codified as amended at D.C. Code §§ 1-201.01–207.71 (2026)). ↑
  13.  See, e.g., District of Columbia v. Trump, 291 F. Supp. 3d 725, 732–36 (D. Md. 2018) (challenging, with Maryland, President Trump’s ownership stake in D.C.-area hotels and restaurants as violative of the Emoluments Clause), rev’d sub nom. In re Trump, 928 F.3d 360 (4th Cir. 2019), rev’d en banc, 958 F.3d 274 (4th Cir. 2020), cert. granted and vacated as moot sub nom. Trump v. District of Columbia, 141 S. Ct. 1262 (2021) (mem.); District of Columbia v. U.S. Dep’t of Agric., 496 F. Supp. 3d 213, 219 (D.D.C. 2020). D.C. commonly participates in state-led lawsuits as a non-named plaintiff as well. See Dep’t of Com. v. New York, 139 S. Ct. 2551, 2563 (2019); New York v. U.S. Dep’t of Lab., 363 F. Supp. 3d 109, 116–17 (D.D.C. 2019); U.S. House of Representatives v. Price, No. 16-5202, 2017 WL 3271445, at *1 (D.C. Cir. Aug. 1, 2017); Complaint for Declaratory, Injunctive, and Mandamus Relief at 2, California v. McMahon, No. 25-cv-00329 (D.R.I. July 14, 2025). ↑
  14.  Compare D.C. Complaint, supra note 12, at 29 (reporting a presence of 2,290 Guardsmen by September 2025), with Letter from Phillip L. Swagel, Dir., Cong. Budget Off., to the Hon. Jeff Merkley, Ranking Member, U.S. Senate Comm. on Budget 8 (Jan. 28, 2026) (reporting a presence of 2,950 Guardsmen in the District by the end of December 2025). ↑
  15.  Specifically, after a setback in the Supreme Court, the Administration agreed to withdraw the National Guard from Chicago, Los Angeles, and Portland. See Trump v. Illinois, 146 S. Ct. 432, 434 (2025) (“[A]t least in this posture, the Government has not carried its burden to show that [10 U.S.C.] § 12406(3) permits the President to federalize the Guard in the exercise of inherent authority to protect federal personnel and property in Illinois.”); Rob McLean, Trump Says He’s Removing National Guard Troops from Chicago, Los Angeles and Portland, NBC News (Dec. 31, 2025, at 20:38 ET), https://www.nbcnews.c‌om/politics/trump-administration/trump-removing-national-guard-troops-chicago-los-angele‌s-portland-rcna251746 [https://perma.cc/6BHF-FQWF]. The Oregon litigation resolved soon thereafter, except for some ancillary issues. See, e.g., Response to State of Oregon’s Motion to Modify Protective Order and Clarify the Confidentiality Status of Certain Deposition Videos, Oregon v. Trump, No. 25-cv-01756 (D. Or. Mar. 24, 2026). The suits in Illinois and California continued regarding whether the withdrawals mooted the claims. See Plaintiffs’ Response in Opposition to Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction Under Rule 12(b)(1), Illinois v. Trump, No. 25-cv-12174 (N.D. Ill. Mar. 10, 2026); Plaintiffs-Appellees’ Opposition to Motion to Dismiss, Newsom v. Trump, No. 25-3727 (9th Cir. Jan. 28, 2026); see also Memorandum of Law in Support of Motion to Dismiss at 4–15, Minnesota v. Noem, No. 26-cv-00190 (D. Minn. Mar. 16, 2026) (arguing for dismissal of Minnesota and the Twin Cities’ complaint on standing and mootness grounds). In addition to D.C., the Administration declined to withdraw the Guardsmen from New Orleans and Memphis; but recall that those deployments were uncontested by the states of Louisiana and Tennessee, respectively. See supra note 5. ↑
  16.  Ann Woolhandler & Julia D. Mahoney, State Standing After Biden v. Nebraska, 2023 Sup. Ct. Rev. 303, 303. ↑

