Facial Challenges, Legislative Purpose, and the Commerce Clause

Author:David L. Franklin
Position:Assistant Professor, DePaul University College of Law

Over the past decade or so, the Supreme Court has issued an extraordinary and highly controversial series of decisions concerning the scope of Congress's power. Yet beneath the surface of the debate over the federalism cases lies a parallel dispute that has received far less scholarly notice. This dispute concerns the proper mode of judicial review in cases testing the scope of congressional... (see full summary)


    Assistant Professor, DePaul University College of Law. For very helpful comments and suggestions, I thank Michael Dorf, Brad Joondeph, Trevor Morrison, Richard Primus, John Roberts, Kim Roosevelt, Stephen Siegel, Kevin Stack, Stewart Sterk, Mark Weber, and the participants in the Chicago Junior Faculty Workshop. Peter Horst provided nonpareil research assistance. Errors are mine.

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In June 2005, in Gonzales v. Raich,1 the Supreme Court upheld the constitutionality of the federal Controlled Substances Act ("CSA"). In so doing, the Court reversed the Ninth Circuit, which had held that the CSA -as applied to medicinal users of marijuana within California who either cultivated their own cannabis or obtained it for free from within the state- exceeded Congress's authority under the Interstate Commerce Clause.2 Not surprisingly, Raich has attracted a great deal of attention for its holding on the merits, which appears to mark a retrenchment in the Court's federalism jurisprudence.3 But the decision is also noteworthy for the light it sheds on a different facet of constitutional law: the debate over whether statutes ought to be challenged as unconstitutional on their face or merely as applied to particular facts. The reasoning and result of Raich strongly suggest that "as-applied" challenges under the Commerce Clause will not receive a friendly reception at the Court, and that "facial" challenges are now the norm. Indeed, Raich has already been described as putting an end to the short-lived flowering of as-applied Commerce Clause challenges in the lower courts.4

This gives rise to a puzzle. The Court has long held that as-applied constitutional challenges should be strongly preferred to facial ones.5 Indeed, the Court recently reaffirmed its general preference for as-applied challenges even in litigation concerning Section 5 of the Fourteenth Amendment6 and abortion rights,7 where earlier decisions had seemed to embrace one form or another of facial review.8 Given all this, why does thePage 44 Court favor facial challenges in Commerce Clause cases? This Article offers a solution to the puzzle.

That solution proceeds in four stages. Part I frames the issue by describing the Court's recent federalism decisions, revealing that beneath the surface of the contentious debate over the substance of judicial doctrine lies an equally thorny set of questions involving the appropriateness of facial challenges in cases testing the scope of Congress's power. These questions are particularly difficult in the context of the Commerce Clause because the Supreme Court's recent decisions on that subject have suggested a strong preference for facial challenges, in sharp contrast to the Court's traditional inclination toward as-applied review.

Part II lays the theoretical groundwork for answering those questions by explaining the distinction between facial and as-applied challenges, as well as the crucial but underappreciated distinction between two types of facial challenge: the overbreadth facial challenge and the valid-rule facial challenge.9 Briefly put, an overbreadth facial challenge argues that a statute is unconstitutional on its face because it sweeps within its coverage an unacceptably large proportion of constitutionally unregulable activities. By contrast, a valid-rule facial challenge argues that a statute is invalid on its face because of a constitutional infirmity that inheres in the statute as written, regardless of the facts or circumstances surrounding particular applications.10 This Part argues that scholars have erred by analyzing all facial challenges as if they were of the overbreadth as opposed to the valid-rule variety. That misimpression, Part II explains, has led to two further errors: an overemphasis on statutory severability as the key factor in determining whether facial review is appropriate and an assumption that facial review is called for if, and only if, the constitutional claimant expresslyPage 45 frames her challenge in facial terms.11 Rather, the appropriateness of facial challenges-particularly valid-rule facial challenges-is a function of the interaction between the challenged statute and the applicable substantive constitutional doctrine.

