Issue 8

The Practice of Executive Constitutionalism

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

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    art

    . II, § 1,

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

    art

    . VI,

    cl. 3. ↑

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

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

Sovereigns’ Interests and Double Jeopardy

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

Introduction

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

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

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

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

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

Diversity by Facially Neutral Means

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

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

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

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

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

    ↑

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

    Working

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

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

  30.  See supra note 5. ↑

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