Fact and Fiction About Facial Challenges

Abstract

The Justices of the U.S. Supreme Court have frequently insisted that “facial challenges” to the validity of statutes are and ought to be rare. Based partly on an empirical survey of all cases decided by the Court during six selected Terms, this Article reveals that assumption to be empirically false and normatively mistaken. Error on this point reflects broader confusions and misunderstandings. For example, it is not true that only a few especially stringent constitutional tests frame facial challenges. Even the rational basis test sometimes yields the conclusion that statutes are invalid in toto. The conventional wisdom also errs in positing that the Supreme Court can cure a statute’s facial defects merely by invoking a general “presumption of severability” under which, in a future case, any of a statute’s invalid applications can be separated from valid ones. Besides revising the conventional wisdom about facial challenges, this Article locates the root of misunderstanding in the rhetoric of a relatively small number of much-cited cases. It also begins the reconstructive task of explaining when facial challenges do and do not succeed. That explanation has three parts. First, there is a crucial linkage between rulings of facial invalidity and the breadth of the reasons that the Supreme Court gives in upholding constitutional challenges. Second, the Court is often inattentive to severability issues, and its practice must be understood accordingly. Although this Article advances important rationalizing generalizations, it explains why the Court’s approach to severability cannot be captured in rigid rules. Third, many Supreme Court decisions rejecting facial challenges are best understood as finding facial challenges to be unripe, rather than categorically unavailable.