  17.  See New York v. United States, 505 U.S. 144, 187 (1992) (“Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear ‘formalistic’ in a given case . . . because . . . of the era’s perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”). ↑

The Indian Treaty Power

Introduction

“Great nations, like great men, should keep their word.”1 1.Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting).Show More

The Supreme Court has an Indian law problem.2 2.This Note uses “Indian” and “Native American” interchangeably to refer to indigenous peoples, consistent with the norms of Indian law scholarship. See, e.g., Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1014 n.3 (2015).Show More For the first century of this country’s history, Indian tribes were treated as sovereign nations capable of signing treaties, selling their lands, and governing themselves. But 140 years ago, in United States v. Kagama, the Court changed course, bestowing upon the federal government a “plenary”—that is, an exclusive and unlimited—power over Indian affairs, which extended even to regulating the tribes’ internal affairs.3 3.118 U.S. 375, 384–85 (1886).Show More Kagama has been described as “the ghost of manifest destiny that will not let go,”4 4.M. Henry Ishitani & Alexandra Fay, Revising the Indian Plenary Power Doctrine, 29 Mich. J. Race & L. 1, 2 (2024).Show More and the plenary power it inaugurated has been condemned by scholars as untethered from the Constitution,5 5.See, e.g., Philip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31, 43 (1996) (observing that the “text of the Constitution lacks much of a hint of any plenary power”).Show More rooted in racialized stereotypes,6 6.See, e.g., Ishitani & Fay, supra note 4, at 2–3.Show More at odds with historical practice recognizing Indian sovereignty,7 7.See, e.g., Steven Paul McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. Rev. L. & Soc. Change 217, 218–20 (1993).Show More and “repugnant to the doctrine of enumerated powers.”8 8.Id. at 253.Show More Despite the criticisms lobbed at the plenary power, it has facilitated virtually the entire statutory framework governing Indian affairs—both good and bad. In addition to policies that have enabled the displacement and ethnic cleansing of Indian tribes,9 9.See Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 227 (1984) (describing the criminalization of indigenous religions and the removal of Native children to boarding schools).Show More the power also serves as the basis for most of Title 25—the portion of the United States Code that houses legislation designed to benefit the tribes in areas ranging from education to healthcare to child welfare.10 10.See Ishitani & Fay, supra note 4, at 17; Ablavsky, supra note 2, at 1016.Show More

But 2023’s Haaland v. Brackeen highlighted cracks in the plenary power’s foundation. Brackeen considered, but did not settle, the constitutionality of the Indian Child Welfare Act (“ICWA”),11 11.Haaland v. Brackeen, 143 S. Ct. 1609, 1629–31 (2023).Show More which regulates state custody proceedings regarding the placement of Indian children with the aim of keeping them in their tribal communities.12 12.Indian Child Welfare Act, 25 U.S.C. §§ 1901–1963.Show More If the Court had faithfully applied Kagama, this would have been an easy case—it could have simply invoked the plenary power without further discussion. But it did not. While the Court gestured at the doctrine, it also canvassed possible bases for ICWA rooted in the Constitution’s text and structure.13 13.Brackeen, 143 S. Ct. at 1630–32.Show More Among the potential alternatives the Court considered were the Indian Commerce Clause,14 14.Id. at 1630.Show More the Treaty Clause,15 15.Id. at 1631.Show More and the federal government’s inherent power over foreign affairs.16 16.Id.Show More But the opinion never settled which textual basis, if any, could sustain ICWA.17 17.Id. at 1630–31 (upholding ICWA because petitioners failed to discharge their “burden of establishing ICWA’s unconstitutionality”).Show More By invoking the plenary power while in the same breath exploring specific constitutional provisions, the Court betrayed its lack of faith in the plenary power’s continuing vitality. The stakes of this doctrinal instability are high; although Brackeen narrowly concerned ICWA, the Court’s waning confidence in the plenary power imperils all of Title 25.

