This Essay addresses a debate that emerged in the Supreme Court's decision last Term in Tennessee v. Lane, 124 S. Ct. 1978 (2004), regarding whether challenges to legislation enacted to enforce section five of the Fourteenth Amendment should be assessed on a facial or as-applied basis. It begins by reviewing the Court's precedent involving claims that statutes exceed Congress' enumerated powers to determine how the Court thus far has approached the question of facial challenges and severability in that context. One of the main points that emerges from this review is the confusion spawned by the Court's current and unduly narrow definition of facial challenges as entailing the claim that a statute (or statutory provision) has no valid applications. This definition obscures both the range of forms facial challenges can take and the important role severability plays in the Court's treatment of facial challenges. The Essay then turns to assessing whether, precedent aside, a doctrine of nonseverability should govern in the section five context, and answers this question in the negative. While section five statutes should not be immune from facial attack, the Essay argues that in assessing the merits of such challenges no reason exists to diverge from the ordinary rule that federal courts will presume unconstitutional applications of federal statutes are severable. It concludes with consideration of whether federalism concerns justify a departure from ordinary practice in other congressional power contexts.
Gillian E. Metzger,
Facial Challenges and Federalism,
Columbia Law Review, Vol. 105, p. 873, 2005; Columbia Public Law Research Paper No. 04-73
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