Author ORCID Identifier

Nicole Huberfeld 0000-0001-9206-2257

Matthew Lawrence 0000-0003-4748-501X 

Document Type

Article

Publication Date

2026

Keywords

Statutory conditions, Executive conditions, Spending conditions, Constitutional law, Trump Administration, Congress

Abstract

This Article contributes to the development of the constitutional law of executive conditions. The appropriations presidentialism of the second Trump Administration—the shift from bilateral executive/legislative cooperation and compromise in federal spending to executive unilateralism in defiance of congressional control—has forced courts into the administration of federal spending like never before. As a result, judges have been forced to confront legal questions that remained mostly dormant during the era of executive/legislative cooperation, including questions about the constitutionality of efforts to encourage through spending conditions what the federal government cannot mandate (or has not mandated) directly, like speech or silence on particular subjects. Early decisions resolving these questions have failed to appreciate an important distinction. Statutory conditions articulated by Congress or an executive actor formally exercising delegated legislative authority (statutory conditions) and executive conditions articulated by executive branch actors exercising non-enforcement, agenda-setting, or other executive powers (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.

Work is needed to develop differences between statutory and executive conditions from the various perspectives courts consider in resolving constitutional questions—text, history, tradition, and function. After distinguishing statutory and executive conditions, the Article focuses on functional differences. It develops differences between statutory and executive conditions from the standpoint of the constitutional values that courts consider in resolving hard interpretive and precedential questions. Separation of powers, federalism, and anti-subordination values all favor closer constitutional scrutiny of executive conditions than courts usually apply to statutory conditions. At the same time, operational considerations create a reason for courts to hesitate to scrutinize executive conditions that may not be present with regard to statutory conditions—namely, that review of executive conditions could interfere with day-to-day program administration and so diminish federal capacity.

Together, the functional differences between statutory and executive conditions 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 target and address abuses without unduly interfering with day-to-day program administration. Doing so not only would lead to better outcomes from the standpoint of constitutional values but would also facilitate doctrinal development by supporting clear, workable lines in an area in which such lines are notoriously hard to draw. The Article illustrates with two specific prescriptions. In the First Amendment context, courts have struggled to discern when a spending condition that requires (or forbids) expression is a permissible aspect of program definition or is impermissible leveraging of a program to regulate speech more broadly. By giving closer scrutiny to executive conditions articulated by novel executive branch actors or compounded by the executive branch across distinct statutory 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 or purposes delineated by Congress require more searching judicial scrutiny to safeguard Congress’s power of the purse.

First Page

1767

Publication Title

Washington University Law Review

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