Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2025

Publication Title

Virginia Law Review

Abstract

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 is their history? 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 canvased 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 analogues. But the 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.

Keywords

Executive Branch, Constitutional Interpretation

Publication Citation

Conor Clarke & Daniel Epps, The Practice of Executive Constitutionalism, 111 Va. L. Rev. (forthcoming 2025)

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