Section five overbreadth: the facial approach to adjudicating challenges under section five of the Fourteenth Amendment.

• Author: Carroll, Catherine
• Position: Case Note

TABLE OF CONTENTS INTRODUCTION I. SECTION FIVE OVERBREADTH EXPOSED A. Adoption of the Overbreadth Approach in the City of Boerne Cases B. Section Five Overbreadth as a Departure from Precedent II. PATHOLOGIES OF SECTION FIVE OVERBREADTH A. The Proper Scope o f Judicial Review B. Severability C. Internal Inconsistencies in the City of Boerne Cases D. The Federalism Defense of Section Five Overbreadth III. THE FUTURE OF SECTION FIVE: FACIAL INVALIDATION OF TITLE VII? CONCLUSION INTRODUCTION

In February 1996, the New York State Department of Transportation fired Joseph Kilcullen from his position as a snowplow driver in the Department's Highway Maintenance training program. (1) Alleging that the state discharged him because of his epilepsy and learning disability, (2) Kilcullen sued his former employer under the Americans with Disabilities Act ("ADA"), (3) which abrogated states' sovereign immunity and permitted private suits for damages against states in federal court. (4) Kilcullen asserted only that he was not treated the same as similarly situated non-disabled employees; his claim did not implicate the ADA's requirement that employers provide "reasonable accommodation" to disabled employees. (5) Nevertheless, the federal district court for the Northern District of New York concluded that to determine the validity of the ADA's abrogation of state sovereign immunity in Kilcullen's case, it had to consider whether the ADA as a whole--including the reasonable accommodation provisions--was a valid exercise of Congress's power under section 5 of the Fourteenth Amendment. (6)

By discussing the propriety of a facial analysis of the ADA's abrogation of sovereign immunity, the district court in Kilcullen v. New York State Department of Transportation (7) addressed an important procedural issue that the Supreme Court has failed to acknowledge in any of its section 5 cases since City of Boerne v. Flores. (8) The Court's silence on this point does not indicate inaction; in its recent cases, the Court has tacitly applied a new approach to adjudicating challenges to legislation enacted pursuant to Congress's power under section 5 of the Fourteenth Amendment. This new approach not only permits facial challenges where previously they have been disfavored, but also assesses those challenges under a test that replaces the traditional standard with a version of overbreadth analysis typically reserved to the First Amendment context. (9)

Traditionally, constitutional adjudication in the federal courts proceeds through "as-applied" challenges, in which litigants challenge a statute as it applies to their own conduct in their particular cases. (10) In general, "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." (11) The primacy of as-applied challenges reflects the principle that the judicial power to invalidate legislative acts is properly exercised only in concrete cases and controversies. (12)

Occasionally, "weighty countervailing policies" have persuaded the Court to entertain "facial" challenges, in which a party raises constitutional objections to the terms of the statute itself--without regard to the precise circumstances of his particular case--even if the statute validly would apply to the particular party in the absence of the challenged provisions. (13) The prototypical example is a First Amendment overbreadth challenge, in which a party to whom a statute constitutionally applies may nevertheless challenge the statute on the ground that in other circumstances it may reach a substantial amount of protected First Amendment expression. (14) Outside the First Amendment context, however, the Court has generally disfavored facial challenges, (15) holding that such challenges may succeed only when "no set of circumstances exists under which the [a]ct would be valid." (16)

In City of Boerne v. Flores, (17) the Supreme Court adopted a new test for the validity of federal legislation enacted under Congress's power to enforce the Fourteenth Amendment. (18) Recognizing that Congress's enforcement power is limited to remedying or preventing violations of the Fourteenth Amendment, the Court has required that legislation enacted pursuant to section 5 of the Fourteenth Amendment exhibit a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." (19)

