Document Type

Article

Publication Date

2005

Center/Program

Center for Constitutional Governance

Abstract

This Essay addresses the question of whether challenges to legislation as exceeding Congress'powers should be assessed on a facial or an as-applied basis, a question that rose to the fore in the Supreme Court's recent decision in Tennessee v. Lane. The Essay begins by arguing that what distinguishes a facial challenge is that it involves an attack on some general rule embodied in the statute. Such challenges can take a broader or narrower form, and thus the terms 'facial" and "as-applied" are best understood as encompassing a range of possible challenges rather than as mutually exclusive terms. The Court's current definition of facial challenges as targeting all or most of a statute's applications not only exaggerates the difference between facial and as-applied challenges, it also obscures the important roles that severability and substantive constitutional law play in the Courts treatment offacial challenges. The real question raised by Lane is whether in the Section 5 and other federalism contexts the Court should apply its ordinary severability rules. The Essay then turns to examining the Court's precedent and the congruence-and-proportionality test that now governs Section 5 analysis. It argues that notwithstanding the facial cast of much of the Court's recent Section 5 and Commerce Clause precedent, the Court is not deviating from ordinary severability rules in these decisions. The Essay concludes by observing that neither the substantive content of the congruenceand-proportionality test nor instrumental arguments justify imposition of a special nonseverability presumption in Section 5 or in other federalism contexts.

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