The Subject of the Commerce Clause

In light of some of the comments and questions on my prior posts, it might be helpful to take a step back and explain exactly what puzzle I started out trying to solve.  For this discussion, we will use an example near and dear to the Conspiracy’s heart: the scope of the Commerce Clause, and whether it can justify the individual mandate of ObamaCare.

But first, the puzzle.  The Court has intuited that there are two basic forms of judicial review.  It has called these two forms “facial challenges to statutes” and “as-applied challenges to statutes.” But the distinction between them is quite confused. Under current doctrine, an “as-applied challenge” is somehow narrower, turning on the challenger’s specific facts and implying a remedy tailored to those facts. A “facial challenge” is broader and more general, implying, somehow, that the statute is rotten to the core, and perhaps suggesting a sweeping remedial declaration that the statute is “void.”  An as-applied challenge is mostly about facts, whereas a facial challenge is mostly about text.  But when is the former appropriate and when the latter? Precisely what remedy is appropriate in each case? Indeed, what exactly do these terms — “facial” and “as-applied” — even mean?

The Court has issued precious little guidance on the matter, merely emphasizing that it considers “as-applied” challenges to be the norm, and “facial” challenges to be a “disfavored” exception to the rule.  In a case called Salerno, the Court said: “A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”  That may sound like a clear rule, but courts and commentators have struggled mightily to figure out what it means.  And in any case, the Court itself often ignores this rule, in some contexts but not others, without explanation.

One such context is the Commerce Clause. In 1990, Congress enacted the Gun-Free School Zones Act, which made it a federal offense “for any individual knowingly to possess a firearm . . . at a place that the individual knows, or has reasonable cause to believe, is a school zone.”  Alfonso Lopez was charged with bringing a gun to a high school in San Antonio. He presented a constitutional defense, claiming that the Act “exceeded Congress’ power to legislate under the Commerce Clause.”  The Court agreed and, for the first time in fifty-eight years, struck down a statute on Commerce Clause grounds.

But here is the puzzle.  Why did the Court tolerate a “facial” challenge here, when it usually insists that they are “disfavored”?  Why is there no mention of Salerno and no inquiry into whether “no set of circumstances exists under which the Act would be valid”?  And why is there no inquiry into Mr. Lopez’s specific facts?  Why is there no substantial discussion of whether Mr. Lopez’s personal gun had travelled in interstate commerce?

The puzzle may be solved by focusing on the answer to the who question, the subject of the Clause. The Commerce Clause says: “The Congress shall have power . . . To regulate commerce . . . among the several states . . . .”  Like the First Amendment, it is written in the active voice and it has a clear subject: Congress.  So, a Commerce Clause challenge, like a First Amendment challenge, is a challenge to an action of Congress. Congress is the subject of the claim and the answer to the who question. And the answer to the when question follows: if Congress makes a law in excess of its power under the Commerce Clause and thus violates the Tenth Amendment, the constitutional violation occurs when Congress makes the law.

As the Court has intuited but not explained, a claim that Congress violated the Constitution by making a law, when it made the law, is inherently a “facial” challenge.  Facial challenges cannot be “disfavored” here; in this context, they are logically required.  Conversely, “as-applied” challenges cannot be “favored” here; in this context, they make no sense. The specific facts of enforcement cannot matter in a Commerce Clause case, for the simple reason that the constitutional violation is complete before those facts arise. It cannot matter whether Mr. Lopez’s gun travelled in interstate commerce, because Congress violated the Constitution long before, by making the law.

This is how to make sense of the Court’s muddled distinction between “facial” challenges and “as-applied” challenges.  The distinction the Court is grasping for is a distinction based on subjectAn as-applied challenge is a challenge to executive action (as in the Search and Seizure Clause of the Fourth Amendment). A facial challenge is a challenge to legislative action (as in the First Amendment and in the Commerce Clause).

This explains what happened in Lopez, and it explains what happened in the cases that followed.  The next Commerce Clause case, Morrison, was also a purportedly “disfavored” facial challenge — and it also succeeded.  Here, too, there was no analysis of specific facts, just analysis of the action (or “Act”) of Congress.

The one after that, Raich, argued by Conspirator Randy Barnett, took the opposite approach from Lopez.  Raich insisted that the Court should focus on her particular facts, and whether they affected interstate commerce.  One would have thought that this was a sensible strategy — the “as-applied” approach that the Court purports to favor.  But here, the Court would have none of it.  Raich’s facts were irrelevant to whether Congress did or did not exceed its power years before.

In light of these cases, it is enormously important that the healthcare litigation has been properly framed — with Randy’s wise guidance — as a facial challenge.  In the healthcare litigation, the challengers have carefully answered the who question, arguing that Congress exceeded its power by enacting the statute.  Thus, they are not arguing about the hardship to any particular person, just as Lopez did not argue about his particular gun.  Those facts don’t matter to the merits of the claim, because the culprit is Congress and the alleged violation is already complete.  As Randy has explained, that framing — that correct answer to the who question — is a crucial reason why this challenge may succeed.