Some Realism About Constitutional Remedies

Authors

• Thomas P. Schmidt, Columbia Law SchoolFollow
• Gillian E. Metzger, Columbia Law SchoolFollow

Document Type

Article

Publication Date

6-2026

Abstract

The Supreme Court has wavered between two approaches to questions of executive power, which are often labeled institutional formalism and realism. Formalism treats an institution like the presidency as a “black box” to which the Constitution assigns certain powers. In Trump v. Hawaii,  for example, the Supreme Court upheld President Trump’s infamous travel ban by focusing not on the “particular President” and his past call for a “complete shutdown of Muslims entering the United States,” but rather on “the authority of the Presidency itself.” That is the language of institutional formalism.

Realism, on the other hand, peers into the “black box,” taking account of how an institution actually works and who actually populates it before defining its powers. At times, the Roberts Court has shown glimmers of a more realist orientation. In Department of Commerce v. New York, for instance, the Court discredited the Trump Administration’s explanation for why it added a citizenship question to the census by noting that “we are ‘not required to exhibit a naiveté from which ordinary citizens are free.'" That is the language of institutional realism.

Disciplines

Administrative Law | Constitutional Law | Law | President/Executive Department

Recommended Citation

Thomas P. Schmidt & Gillian E. Metzger, Some Realism About Constitutional Remedies, 139 Harv. L. Rev. 1834 (2026).
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/4841