Facial Challenges, Legislative Purpose, and the Commerce Clause


Over the past decade or so, the Supreme Court has issued an extraordinary and highly controversial series of decisions concerning the scope of Congress’s power. Yet beneath the surface of the debate over the federalism cases lies a parallel dispute that has received far less academic notice. This dispute concerns the proper mode of judicial review in cases testing the scope of congressional power. The uncertainty is greatest in the Commerce Clause area, where the Court’s recent cases—including its 2005 decision in Gonzales v. Raich—have shown a strong preference for facial challenges, in sharp contrast to the Court’s traditional inclination toward as-applied review. This article explores several possible rationales for the Court’s use of facial review in Commerce Clause cases, and concludes that the soundest explanation lies in an understanding of the Clause’s meaning that incorporates a requirement of appropriate legislative purpose.


Constitutional Law

Date of this Version

March 2006