Some scholars have argued that abandoning the doctrine would “effectively erase[]” a myriad of essential programs covering Indian healthcare, housing, education, and more.18 18.See Ablavsky, supra note 2, at 1016 (internal quotation marks omitted); Ishitani & Fay, supra note 4, at 17.Show More But if this is the only reason for adhering to a doctrine that is both contrary to the principle of enumerated powers and unsupported by the Constitution’s text, that reason has weak persuasive force. If the problem is that, without the plenary power, much of Title 25 would fall, the solution is to ground Indian legislation in a textual provision that can legitimately support it.

This Note proposes that the Treaty Clause of Article II, together with the Necessary and Proper Clause of Article I, allows the federal government to fulfill its obligations to Indian nations without resorting to plenary authority. Prior scholarship has largely converged on the Indian Commerce Clause as the proper constitutional home for Title 25;19 19.See, e.g., Stephen Andrews, In Defense of the Indian Commerce Clause, 9 Am. Indian L.J. 182, 204–06 (2021); Ablavsky, supra note 2, at 1029.Show More but, as this Note demonstrates, that provision is insufficient to sustain legislation like ICWA, which lacks any nexus to commerce. While the Court has invoked the Treaty Clause a few times in addressing federal authority over Indian affairs,20 20.Brackeen, 143 S. Ct. at 1628; McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172 n.7 (1973); United States v. Lara, 541 U.S. 193, 200 (2004); Morton v. Mancari, 417 U.S. 535, 552 (1974).Show More and a handful of scholars have briefly gestured at the provision,21 21.See, e.g., Lorianne Updike Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413, 482 (2021) (arguing that, in the absence of a plenary power, the solution is to ratify new treaties with the tribes); Saikrishna Prakash, Against Tribal Fungibility, 89 Corn. L. Rev. 1069, 1095–97 (2004) (arguing that specific treaties might give the government narrow authority vis-à-vis particular tribes).Show More this Note is the first piece of legal scholarship to fully consider its potential and to operationalize it through the Necessary and Proper Clause.

This Note proceeds in three parts. Part I details the origins and scholarly critiques of the plenary power doctrine and traces the Supreme Court’s slow retreat from it. Part II argues that the most popular alternative to the plenary power, the Indian Commerce Clause, is insufficient to sustain portions of Title 25, specifically the provisions lacking any nexus to economic enterprise. Such provisions exist in a state of constitutional limbo. Part III fills that gap, arguing that the Necessary and Proper Clause authorizes Congress to implement the United States’ treaties with Indian tribes, and that Title 25 legislation is “necessary and proper” to honor those commitments. While this Note focuses on ICWA as a uniquely vulnerable statute, its arguments apply with equal force to other provisions in Title 25.22 22.Doing away with the plenary power “would render much of federal Indian law . . . at least preliminarily suspect.” Ishitani & Fay, supra note 4, at 17. Because noneconomic crimes, United States v. Morrison, 529 U.S. 598, 617 (2000), and land use, Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 402 (1979), are traditionally regulated at the local level, Title 25 legislation that operates in these areas, similar to ICWA, cannot be sustained under the Commerce Clause. Nonetheless, this legislation too might be considered “necessary and proper” to implementing various treaties. Compare, e.g., Indian Civil Rights Act § 204, 25 U.S.C. § 1304 (authorizing tribal jurisdiction over domestic violence offenses committed on Indian lands), Indian Reorganization Act, 25 U.S.C. §§ 5101–5129 (taking land into trust for the tribes and managing its use), and 25 U.S.C. §§ 371–380 (regulating the intestacy of Indian lands), with Treaty with the Navajo Indians, Navajo-U.S., art. I, ¶ 2, June 1, 1868, 15 Stat. 667, https://treaties.okstate.edu/treaties/treaty-‌with-the-navaho-1868-1015 [https://perma.cc/2WQY-8EUN] (providing for the punishment of white offenders in Indian country), Treaty with the Cherokees, Cherokee-U.S., arts. VIII–IX, July 2, 1791, 7 Stat. 39, https://treaties.okstate.edu/treaties/treaty-with-the-cherokee-179‌1-0029 [https://perma.cc/Z45F-ZQZ4] (setting apart land for the tribe and providing for assistance in managing it), and Treaty with the Chickasaw, Chickasaw-U.S., art. IV, May 24, 1834, 7 Stat. 450, https://treaties.okstate.edu/treaties/treaty-with-the-chickasaw-183‌4-0418 [https://perma.cc/JX24-KPQS] (providing for the descent of Indian lands to heirs).Show More

