Facial Challenge - Contrary Position

Contrary Position

Despite the claims of Supreme Court Justices that facial challenges should be rare, empirical studies have been carried out that seem to prove otherwise. A recent article on the subject claims that the Supreme Court resorts to facial challenges to decide upon the validity of statutes more regularly than it claims it does. For instance, the court applied facial challenges to invalidate challenged statutes in Brown v. Board of Education under the Equal Protection Clause, Brandenburg v. Ohio under the First Amendment, and United States v. Lopez under the Commerce Clause. Also, the article asserts that contrary to popular belief, facial challenges are not framed by only a few aberrant constitutional tests. As claimed by the article, facial challenges are constituted by important constitutional tests such as the "rational basis test", which may sometimes indicate that a statute is invalid on its face because it does not posit any rational relation to a legitimate state interest.

A recent example of a facial challenge to a statute includes challenges to the insurance mandate portion of the Patient Protection and Affordable Care Act.