“Facially Unconstitutional” or “Unconstitutional As Applied”

Nowhere in the U.S. Constitution does it mention how laws that are facially unconstitutional or unconstitutional as-applied should be treated. Rather, this distinction is one that has been formed and developed in U.S. Supreme Court (SCOTUS) precedent. The source of the facial/as-applied distinction flows from concerns over strict interpretation of “cases and controversies,” judicial review and separation of powers. Let me explain.

Under Article III of the Constitution, the power of the judiciary only extends to “cases and controversies.” This has been interpreted to basically mean that the federal courts can only decide those cases where there has been a (1) concrete injury which was (2) caused by and traceable to an alleged defendant and the plaintiff’s injury is (3) redressable. Further, primarily by virtue of the Supremacy Clause and SCOTUS’ landmark decision in Marbury v. Madison, the federal courts have the power to strike down and dissolve laws which are repugnant to the Constitution. The trouble arises, then, that when a plaintiff brings a claim against a law that he or she alleges to be unconstitutional, should a Court, upon a finding of unconstitutionality, strike the entire law down or just the provisions that apply to the particular defendant? Does striking down a law contravene the idea of judicial restraint and offend separation of powers?

Because of these concerns, the facial/as-applied distinction has arisen and is rapidly becoming a more important issue. A successful facial constitutional challenge to the law, or provision at issue, will result in a court striking down the law in its entirety; the law, or its challenge part, is unconstitutional per se. It’s tantamount to saying there is no way the law can be constitutional. An as-applied challenge, on the other hand, finds the law or its part unconstitutional as applied to the individual plaintiff, leaving it otherwise intact (almost like judicial surgery).

Given the overriding interest in judicial restraint, and the fact that the judiciary’s power is limited to “cases and controversies,” SCOTUS has announced a preference toward “as-applied” challenges (U.S. v. Salerno). Many critics, though, have said that this is the Roberts’ court cloaking an agenda in “as applied” clothing. The Roberts’ court has announced a preference for “as-applied” challenges, thus making it more difficult for plaintiffs to bring suits and make waves with a single case. Another criticism is that as-applied challenges do not often result in a general, categorical rule of law; rather, they are holdings based almost entirely on context — and thus have a limited value in terms of precedent.Proponents praise the increase in as-applied findings because they believe it tends to reduce the power of the judiciary and place it more in the hands of the legislature.

Certainly, because this issue has complex political and constitutional implications, it is going to come up more and more (at least for those attorneys/individuals who have an interest).




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