  1.  Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting). ↑
  2.  This Note uses “Indian” and “Native American” interchangeably to refer to indigenous peoples, consistent with the norms of Indian law scholarship. See, e.g., Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1014 n.3 (2015). ↑
  3.  118 U.S. 375, 384–85 (1886). ↑
  4.  M. Henry Ishitani & Alexandra Fay, Revising the Indian Plenary Power Doctrine, 29 Mich. J. Race & L. 1, 2 (2024). ↑
  5.  See, e.g., Philip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31, 43 (1996) (observing that the “text of the Constitution lacks much of a hint of any plenary power”). ↑
  6.  See, e.g., Ishitani & Fay, supra note 4, at 2–3. ↑
  7.  See, e.g., Steven Paul McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. Rev. L. & Soc. Change 217, 218–20 (1993). ↑
  8.  Id. at 253. ↑
  9.  See Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 227 (1984) (describing the criminalization of indigenous religions and the removal of Native children to boarding schools). ↑
  10.  See Ishitani & Fay, supra note 4, at 17; Ablavsky, supra note 2, at 1016. ↑
  11.  Haaland v. Brackeen, 143 S. Ct. 1609, 1629–31 (2023). ↑
  12.  Indian Child Welfare Act, 25 U.S.C. §§ 1901–1963. ↑
  13.  Brackeen, 143 S. Ct. at 1630–32. ↑
  14.  Id. at 1630. ↑
  15.  Id. at 1631. ↑
  16.  Id. ↑
  17.  Id. at 1630–31 (upholding ICWA because petitioners failed to discharge their “burden of establishing ICWA’s unconstitutionality”). ↑
  18.  See Ablavsky, supra note 2, at 1016 (internal quotation marks omitted); Ishitani & Fay, supra note 4, at 17. ↑
  19.  See, e.g., Stephen Andrews, In Defense of the Indian Commerce Clause, 9 Am. Indian L.J. 182, 204–06 (2021); Ablavsky, supra note 2, at 1029. ↑
  20.  Brackeen, 143 S. Ct. at 1628; McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172 n.7 (1973); United States v. Lara, 541 U.S. 193, 200 (2004); Morton v. Mancari, 417 U.S. 535, 552 (1974). ↑
  21.  See, e.g., Lorianne Updike Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413, 482 (2021) (arguing that, in the absence of a plenary power, the solution is to ratify new treaties with the tribes); Saikrishna Prakash, Against Tribal Fungibility, 89 Corn. L. Rev. 1069, 1095–97 (2004) (arguing that specific treaties might give the government narrow authority vis-à-vis particular tribes). ↑