Apart from this heightened scrutiny of ends and means, the Court's recent section 5 cases have entailed another important innovation. The Court in these cases has departed from the traditional "as-applied" method of adjudication in favor of a facial overbreadth approach. Instead of considering legislation in light of the particular facts and claims of a given case, the Court has examined the challenged statutes on their faces. Instead of asking whether any set of circumstances exists in which the challenged statutes might appropriately enforce the Fourteenth Amendment against unconstitutional state action, the Court has asked whether many of the state acts affected by these statutes have a significant likelihood of being unconstitutional. Moreover, the Court has adopted this approach without any discussion of its merits or drawbacks. (20) The issue has also largely escaped academic discussion. (21)

Despite the Court's failure to acknowledge or defend this new approach, the choice between facial overbreadth and as-applied analysis--like any procedural decision (22)--promises to be of great importance in future section 5 cases. In particular, the success of any challenge to the validity of the abrogation of immunity in Title VII of the Civil Rights Act of 1964 may likely depend on the method of adjudication. (23) To constitute a valid exercise of Congress's power under section 5, the abrogation of immunity in Title VII must provide a congruent and proportional remedy to state violations of the Equal Protection Clause. (24) Title VII's prohibition of intentional racial discrimination by state employers closely mirrors that clause. (25) The abrogation of sovereign immunity for intentional discrimination--in isolation from other provisions of the Act--certainly passes the standards of City of Boerne and its progeny. (26) Under the new section 5 overbreadth approach, however, any state defendant in a Title VII suit could argue that the validity of this abrogation depends on the validity of Title VII's disparate impact provisions, (27) even in suits alleging only intentional discrimination. As the Fourteenth Amendment itself does not prohibit state action that produces an unintentional discriminatory effect, these provisions are much less likely to satisfy the Court's test for appropriate section 5 legislation. (28) Thus, if the Court chooses to entertain a facial challenge to Title VII's abrogation, the Act's abrogation of immunity in suits alleging intentional discrimination may be struck down, even though on its own it easily qualifies as an appropriate means of enforcing the Fourteenth Amendment.

This Note argues that the Court's recent section 5 cases depart from the traditional method of constitutional adjudication. Part I argues that the Court's decisions since City of Boerne have introduced a form of overbreadth doctrine into the analysis of section 5 legislation akin to the approach used in the First Amendment context. In particular, the Court has both entertained facial challenges where the traditional rules would not permit them and applied a new standard for evaluating those challenges. Part II challenges the wisdom of this approach, arguing that the new approach is inconsistent with settled principles of judicial review and severability and raises some puzzling internal inconsistencies within the section 5 doctrine. Federalism concerns do not appear to outweigh these difficulties. Part III argues that this new approach has significant ramifications for the substantive outcomes of future civil rights cases, as demonstrated in the context of Title VII. The Note concludes that in light of the many troubling aspects of this method of adjudication, and given the dispositive effect the methodological choice can exert on substantive outcomes, the Court should consider the appropriateness of this approach more explicitly before permitting it to continue.

1. SECTION FIVE OVERBREADTH EXPOSED

   Since 1997, the Court has decided six cases dealing with Congress's power to enact legislation under section 5 of the Fourteenth Amendment. (29) Although none of those cases involved claims under the First Amendment, and although the Court has purported to disfavor facial challenges outside that context, the Court has disposed of each of the cases using a facial analysis. Section I.A argues that the Court has replaced the standard of United States v. Salerno, (30) the general standard governing facial challenges, with an approach that is more akin to the standard of Broadrick v. Oklahama, (31) which governs First Amendment overbreadth claims. Section I.B. contends that this section 5 overbreadth approach departs from both the traditional rules of constitutional adjudication and the analysis applied in previous section 5 cases.

   1. Adoption of the Overbreadth Approach in the City of Boerne Cases

      Under the Supreme Court's First Amendment jurisprudence, a litigant may challenge a statute on its face if it burdens a substantial amount of protected expression. (32) In this context, a facial challenge proceeds by comparing the challenged statute as a whole against the relevant constitutional standard. (33) Success of such a challenge does not depend on the validity of the particular application before the court, nor does the scope of the analysis depend on the circumstances of the litigant's particular case. (34) Instead, the appropriateness of...