facial, roberts, as-applied challenges, severability, constitutional law


Resistance to facial challenges is a recurring theme of the Roberts Court’s early years. Yet close analysis of the Court’s decisions suggests that its approach to facial and as-applied challenges is largely consistent with prior practice. Despite occasional description of as-applied challenges in narrow terms, it has expressly preserved the possibility that as-applied challenges could be brought pre-enforcement and allowed an as-applied challenge to be the vehicle for broad relief. It has also followed the Rehnquist Court in asserting wide remedial discretion to sever statutes to fit constitutional requirements, and even its strategic use of the facial/as-applied distinction is not new. Nor is the Roberts Court’s resistance to facial challenges absolute; it has not only sustained some facial challenges, but done so without offering much explanation as to why an as-applied approach was not more appropriate. What has changed is the Court’s understanding of substantive constitutional law, with the Roberts Court in some instances taking a narrower view of constitutional rights and in other instances offering more robust protection. And it is substantive constitutional law that determines not just the availability of facial challenges, but in addition the extent to which as-applied challenges represent a meaningful mechanism for asserting constitutional rights. Hence, the practical impact of the Court’s facial/as-applied jurisprudence cannot be assessed at a general level, but must instead be approached on a doctrine-by-doctrine basis. The real question in the end is whether the Court is developing specific constitutional doctrines in ways that expand or contract the substantive scope of individual rights.



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