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- Title
Facial Challenges, Saving Constructions, and Statutory Severability.
- Authors
Fallon Jr., Richard H.
- Abstract
The doctrines that license "facial challenges" to the constitutionality of statutes are widely misunderstood. So are the two leading devices for limiting facial challenges' potentially wrecking-ball effects: narrowing or saving constructions and severability doctrine. This Article advances entwined theses about facial challenges, narrowing constructions, and statutory severability. Although the Supreme Court long maintained otherwise, facial challenges are commonplace. Besides being mandated by such familiar constitutional tests as strict judicial scrutiny, they reflect the nature of many constitutional rights. Given the pervasiveness of facial challenges, narrowing constructions and severance of otherwise-invalid statutes both play vital roles in preserving a myriad of statutes from total invalidation. But they also invite questions about whether courts impermissibly "rewrite" statutes in order to save them--or, conversely, about whether courts wrongly refuse to salvage statutes that they dislike for policy reasons. Successful responses to these challenges require distinctions that the Supreme Court too often fails to observe, possibly due to confusion. Saving constructions are statutory interpretations, properly disciplined by canons of construction and theories of interpretation. In contrast, statutory severance occurs following a determination that a statute, as properly interpreted, is constitutionally invalid. Severing an invalid statute thus requires judicial agency, not interpretation, but agency that is restricted by separation-of-powers principles that this Article delineates. This Article's prescriptions concerning facial challenges, saving constructions, and statutory severance have neither a liberal nor a conservative valence. The Article's analysis does, however, show the necessity for courts to act as sometime-helpmates to Congress in making statutes workable by severing them. The courts' necessary role in severing statutes illuminates the inadequacies of some, though not all, textualist theories of statutory interpretation.
- Subjects
UNITED States; STATUTORY interpretation; CIVIL rights; CONSTRUCTION; SEPARATION of powers; JUDICIAL process
- Publication
Texas Law Review, 2020, Vol 99, Issue 2, p215
- ISSN
0040-4411
- Publication type
Article