Facial Challenges and Separation of Powers

Luke Meier, Drake University

Abstract

In several Supreme Court decisions this decade, the question of whether a constitutional attack on a statute should be considered “as applied” to the actual facts of the case before the Court or “on the face” of the statute has been a difficult preliminary issue for the Court. The issue has prompted abundant academic discussion. Recently, scholars have noted a preference within the Roberts Court for as-applied constitutional challenges. However, the cases cited as evidence for the Roberts Court’s preference for as-applied challenges all involve constitutional challenges which concede the legislative power to enact the provision but nevertheless argue for unconstitutionality because the statute intrudes upon rights or liberties protected by the Constitution. Of course, this is not the only type of constitutional challenge to a statute; some constitutional challenges attack the underlying power of the legislative branch to pass the statute in question. Modern scholarship, however, as well as the Supreme Court, has mostly ignored the difference between these two different types of constitutional challenges to statutes when discussing facial and as-applied constitutional challenges. In glossing over this difference, considerations which fundamentally affect whether a facial or as-applied challenge is appropriate have gone unnoticed. By clearly distinguishing between these two very different types of constitutional challenges, and the respective role of a federal court in adjudicating each of these challenges, a new perspective can be gained on the exceedingly difficult question of when a facial or as-applied challenge to a statute is appropriate.

In this Article, I argue that federal courts are constitutionally compelled to consider the constitutionality of a statute on its face when the power of Congress to pass the law has been challenged. Under the separation of powers principles enunciated in I.N.S. v. Chadha and Clinton v. New York, federal courts are not free to ignore the “finely wrought” procedures described in the Constitution for the creation of federal law by “picking and choosing” constitutional applications from unconstitutional applications of the federal statute, at least when the statute has been challenged as exceeding Congress’s enumerated powers in the Constitution. The separation of powers principles of I.N.S. and Clinton, which preclude a “legislative veto” or an executive “line item veto,” should similarly preclude a “judicial application veto” of a law that has been challenged as exceeding Congress’s Constitutional authority.

The organization of this Article is as follows: In Part I of the Article, I will show that the Supreme Court’s use of facial and as-applied adjudications of statutes cannot be synthesized or understood using traditional doctrinal explanations. In addition, I will demonstrate that this threshold question can be determinative as to the constitutionality of a statute, thus making it important to formulate a doctrine which can guide courts in resolving the “facial-verses-as-applied” question. In Part II of this Article, I will examine the attempts of contemporary scholars to supply a doctrine to descriptively account for the Court’s cases. I conclude that the modern, conventional wisdom fails as a descriptive account because of a misunderstanding about the relationship between the facial-verses-as-applied question and the question of severability. The conventional wisdom wrongfully assumes that the facial-verses-as-applied question is answered by looking at the doctrine of severability, when in fact the question of severability becomes relevant only after the facial-verses-as-applied question has been answered. Moreover, the conventional wisdom fails to account for the Overbreadth Doctrine, a doctrine allowing for facial adjudication of a statute without reliance on the doctrine of severability. What is needed, then, is a normative doctrine to facilitate reasoned adjudication in the future. In Part III, I attempt to provide a start towards a cohesive, normative doctrine in this area of the law by arguing that federal courts are constitutionally compelled to consider challenges to Congress’s power to pass a statute as a facial challenge rather than an as-applied challenge.