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Facial Challenges and Separation of Powers

Indiana Law Journal, Vol. 85, p. 1557, 2010

42 Pages Posted: 8 May 2009 Last revised: 29 Mar 2011

Luke Meier

Baylor University - Law School

Date Written: May 5, 2009


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.

Keywords: facial challenges, constitutional challenges, as-applied challenges, separation of powers, Lane

Suggested Citation

Meier, Luke, Facial Challenges and Separation of Powers (May 5, 2009). Indiana Law Journal, Vol. 85, p. 1557, 2010. Available at SSRN:

Luke Meier (Contact Author)

Baylor University - Law School ( email )

Sheila & Walter Umphrey Law Center
1114 South University Parks Drive
Waco, TX 76706
United States

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