Building on this groundwork, Part III examines and rejects several plausible rationales for the Court's use of facial review in Commerce Clause cases. First, this Part canvasses the Court's case law concerning the proper mode of judicial review in Commerce Clause cases and concludes that no consistent pattern emerges from the precedential record. Facial review, though discernable in earlier eras, has become predominant in the Court's jurisprudence only since Lopez. Next, Part III explores three rationales that could plausibly explain the Court's turn to the facial perspective in Commerce Clause cases. It examines, in turn, a formalist conception that characterizes rights as zones of privileged conduct while envisioning government power as extending to the limits of its internally defined scope; an understanding of the interstate commerce power as plenary or judicially unconstrained; and a conception of the Commerce Clause as including a prohibition on overbreadth. It concludes, however, that these rationales do not adequately account for the Court's resort to facial review.

Finally, Part IV argues that the soundest explanation for the Court's turn to facial review in Commerce Clause cases lies in an understanding of the Clause's meaning that incorporates a requirement of appropriate legislative purpose. This argument may seem counterintuitive, given that the Supreme Court's constitutional decisions-indeed, its Commerce Clause decisions in particular-have generally disavowed any inquiry into legislative motivation. This obstacle drops away, however, once we grasp two crucial distinctions: first, between subjective legislative motive and objective legislative purpose, and second, between judicial doctrine and constitutional meaning. Objective legislative purpose and constitutional meaning are the relevant concepts here. Briefly put, the Court (or, to be more precise, a controlling bloc of Justices) has been driven toward facial review by an understanding of constitutional meaning that requires Commerce Clause legislation to have a commercial purpose. Part IV concludes by laying out, and then responding to, descriptive, normative, and theoretical objectionsPage 46 to this contention that a purpose-based conception of the commerce power has motivated the Court's embrace of facial review.

I Framing the Issue: Unanswered Questions

Over the past decade or so, the Supreme Court has issued an extraordinary series of decisions concerning the scope of Congress's power. In the wake of the Court's 1995 ruling constraining the scope of the Interstate Commerce Clause in United States v. Lopez12-and particularly after its even more ambitious holding in United States v. Morrison13-it appeared to many that the Rehnquist Court had sparked a "federalism revolution."14 Additional cases restricting Congress's power to regulate state government officials,15 Congress's power to abrogate state sovereign immunity,16 and Congress's power to legislate pursuant to its Fourteenth Amendment enforcement power17 all gave added ammunition to the charge that the Court was revolutionizing the constitutional law of federalism.

More recently, however, the picture has become blurred, as the Court has handed down several decisions curtailing, or at least failing to follow through on, its most adventurous federalism projects.18 The result has at times seemed closer to confusion than revolution; discerning a pattern behind the Court's decisions on the scope of federal power is a difficult task. Indeed, it would not be absurd to surmise that some federalism-minded members of the Court -including the recently retired Justice O'Connor- simply said "thus far and no further," without supplying a compelling theoryPage 47 to explain their chosen stopping point.19 As of this writing, it is far too early to tell whether the replacements of the late Chief Justice Rehnquist by John Roberts and Justice O'Connor by Samuel Alito will lend a new spark to the movement to restrict federal power.

All of this-the seeming "federalism revolution" and its apparent petering-out of late-has been the subject of sustained scholarly attention.20 Yet alongside the primary confusion of the federalism holdings, a secondary confusion has persisted without receiving nearly as much scholarly notice. This secondary confusion concerns the proper mode of judicial review in cases testing the scope of congressional power. In particular, the Justices of the Supreme Court-and increasingly after Lopez, judges on the lower federal courts-appear to be uncertain about whether challenges to the scope of Congress's power ought to be reviewed on a facial or an as-applied basis.

The confusion is at its greatest in the Commerce Clause area.21 The Court decided the groundbreaking Lopez case from a facial perspective: Chief Justice Rehnquist's majority opinion...

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