Saturday, June 6, 2009

Constitutional Challenges as Facial or As-Applied: Robson's Saturday Evening Review

The Roberts Court has been less than favorable to facial challenges to statutes' constitutionality, preferring the more limited approach of an as-applied challenge to statutes' constitutionality. On this, both Luke Meier and Caitlin Borgmann agree.  And both consider the Roberts Court approach problematical.  However, they advance different solutions.

LukeMeier Luke Meier, in Facial Challenges and Separation of Powers, available on ssrn, forthcoming in Indiana Law Review, argues that "federal courts are constitutionally compelled to consider the constitutionality of a statute on its face when the power of Congress to pass the law has been challenged."  Relying primarily upon INS v. Chadha and Clinton v. New York, Meier contends the confused doctrine regarding facial vs. as-applied challenges should be inapposite whenever the challenge concerns power rather than infringements of rights.  As Meier notes, "the Supreme Court’s analysis in Chadha and Clinton were relied on by the American Bar Association’s Task Force on Presidential Signing Statements in condemning the practice of Presidential signing statements," in response to an increase of signing statements under President George W. Bush.  Meier extends this reasoning to judicial decisions:

the principles of Chadha and Clinton, standing alone, condemn the Court’s practice of invalidating particular applications of a statute as beyond Congress’s power. The essence of the Chadha and Clinton holdings is that the Constitution provides a very specific framework for the process of making laws which will govern the constituents’ conduct. This process involves various different political checks to ensure that various political viewpoints are represented. As a result of these various viewpoints being expressed, most legislation is the compromise of various competing interests. As the Court clearly stated in Clinton when considering the line-item veto, allowing the executive branch, pursuant to a line-item veto, to alter the product of this delicate balancing warps the “finely wrought” process delineated in the Constitution. A new law, the provisions of the statute which the President will enforce, is substituted for the old law, which was the statute as voted on by both Houses of Congress and signed by the President. There is no reason this principle should not apply with equal force to judicial activity under Article III as it does executive activity under Article II in executing the laws. When the Court, in a case such as [Tennesse v. ] Lane, [carves out a specific application of the Title II “reasonable accommodations” requirement, and presumably strikes down other applications of the law, it creates a new law, which was not passed by both Houses of Congress and was not signed by the President.

Id. at 28.  It is a compelling argument and certainly worth consideration.  However, as Meier admits, it addresses only a portion of the facial vs. as-applied problem.

Borgmann Caitlin Borgmann, in Holding Legislatures Constitutionally Accountable Through Facial Challenges, available on ssrn, and forthcoming in Hastings Constitutional Law Quarterly, argues that the "traditional view of statutes as embodying constitutional and unconstitutional applications is unhelpful and misleading when such statutes deliberately or recklessly infringe individual rights."  Borgmann contends that the "The legislative process is an adversarial one that is not conducive to neutral fact-finding, especially when controversial or minority rights are at issue."  She concludes that

Laws that infringe individual rights out of open defiance of clear constitutional precedents, or because of inattention to the facts, are fundamentally flawed and thus prime candidates for total invalidation. Only the threat of complete invalidation in appropriate cases will motivate Congress and state legislatures to make good on their obligation to uphold the U.S. Constitution. And the Court will not make good on its own obligation to protect individual rights unless it once again embraces facial challenges.

Id. at 48.  Clearly, her argument applies not only to federal statutes, but to state statutes as well.  She also advocates a sort of sliding scale based implicitly (it seems to me) on equal protection principles:

The constitutional norms that call for decisive judicial action in the face of laws that unconstitutionally infringe important individual rights may warrant a different approach in the context of laws that are rights-protective. When the majority acts altruistically, that is, against its own interests or in order to protect rights, the courts‘ duty to protect individuals from majoritarian power is at its low ebb. The legislature is by definition not motivated by bias or hostility toward such rights, and there is little danger that a pretextual purpose will be offered to disguise animosity or prejudice toward an unpopular group. This may be true, for example, when Congress attempts to protect vulnerable or powerless individuals from state oppression.

Id. at 47.

Neither Borgmann nor Meier are the first to note issues with the Roberts Court's tendency to prefer the narrower as-applied challenge, and both engage with the substantial scholarship on the problem.  Offering different, but certainly compatible solutions, their articles are worth reading not only by scholars and students, but also by attorneys challenging a statute's constitutionality.


Fourteenth Amendment, Fundamental Rights, Interpretation, Scholarship, Separation of Powers, Theory | Permalink

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