Kara Sears
Judicial review is a process that allows a country's judiciary to review and invalidate laws, acts, or government actions that are deemed incompatible with a higher authority. In the United States, the Supreme Court has the power to review and invalidate laws that are deemed unconstitutional or inappropriate. This process is known as judicial review and acts as a check on the powers of the other branches of government. The Supreme Court has invalidated portions of various acts, including the Religious Freedom Restoration Act and the Americans With Disabilities Act, on constitutional grounds. In addition to the Supreme Court, federal and state courts in the United States can also review and invalidate statutes within their jurisdiction. The types of challenges to a statute's constitutionality include facial challenges and as-applied challenges, which differ in terms of timing and scope.
| Characteristics | Values |
|---|---|
| Court classification of lawsuits challenging the constitutionality of a statute | Facial challenges, As-applied challenges |
| Facial challenge | A statute is unconstitutional at all times and under all circumstances |
| As-applied challenge | A ruling that narrows a statute's effect |
| Facial challenge example | United States v. Stevens, 559 U.S. 460 (2010) |
| As-applied challenge example | Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) |
| Judicial review | A government's executive, legislative, or administrative actions are subject to review by the judiciary |
| Judicial review power | The power to declare laws unconstitutional, derived from Article III and Article VI of the U.S. Constitution |
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What You'll Learn
Facial challenges
In U.S. constitutional law, a facial challenge is a type of lawsuit that claims a statute is unconstitutional in all circumstances and seeks to invalidate it in its entirety. This is in contrast to an as-applied challenge, which argues that a statute is being applied unconstitutionally in a specific context.
In a facial challenge, the plaintiff argues that the legislation is always unconstitutional and therefore void. The goal is to have the court declare the law "facially invalid", which would result in the entire statute being struck down. Facial challenges are often brought soon after a statute's passage and are considered proactive because they seek to prevent a law from being enforced and potentially violating constitutional rights.
The Supreme Court has identified two situations in which a plaintiff might prevail in a facial challenge: when there is no set of circumstances under which the statute would be valid, or when the statute lacks any "plainly legitimate sweep". Facial challenges are common in claims alleging violations of First Amendment rights. For example, in Reno v. American Civil Liberties Union (1997), the Supreme Court found that certain provisions of the Communications Decency Act of 1996 were unconstitutional on their face because they were vague and "substantially overbroad".
Despite their potential effectiveness, facial challenges are generally disfavored by the Supreme Court because they carry greater consequences than as-applied challenges. Facial challenges have been criticised for resting on speculation and raising the risk of premature interpretation of statutes based on limited information. They also contradict the principle of judicial restraint, which discourages courts from formulating broad rules of constitutional law.
Empirical studies, however, suggest that the Supreme Court may resort to facial challenges more regularly than it claims. For example, in Brown v. Board of Education, the court used a facial challenge under the Equal Protection Clause to invalidate a statute. In conclusion, while facial challenges offer a proactive approach to challenging the constitutionality of a statute, they are generally viewed with caution due to their potential impact and the risk of speculation involved.
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As-applied challenges
In the US, lawsuits that challenge the constitutionality of a statute are classified into two categories: facial challenges and as-applied challenges. This answer will focus on the latter.
An as-applied challenge is a lawsuit that alleges that a statute or regulation is unconstitutional in a specific context. In other words, it is being applied in an unconstitutional manner. This is distinct from a facial challenge, where the plaintiff claims that a statute is unconstitutional at all times and under all circumstances, and the goal is to have a court declare the law "facially invalid".
In an as-applied challenge, the plaintiff is not arguing that the entire statute is unconstitutional but rather that it has been applied unconstitutionally in a particular instance. The result of an as-applied challenge is typically narrower in scope, involving modifications to a statute's effect rather than its total invalidation.
The timing of an as-applied challenge is also important. The lawsuit can only be brought once the statute has already taken effect and been enforced. This is because an as-applied challenge is retrospective or backward-looking, seeking to redress a constitutional violation that has already occurred.
The Supreme Court has expressed a preference for as-applied challenges over facial challenges, as they offer a narrower remedy that can fully protect the litigants without providing relief to non-parties. In some cases, the Supreme Court has rejected a facial challenge to a statute while allowing an as-applied challenge to the same statute.
In First Amendment cases, for example, litigants in as-applied challenges contend that a governmental law, rule, regulation, or policy is unconstitutional as applied to their expressive activities. In Thomas v. Chicago Park District (2002), the Supreme Court rejected a facial challenge to several park-permitting rules but left open the possibility of revisiting the matter in an as-applied challenge if a pattern of unlawful favoritism appeared.
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Judicial review
In the US, judicial review is conducted by federal and state courts at all levels, including appellate and trial courts. These courts interpret the law and determine whether statutes are constitutional, ensuring that individuals' constitutional rights are not violated. The US judiciary has been noted for its strong powers of judicial review compared to other countries.
