January 25, 2009
Franklin on Facial Challenges and the Roberts Court
Professor David Franklin (DePaul Law) recently posted his excellent article Looking Through Both Ends of the Telescope: Facial Challenges and the Roberts Court on ssrn; it is also forthcoming in the Hastings Constitutional Law Quarterly. In it Franklin explores facial (versus as-applied) challenges at the Roberts Court and persuasively argues that facial review isn't nearly so rare as we might expect, given the Roberts Court's renowned aversion to facial challenges. Why? Because facial review is increasingly tied to certain doctrines, and those doctrines are getting to the Court.
Franklin comes to this conclusion by way of what he calls "facial adjudication in as-applied clothing." These are as-applied rulings that furtively--and sometimes not-so-furtively--impact the challenged law across the board, just as a facial challenge would. The best example is from FEC v. Wisconsin Right to Life ("WRTL II") (overturning section 203 of the Bipartisan Campaign Finance Reform Act of 2002 in a facial challenge under the First Amendment); Franklin:
Not only did WRTL's as-applied challenge succeed, but the Court strongly suggested that from now on all challenges brought by organizations engaged in issue advocacy would succeed. . . .
[In concurring in the judgment] Justice Scalia went so far as to accuse his colleagues in the majority--Chief Justice Roberts and Justice Alito--of disingenuousness, noting that "seven Justices of this Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the [WRTL II] opinion effectively overrules McConnell without saying so," and tartly concluding that "[t]his faux judicial restraint is judicial obfuscation."
Justice Scalia was right. WRTL II renders McConnell a practical nullity by laying out a test under which every realistically conceivable as-applied challenge to Section 203 will succeed, while at the same time purporting not to disturb the holding of McConnell, which upheld that provision against a facial attack.
But "facial adjudication in as-applied clothing" doesn't only lead to invalidation; it also leads to validation. The best case here: Raich (upholding the federal Controlled Substances Act against an as-applied Commerce Clause challenge). Franklin:
Raich, in short, facially validated the CSA for Commerce Clause purposes. And given that the plaintiffs' activities in Raich were about as local and noncommercial as one can get and yet they still lost, it is not too far a stretch to conclude that the Court has in effect outlawed as-applied constitutional challenges under the Commerce Clause.
So what's the common theme among these facial-review cases? The doctrine. Particularly:
When the applicable doctrinal tests point the Court toward attributes that operate at the level of the statute--most notably legislative purpose--the resulting adjudication will likely be facial in nature. Thus . . . substantive constitutional doctrine presses equal protection cases toward facial review, but the same can be said of cases in areas as diverse as the Commerce Clause, the Establishment Clause, and the sepration of powers.
This is a quite helpful way of thinking about--and predicting--the Roberts Court's treatment of facial challenges. (A test-case for Franklin's theory is on its way to the Court now: Northwest Austin Municipal Utility District v. Mukasey, testing Congress's authority to reauthorize section 5 of the Voting Rights Act, and upon which I've posted here and here.) And it comes by way of an important insight and addition to the literature: The "facial adjudication in as-applied clothing" that operates both to invalidate and to validate. This is an excellent read; I highly recommend it.
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