  22.  Doing away with the plenary power “would render much of federal Indian law . . . at least preliminarily suspect.” Ishitani & Fay, supra note 4, at 17. Because noneconomic crimes, United States v. Morrison, 529 U.S. 598, 617 (2000), and land use, Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 402 (1979), are traditionally regulated at the local level, Title 25 legislation that operates in these areas, similar to ICWA, cannot be sustained under the Commerce Clause. Nonetheless, this legislation too might be considered “necessary and proper” to implementing various treaties. Compare, e.g., Indian Civil Rights Act § 204, 25 U.S.C. § 1304 (authorizing tribal jurisdiction over domestic violence offenses committed on Indian lands), Indian Reorganization Act, 25 U.S.C. §§ 5101–5129 (taking land into trust for the tribes and managing its use), and 25 U.S.C. §§ 371–380 (regulating the intestacy of Indian lands), with Treaty with the Navajo Indians, Navajo-U.S., art. I, ¶ 2, June 1, 1868, 15 Stat. 667, https://treaties.okstate.edu/treaties/treaty-‌with-the-navaho-1868-1015 [https://perma.cc/2WQY-8EUN] (providing for the punishment of white offenders in Indian country), Treaty with the Cherokees, Cherokee-U.S., arts. VIII–IX, July 2, 1791, 7 Stat. 39, https://treaties.okstate.edu/treaties/treaty-with-the-cherokee-179‌1-0029 [https://perma.cc/Z45F-ZQZ4] (setting apart land for the tribe and providing for assistance in managing it), and Treaty with the Chickasaw, Chickasaw-U.S., art. IV, May 24, 1834, 7 Stat. 450, https://treaties.okstate.edu/treaties/treaty-with-the-chickasaw-183‌4-0418 [https://perma.cc/JX24-KPQS] (providing for the descent of Indian lands to heirs). ↑

Confessions Without Consequence: The Case for Attorney General Deference

­­­The Supreme Court’s recent decisions in Glossip v. Oklahoma and Escobar v. Texas have surfaced an understudied and increasingly consequential phenomenon in American criminal law: the prosecutorial confession of error. Anglo-American courts have recognized such confessions for centuries, and Young v. United States commands that federal courts afford them “great weight.” Yet judicial practice has grown increasingly inconsistent—most acutely at the state level, where courts routinely treat confessions as ordinary litigation positions rather than as the considered judgment of the sovereign’s chief law officers. This dysfunction reaches its apex when the confessor is a state attorney general, whose constitutional authority, democratic legitimacy, and investigative capacity distinguish them from every other prosecutorial actor. Glossip illustrates the problem starkly: the Oklahoma Attorney General confessed error in a capital case after a comprehensive independent investigation, only to have the Oklahoma Court of Criminal Appeals dismiss the confession as “not based in law or fact.”

Pulling from state case law that the literature has largely ignored, this Note argues that the current approach cannot be defended. It proposes a structured four-factor framework—merits, motives, institutional credibility, and equities—designed to restore coherence to confession-of-error doctrine, to vindicate the unique institutional role of state attorneys general, and to ensure that when the State concedes its case cannot stand, the judiciary listens.

