Applying Constitutional Decision Rules Versus Invalidating Statutes in Toto

51 Pages Posted: 19 Feb 2012 Last revised: 21 Apr 2012

See all articles by Scott A. Keller

Scott A. Keller

Yetter Coleman LLP

Misha Tseytlin

Gibson, Dunn & Crutcher LLP

Date Written: February 18, 2012


Courts and commentators frequently equivocate when using terms such as “facial challenge,” “as applied challenges,” and “overbreadth.” Much of the confusion arises from 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 after finding a constitutional violation (invalidating the statute in toto, for example). This Article clarifies the precise nature of facial, as-applied, and overbreadth “challenges” by analyzing 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 the overbreadth doctrine under the First Amendment’s Free Speech Clause. The Article explains that overbreadth is merely a different invalidation rule that was created because the Court believed its First Amendment decision rules did not sufficiently enforce the Free Speech Clause. The Court’s rationale for adopting a Free Speech overbreadth invalidation rule, in turn, provides an extremely useful template for determining whether overbreadth should be made available in other contexts such as abortion and Second Amendment cases.

Keywords: facial, as-applied, overbreadth, federal courts, decision rules, Constitution

Suggested Citation

Keller, Scott A. and Tseytlin, Misha, Applying Constitutional Decision Rules Versus Invalidating Statutes in Toto (February 18, 2012). 98 Virginia Law Review 301 (2012). Available at SSRN:

Scott A. Keller (Contact Author)

Yetter Coleman LLP ( email )

221 W 6th St.
Suite 750
Austin, TX 78701
United States

Misha Tseytlin

Gibson, Dunn & Crutcher LLP ( email )

1050 Connecticut Avenue, NW
Washington, DC 20036
United States

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