Facial Challenges to State and Federal Stautes
71 Pages Posted: 7 Feb 2013
Date Written: January 1, 1994
Courts can hold a statute unconstitutional either on its face or as-applied, and the standards courts use significantly affect the likelihood of a successful constitutional challenge. In this article, Professor Dorf analyzes the Supreme Court's facial challenge doctrine, which purports to restrict facial challenges to those cases in which a statute can be constitutionally applied in "no set of circumstances." Professor Dorf argues first that all persons have a right to be judged by a valid rule of law, and that the Court's current facial challenge doctrine can only be squared with this right if the Court is employing a presumption of severability-that unconstitutional aspects of a statute can be severed from constitutional ones by a process of judicial interpretation. Professor Dorf then discusses the limits imposed on this presumption of severability by both substantive constitutional law and institutional concerns. In analyzing the former, he argues that the First Amendment overbreadth doctrine, which the Court has recognized limits the applicability of the "no set of circumstances" test, should be and in fact has been applied outside the First Amendment context in a manner inconsistent with the facial challenge rule. He also argues that the facial challenge rule is inconsistent with principles of federalism, as it prevents federal courts from giving proper deference to state courts on issues of state law. Professor Dorf concludes that the Court's "no set of circumstances" test does not accurately reflect the Court's facial challenge doctrine, and recommends that the Court eschew categorizing constitutional challenges as either facial or as-applied, focusing instead on the underlying substantive and institutional issues.
Keywords: facial challenges, constitution, first amendment, facial challenges rule
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