April 2012, Volume 98, Issue 2
Applying Constitutional Decision Rules Versus Invalidating Statutes In Toto: An Alternative To Rosenkranz’s Approach To Facial, As-Applied, And Overbreadth Adjudication
by Scott A. Keller & Misha Tseytlin
98 Va. L. Rev. 301 (2012)
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Nicholas Rosenkranz has recently proposed a model of judicial review for dealing with facial and as-applied challenges. This model argues that “facial” challenges necessarily apply to suits against legislative actions and, where successful, lead to total invalidation of the statutory provision at issue; whereas “as-applied” challenges are as-executed challenges to executive conduct and can only lead to vindication of the litigant’s rights in the case at issue. This Article explains that there is a fundamental flaw in Rosenkranz’s approach—a flaw often repeated by other scholars and that has caused serious confusion among judges: the failure to differentiate between the object of a court’s constitutional inquiry (the text of the challenged law, for example), and the remedy a court will order when it finds that the object is constitutionally infirm (invalidating the statute in toto, for example). In addressing this flaw, this Article analyzes the complex relationship between constitutional decision rules and invalidation rules. Understanding this relationship provides answers to questions that have long puzzled courts and commentators, including why there are both as-applied and facial commerce clause challenges and the significance of these doctrines to the pending litigation regarding the Affordable Care Act’s individual mandate.
The Article also uses the relationship between decision rules and invalidation rules to provide a novel explanation for the Court’s adoption of overbreadth doctrine under the First Amendment’s Free Speech Clause. The Article explains that overbreadth is merely a different invalidation rule that became necessary because the Court’s First Amendment decision rules proved insufficient. Understanding that insufficiency of decision rules is what drove the Court to adopt overbreadth provides an extremely useful template for determining whether overbreadth should be made available in controversial and high-stakes areas of law such as abortion and the Second Amendment.
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