Introduction

When Oklahoma Attorney General Gentner Drummond reviewed Richard Glossip’s capital murder case, he formally confessed error.1 1.Glossip v. Oklahoma, 145 S. Ct. 612, 623–27 (2025) (describing the Attorney General’s confession of error, including acknowledgment of prosecutorial misconduct and failure to correct false testimony under Napue v. Illinois, 360 U.S. 264 (1959)).Show More Following an independent investigation commissioned by the state legislature,2 2.See id. at 621 (describing an independent investigation conducted by law firm Reed Smith).Show More Drummond concluded that prosecutorial misconduct had fatally compromised Glossip’s conviction. The Oklahoma Court of Criminal Appeals (“OCCA”) responded with dismissiveness, stating that “[t]he State’s concession is not based in law or fact.”3 3.Glossip v. State, 2023 OK CR 5, ¶ 25, 529 P.3d 218, 226.Show More The OCCA offered little explanation for this rejection and ultimately declined to vacate Glossip’s death sentence.4 4.See id. ¶ 12.Show More This extraordinary rejection of a confession of error reflects a doctrine overlooked, where state court approaches to prosecutorial confessions remain inconsistent and underdeveloped as lives hang in the balance.5 5.Ironically, Oklahoma had adopted a highly deferential regime, granting relief in all 298 cases involving confessions of error between 1908 and 2022, before departing from that century-long practice in this very case, underscoring the doctrine’s current instability. See, e.g., Brief of the National Ass’n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at 2, Glossip v. Oklahoma, 145 S. Ct. 612 (2025) (No. 22-7466) [hereinafter NACDL Brief] (“Indeed, in all 298 cases involving confessions of error between 1908 and 2022, the OCCA ultimately granted relief to the defendant.”).Show More Weeks later, the Texas Court of Criminal Appeals (“TCCA”) followed suit,6 6.Ex parte Escobar, 676 S.W.3d 664, 672–75 (Tex. Crim. App. 2023).Show More rejecting the Travis County District Attorney’s confession in Areli Escobar’s capital case even though the Supreme Court had previously remanded the case “in light of the confession of error.”7 7.Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).Show More Escobar then returned to the Supreme Court, with one question presented squarely addressing the confession-of-error component—namely, whether the Fourteenth Amendment’s Due Process Clause requires reversal when “a capital conviction is so infected with errors that the State no longer seeks to defend it.”8 8.Petition for a Writ of Certiorari at i, Escobar v. Texas, 145 S. Ct. 1423 (2025) (mem.) (No. 23-934).Show More The Supreme Court denied certiorari, leaving the doctrinal issue alive and unwell.9 9.Escobar, 145 S. Ct. at 1423 (denying certiorari).Show More

Glossip and Escobar reveal a deference doctrine unadopted in state courts. At the federal level, Young v. United States asks that courts give “great weight” to confessions of error by federal prosecutors.10 10.Young v. United States, 315 U.S. 257, 258–59 (1942) (“The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.”).Show More But the established analogs in state courts oftentimes prove toothless.11 11.The TCCA exemplifies this judicial resistance. While dutifully reciting that confessions are entitled to “great weight”—if acknowledged at all—the TCCA proceeds to reject them outright, typifying the broader failure to honor deference principles in criminal post-conviction litigation. See, e.g., Ex parte Escobar, 676 S.W.3d at 672, 674–75 (acknowledging that “the State’s confession of error in a criminal case is important and carries great weight” but that “we are not bound by it” and rejecting the Travis County District Attorney’s confession despite the prosecution’s reexamination finding due process violations based on false DNA evidence (quoting Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010))); Rogers v. State, 594 S.W.3d 432, 434–35 (Tex. App. 2019) (conducting independent review before rejecting the State’s confession); infra Part II (examining state court treatments of confessions of error across a variety of states).Show More When state courts continue to imprison defendants despite credible confessions of error by state prosecutors, they undermine notions of fundamental fairness, separation of powers principles, and predictability in the law.12 12.Federal courts apply the doctrine with similar inconsistency, with most circuits showing little deference. See, e.g., United States v. Ramirez, 606 F.3d 396, 398 (7th Cir. 2010) (indicating that the correct standard given the facts and circumstances in the case was plain error); United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996) (stating that the government’s opinion concerning a defendant’s right to a new trial did not bind the court); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir. 1996) (acknowledging that the government’s concession of error and desire to vacate a sentence do not automatically govern an appellate court’s ruling).Show More

