This Article seeks to refute Rosenkranz’s argument that courts should limit their adjudication of challenges to Congress’s assertions of Commerce Clause authority to those attacking the entire statutory provision. Part I provides a primer on as-applied and facial challenges, explaining that the claim that a challenge under a constitutional provision must be “facial” is—in practical reality—an argument that a statute is always constitutional in all of its possible applications or unconstitutional in all of its applications, with no middle ground possible. Part II explains the Supreme Court’s modern Commerce Clause jurisprudence. Part III argues that—contrary to Rosenkranz’s view— the Constitution’s structure does not require that all Commerce Clause challenges must be facial; indeed, that structure suggests the opposite. This Part also argues that Rosenkranz’s facial-only approach would lead to outcomes inconsistent with the meaning of the Commerce Clause and would undermine the Supreme Court’s nascent project to enforce the limitations on that Clause. Finally, Part IV suggests two as-applied decision rules under modern Supreme Court doctrine, which can serve as a starting point to reinvigorate as-applied adjudication in this area.
As-Applied Commerce Clause Challenges,
U. Pa. J. Const. L.
Available at: https://scholarship.law.upenn.edu/jcl/vol16/iss2/7