The concept of judicial review has been adopted in various forms worldwide, particularly in countries influenced by US constitutional ideas. For example, France established a constitutional council, while Germany, Italy, and South Korea created special constitutional courts. India, Japan, and Pakistan established supreme courts to exercise judicial review in a similar manner to the US.
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Legislative supremacy
The Supremacy Clause ensures that the federal government's power supersedes that of individual states, preventing a situation where the "authority of the whole society [is] subordinate to the authority of the parts". This was highlighted by James Madison in Federalist No. 44, where he defended the clause as vital to maintaining the nation's functioning. He argued that while state legislatures possess powers not explicitly defined in the Constitution, the federal government should not be subservient to state constitutions.
The Supremacy Clause also applies to treaties, which are considered equally as important as federal statutes and are subject to judicial interpretation and review. These treaties are legally binding under the Constitution, with the Supreme Court applying the clause for the first time in the 1796 case, Ware v. The Court's role in this context is to exercise the power of judicial review, enabling it to invalidate a statute if it violates the Constitution or federal laws.
Several examples illustrate the Supremacy Clause in action. In Chy Lung v. Freeman, the Supreme Court ruled against the detention of a passenger on a Chinese vessel, as the state statute conflicted with federal legislation's authority to regulate the admission of foreign citizens. Similarly, in LULAC v. Wilson, the Court determined that California's Proposition 187 was preempted by the federal government's authority over the regulation of foreign nationals. In another case, a Maryland statute conflicted with an earlier compact between the state and the federal government, rendering a later Maryland law imposing tolls void.
The Supremacy Clause also comes into play when state laws conflict with federal powers or constitutional provisions. For instance, a Pennsylvania law that diminished the compensation of a federal officer by subjecting him to county taxes was deemed invalid as it imposed a burden on a federal instrumentality. Similarly, a Pennsylvania statute from 1826 that penalised the recovery of a runaway slave violated federal legislation and Article IV, Section 2, Clause 3 of the Constitution. These cases demonstrate how the Supremacy Clause ensures that federal law takes precedence over state laws, safeguarding the principles of legislative supremacy.
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Separation of powers
The concept of "separation of powers" refers to the division of government into separate branches, each with its own distinct and independent powers. This system, first proposed by the 18th-century philosopher Montesquieu, aims to ensure that no single branch of government holds more power than another. Typically, this involves dividing the government into three branches: the Legislative, Executive, and Judicial branches.
In the United States federal system, and in forty states, this tripartite division is observed. The Legislative Branch, as established by Article 1 of the United States Constitution, consists of Congress, which is responsible for creating laws. The nondelegation doctrine generally prohibits this branch from delegating its lawmaking responsibilities. However, as seen in the case of *Myers v. U.S.* (1926), Congress can delegate certain powers to the President, such as the removal of executive officers, provided there are statutory criteria in place.
The separation of powers doctrine also comes into play when assessing the relationship between Congress and the President. When the President acts with the express or implied authorization of Congress, their authority is at its highest, encompassing both their independent powers and those delegated by Congress. However, in the "twilight zone" where the distribution of powers between the President and Congress is uncertain, the President's power is at its weakest, as seen in *Yakus v. U.S.* (1944).
The Judicial Branch, represented by the Supreme Court, plays a crucial role in interpreting and applying the separation of powers. For instance, in *Humphrey's Executor v. U.S.* (1935), the Court affirmed Congress's power to create independent agencies, while also recognizing the President's authority to remove purely executive officers. In *Seila Law, LLC v. Consumer Financial Protection Bureau* (2020), the Court further elaborated on the separation of powers, stating that independent agencies headed by a single individual, who cannot be removed by the President, clash with the constitutional structure by concentrating power in a unilateral actor.
While the separation of powers aims for distinct branches, complete independence between them is neither attained nor intended. The system allows for checks and balances, ensuring that no single branch dominates the others, and each branch has the tools to defend its legitimate powers.
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Frequently asked questions
Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. It allows the judiciary to supervise and invalidate laws, acts, or governmental actions that are deemed incompatible with a higher authority.
The judiciary in the United States has the power of judicial review to enforce the separation of powers and ensure that the legislative and executive branches do not exceed their authority.
Yes, in a facial challenge, a plaintiff claims that a statute is unconstitutional at all times and under all circumstances. If a facial challenge occurs before a statute is implemented, a court may invalidate the statute based on its potential impact.
A facial challenge alleges that a statute is unconstitutional in its entirety, while an as-applied challenge is brought after the statute has taken effect and seeks to narrow its effect.
Yes, in the case of Trustees for Vincennes University v. Indiana (1853), a Maryland statute imposing tolls on passenger coaches carrying mails conflicted with an earlier compact with the federal government and burdened federal carriage of mails. This statute was invalidated as it violated Article VI.