State courts compound this dysfunction by overlooking institutional distinctions within the prosecutorial hierarchy. Although prosecutors generally warrant some degree of deference when confessing error, confessions by attorneys general—who are elected officials with statewide constitutional authority to represent the sovereign—should receive heightened deference. This Note argues for such meaningful deference to attorney general confessions, but the Court’s decision in Glossip reflects a more fundamental concern: state courts’ refusal to honor any prosecutorial confession, even when both parties agree that a conviction cannot stand.13 13.Advisory Opinions: A Dispatch Podcast, Blockbuster Cases, The Dispatch, at 45:15 (July 10, 2025), https://thedispatch.com/podcast/advisoryopinions/blockbuster-cases/ [https:/‌/perma.cc/SX7G-GVK3] (featuring Professor Daniel Epps arguing that the case was a “cause célèbre” and that the Court recognized the injustice of the Glossip case and tried to find an equitable outcome).Show More While some state courts do formally acknowledge the attorney general’s position, they do not discuss the attorney general’s uniquely situated legal role and do not provide the meaningful deference this Note argues for.14 14.See, e.g., Marks v. State, 496 P.2d 66, 67–68 (Alaska 1972); People v. Hayes, 699 P.2d 1259, 1263 (Cal. 1985) (acknowledging the Attorney General’s confession of error and, after independent review, concluding that the record “fully supports” the confession, without explaining why the Attorney General’s institutional role warranted consideration); State v. Maes, 665 P.2d 1169, 1171–72 (N.M. Ct. App. 1983) (quoting Marks for the proposition that courts must undertake independent review despite a confession—illustrating cross-jurisdictional adoption of the independent-review standard without engagement with the confessor’s institutional role).Show More This institutional blindness reduces all prosecutorial confessions to mere litigation positions, ignoring the unique democratic, constitutional, and functional virtues that distinguish state attorneys general from sovereign litigators at every other level—local, state, and federal.15 15.See infra Section III.B for a discussion of these virtues.Show More

This Note addresses a critical gap in both scholarship and case law. While existing literature examines the Solicitor General’s confessions before the Supreme Court, practically no scholarship examines the confessions of state attorneys general in state court or state prosecutorial confessions writ large16 16.See Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027, 3029–30 (2013) (examining the Solicitor General’s practice before the Supreme Court); see also Charles L. Maak, Note, The Confession of Error, 1968 Utah L. Rev. 286, 287 (surveying state and federal confession-of-error practices); Alexander L. Merritt, Note, Confession of Error by Administrative Agencies, 67 Wash. & Lee L. Rev. 1197, 1198–99 (2010) (analyzing confession of error in the administrative law context).Show More—despite their increasing relevance across criminal contexts.17 17.See infra Part III (discussing Glossip and Escobaras two major recent cases).Show More The Note undertakes an extensive review of state case law and federal appellate decisions originating in state court. It reveals that state courts consistently deny what this Note terms “meaningful deference” to executive admissions, particularly those from state attorneys general despite their distinctive institutional position.

The Note proposes a structured framework to replace the ad hoc approach currently governing confession doctrine. The absence of principled evaluative standards produces unpredictability and inequality when courts review prosecutorial confessions. A uniform analytical framework—built on four weighted factors—provides a blueprint without dictating outcomes or stripping state courts of institutional autonomy. By offering courts a common set of considerations adaptable to varied state procedures, this framework ensures that deference has substantive meaning across jurisdictions while highlighting why state attorneys general merit unique treatment.

The Note proceeds in four parts. Part I defines confession-of-error doctrine and examines its development. Part II surveys the modern landscape. Part III emphasizes the indeterminate nature of modern judicial approaches. Part IV proposes a manageable framework and applies it to high-profile cases while anticipating objections.

