Fact and Fiction about Facial Challenges

Fact and Fiction about Facial Challenges

The Justices of the U.S. Supreme Court have frequently insisted that “facial challenges” to the validity of statutes are and ought to be rare. Based partly on an empirical survey of all cases decided by the Court during six selected Terms, this Article reveals that assumption to be empirically false and normatively mistaken. Error on this point reflects broader confusions and misunderstandings. For example, it is not true that only a few especially stringent constitutional tests frame facial challenges. Even the rational basis test sometimes yields the conclusion that statutes are invalid in toto. The conventional wisdom also errs in positing that the Supreme Court can cure a statute’s facial defects merely by invoking a general “presumption of severability” under which, in a future case, any of a statute’s invalid applications can be separated from valid ones.

Besides revising the conventional wisdom about facial challenges, this Article locates the root of misunderstanding in the rhetoric of a relatively small number of much-cited cases. It also begins the reconstructive task of explaining when facial challenges do and do not succeed. That explanation has three parts. First, there is a crucial linkage between rulings of facial invalidity and the breadth of the reasons that the Supreme Court gives in upholding constitutional challenges. Second, the Court is often inattentive to severability issues, and its practice must be understood accordingly. Although this Article advances important rationalizing generalizations, it explains why the Court’s approach to severability cannot be captured in rigid rules. Third, many Supreme Court decisions rejecting facial challenges are best understood as finding facial challenges to be unripe, rather than categorically unavailable.



More in this Issue

The Power of Procedure: The Critical Role of Minority Intervention in the Wake of Ricci v. DeStefano

Federal Rule of Civil Procedure (“FRCP”) 24(a)(2) permits third parties whose interests are not adequately represented by existing parties to intervene in ongoing litigation to protect those interests. This Comment considers whether intervention can and should be used as a tool for nonparty racial minorities in the fight for social justice. Ultimately, it posits that […]

Federalism and the Taxing Power

Scholars and courts recognize that the federal government uses its broad spending power to enlist states in achieving federal goals, thereby expanding the federal government’s reach beyond the areas enumerated for it in the Constitution. Previously underappreciated, however, is that the federal government can achieve similar ends-it can regulate the states and private parties-through its […]