Document Type
Article
Publication Date
2026
ISSN
0043-0862
Publisher
Washington University School of Law
Language
en-US
Abstract
This Article contributes to development of the constitutional law of executive conditions. Courts are wrestling with the constitutionality of federal efforts to encourage what the federal government cannot mandate—speech on particular subjects, participation in cooperative federalism programs, and so on—but have failed to appreciate an important distinction. Binding statutory conditions articulated by Congress or an executive branch delegee (statutory conditions) and non-binding executive conditions articulated by executive branch actors engaged in regulation by deal (executive conditions) are different in constitutionally salient ways that can and should inform the development of workable doctrine. Yet courts, advocates, and scholars have only begun to map these differences and to draw the lines that will help to inform doctrinal development.
While textual, historical, and precedential differences between executive and statutory conditions must be assessed doctrine by doctrine, this Article describes five over-arching functional differences between statutory and executive conditions. Executive conditions—including non-enforcement discretion, agenda setting, discretionary acts, and the like—are essential sources of flexibility in the day-to-day implementation of programs, so judicial review of such conditions brings a greater risk of incapacitating the federal government than does judicial review of statutory conditions. This functional difference may counsel more deferential or limited judicial review. On the other hand, executive conditions involve different risks, because they can be tailored or threatened, aggrandize executive power while circumventing congressional control, negate political safeguards of federalism and anti-subordination in the legislative process, come from any executive branch actor, and be compounded across programs or agencies. These functional differences bring greater threats to liberty, state sovereignty, and the separation of powers, increasing the need for judicial intervention. Together, these functional differences indicate that, rather than evaluating executive conditions by reflexively applying (or refusing to apply) precedents developed in review of statutory conditions, courts should develop distinctive constitutional doctrines for executive conditions tailored to check serious abuses without unduly interfering with day-to-day program administration.
Courts can tailor executive conditions doctrines to check abuses without unduly interfering with day-to-day program administration and should clarify rather than complicate doctrinal development by supporting clear, workable lines. The Article illustrates the workability of its intervention with two specific prescriptions. In the First Amendment context, courts have struggled to discern when a condition on speech is a permissible aspect of program definition or is impermissible leveraging of a program to regulate speech more broadly. By scrutinizing executive conditions articulated by novel executive branch actors or compounded across programs, courts can draw better lines and check abuses without interfering with ordinary program administration. And in the Spending Clause context, courts have struggled to identify when pressure turns to compulsion. Here, we suggest executive conditions that pull resources to achieve executive goals in excess of amounts appropriated by Congress require judicial scrutiny to safeguard Congress’s power of the purse, which can be done without incapacitating the ordinary implementation of federal programs.
Recommended Citation
Nicole Huberfeld & Matthew B. Lawrence,
The Missing Constitutional Law of Executive Conditions
,
103
Washington University Law Review
(2026).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4181
