Document Type

Article

Publication Date

10-2026

Abstract

Upon finding that a statute creates an unconstitutional inequality, courts face an intriguing remedial question: how to enjoin executive officials henceforth to implement the statute in a nondiscriminatory manner. There are almost always two options: “leveling up” to extend a statutory benefit or burden to the initially excluded group, and “leveling down” to withdraw the benefit or burden from the initially included group.

For decades, the Supreme Court has approached this remedial enterprise as if no substantive constitutional values guide the choice between leveling up and leveling down; so long as the remedy establishes prospectively equal treatment at any level, constitutional input is considered fully exhausted. Given this assumption, courts have long embraced a remedial model—one I will call legislature-channeling—according to which courts implement whichever injunctive remedy they believe would reflect the enacting legislature’s preference had it known that its actual statutory design was invalid. The model’s goal is to forestall judicial policymaking by insisting that courts act as short-term legislative surrogates. A Court plurality recently acknowledged that this model raises both theoretical and practical concerns, among them that “courts are not well equipped to imaginatively reconstruct a prior Congress’s hypothetical intent.” Barr v. American Ass’n of Political Consultants, Inc., 591 U.S. 610, 625 (2020). But the plurality’s proposed fix—to shift the judicial inquiry from legislative preference to statutory meaning by deploying severability principles—runs into similar conceptual and pragmatic quagmires.

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© 2026 Illinois Law Review. Reproduced with permission.

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