  1.  Glossip v. Oklahoma, 145 S. Ct. 612, 623–27 (2025) (describing the Attorney General’s confession of error, including acknowledgment of prosecutorial misconduct and failure to correct false testimony under Napue v. Illinois, 360 U.S. 264 (1959)). ↑
  2.  See id. at 621 (describing an independent investigation conducted by law firm Reed Smith). ↑
  3.  Glossip v. State, 2023 OK CR 5, ¶ 25, 529 P.3d 218, 226. ↑
  4.  See id. ¶ 12. ↑
  5.  Ironically, Oklahoma had adopted a highly deferential regime, granting relief in all 298 cases involving confessions of error between 1908 and 2022, before departing from that century-long practice in this very case, underscoring the doctrine’s current instability. See, e.g., Brief of the National Ass’n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at 2, Glossip v. Oklahoma, 145 S. Ct. 612 (2025) (No. 22-7466) [hereinafter NACDL Brief] (“Indeed, in all 298 cases involving confessions of error between 1908 and 2022, the OCCA ultimately granted relief to the defendant.”). ↑
  6.  Ex parte Escobar, 676 S.W.3d 664, 672–75 (Tex. Crim. App. 2023). ↑
  7.  Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.). ↑
  8.  Petition for a Writ of Certiorari at i, Escobar v. Texas, 145 S. Ct. 1423 (2025) (mem.) (No. 23-934). ↑
  9.  Escobar, 145 S. Ct. at 1423 (denying certiorari). ↑
  10.  Young v. United States, 315 U.S. 257, 258–59 (1942) (“The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.”). ↑
  11.  The TCCA exemplifies this judicial resistance. While dutifully reciting that confessions are entitled to “great weight”—if acknowledged at all—the TCCA proceeds to reject them outright, typifying the broader failure to honor deference principles in criminal post-conviction litigation. See, e.g., Ex parte Escobar, 676 S.W.3d at 672, 674–75 (acknowledging that “the State’s confession of error in a criminal case is important and carries great weight” but that “we are not bound by it” and rejecting the Travis County District Attorney’s confession despite the prosecution’s reexamination finding due process violations based on false DNA evidence (quoting Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010))); Rogers v. State, 594 S.W.3d 432, 434–35 (Tex. App. 2019) (conducting independent review before rejecting the State’s confession); infra Part II (examining state court treatments of confessions of error across a variety of states). ↑
  12.  Federal courts apply the doctrine with similar inconsistency, with most circuits showing little deference. See, e.g., United States v. Ramirez, 606 F.3d 396, 398 (7th Cir. 2010) (indicating that the correct standard given the facts and circumstances in the case was plain error); United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996) (stating that the government’s opinion concerning a defendant’s right to a new trial did not bind the court); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir. 1996) (acknowledging that the government’s concession of error and desire to vacate a sentence do not automatically govern an appellate court’s ruling). ↑
  13.  Advisory Opinions: A Dispatch Podcast, Blockbuster Cases, The Dispatch, at 45:15 (July 10, 2025), https://thedispatch.com/podcast/advisoryopinions/blockbuster-cases/ [https:/‌/perma.cc/SX7G-GVK3] (featuring Professor Daniel Epps arguing that the case was a “cause célèbre” and that the Court recognized the injustice of the Glossip case and tried to find an equitable outcome). ↑
  14.  See, e.g., Marks v. State, 496 P.2d 66, 67–68 (Alaska 1972); People v. Hayes, 699 P.2d 1259, 1263 (Cal. 1985) (acknowledging the Attorney General’s confession of error and, after independent review, concluding that the record “fully supports” the confession, without explaining why the Attorney General’s institutional role warranted consideration); State v. Maes, 665 P.2d 1169, 1171–72 (N.M. Ct. App. 1983) (quoting Marks for the proposition that courts must undertake independent review despite a confession—illustrating cross-jurisdictional adoption of the independent-review standard without engagement with the confessor’s institutional role). ↑
  15.  See infra Section III.B for a discussion of these virtues. ↑
  16.  See Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027, 3029–30 (2013) (examining the Solicitor General’s practice before the Supreme Court); see also Charles L. Maak, Note, The Confession of Error, 1968 Utah L. Rev. 286, 287 (surveying state and federal confession-of-error practices); Alexander L. Merritt, Note, Confession of Error by Administrative Agencies, 67 Wash. & Lee L. Rev. 1197, 1198–99 (2010) (analyzing confession of error in the administrative law context). ↑
  17.  See infra Part III (discussing Glossip and Escobar as two major recent cases). ↑
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