Abortion, Section 5 and Facial Challenges

[marty.lederman at comcast.net]

After today's unanimous decision in the abortion case (http://scotus.ap.org/scotus/04-1144p.zo.pdf), and last week's unanimous decision in Sam's section 5 case, is it possible we're seeing a major shift in the way the Court deals with facial challenges?  Put those decisions together with Lane, and Booker, and Sabri, and Salinas, etc., and it appears increasingly as if it's the resurrection of Raines and Brockett (both prominently cited in today's opinion) -- where the Court is reluctant to invalidate statutes on their "face" but will instead, where possible, carve out sub-categories of applications that either are or are not constitutional, and limit its holdings to those sub-categories (which are fairly arbitrarily defined -- e.g., where there is a nexus to federal funds (Salinas); where there are allegations of constitutional violations (Georgia); courthouse-access cases (Lane); one title of a statute to the exclusion of others (Garrett); cases where the statute would impe!
 ril a woman's health (Ayotte); etc.)

This may call into question the sort of facial invalidation we saw in Casey and Boerne and Florida Prepaid, where the Court was unwilling to segregate the constitutionally problematic applications from the unobjectionable applications, for fear that to do so would encourage legislatures to act recklessly and imprecisely, casting the proverbial wide net and expecting the courts to do the hard work of deciding which fish are "legal" catches.  (O'Connor acknowledges this problem, too, in today's case, with the typical cite to Reese.)   The current Court apparently is either skeptical that facial invalidation will deter such legislative overreaching, or simply resigned to the prospect of having the courts act as statutory surgeons.

If it weren't for Raich, I'd say that the next obvious candidate for such treatment is the Commerce Clause:  Is the Gun Free Schools Zones Act constitutional as applied to weapons that have traveled in interstate commerce or to guns being held for sale?  Is VAWA's civil action constitutional as applied to a rapist who crossed state lines?  If it's good enough for section 5 (Raines, Lane, Georgia) and for the Spending Clause (Salinas, Sabri), why not Commerce?

In any event, it's the stuff of 1001 law review articles, all of which will have trouble living up to the very high post-Florida Prepaid, pre-Lane standard set by Richard Fallon's 2000 Havard Law Review article.
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