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Facial Challenges, Saving Constructions, and Statutory Severability FALLON.PRINTER.DOCX (DO NOT DELETE) 12/18/20 12:43 PM Facial Challenges, Saving Constructions, and Statutory Severability Richard H. Fallon, Jr.* 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. * Story Professor of Law, Harvard Law School. I am grateful to Rachel Bayefsky, Michael Dorf, Henry Monaghan, and Kevin Walsh for extremely helpful comments on a prior draft and to Emily Massey and Benjamin Miller-Gootnick for invaluable research assistance. FALLON.PRINTER.DOCX (DO NOT DELETE) 12/18/20 12:43 PM 216 Texas Law Review [Vol. 99:215 I. INTRODUCTION ...................................................................................217 II. A CONCEPTUAL PRIMER .....................................................................228 A. Facial Challenges .....................................................................228 1. Constitutional Tests and Their Implications ..........................228 2. Successful Facial Challenges: An Important Ambiguity ........229 B. Narrowing Constructions .........................................................231 C. Statutory Separability or Severability ......................................232 III. SOME CONFUSIONS ABOUT FACIAL CHALLENGES .............................237 A. Facial Challenges and the Nature of Constitutional Rights .....238 B. Possible Priorities for As-Applied Challenges and Prohibitions of Facial Challenges ............................................242 1. Barring Facial Challenges in Cases also Presenting Meritorious As-Applied Challenges .....................................242 2. Severability as a Basis for Permitting Challengers to Raise Only “As-Applied” Challenges ...........................................243 3. Refusals to Entertain Facial Challenges When Separability Doctrine Would Bar Relief to the Challenger ......................245 C. The Implications of Unsuccessful Facial Challenges ..............248 IV. NARROWING CONSTRUCTIONS ...........................................................250 A. Narrowing Constructions, Rewriting Statutes, and State Court Prerogatives ...................................................................250 B. Supreme Court Conflation of Saving Constructions with Statutory Severing ....................................................................251 V. SEVERING STATUTES ..........................................................................254 A. Severing, Interpreting, and Rewriting ......................................255 B. Severing Provisions vs. Severing Applications .......................259 1. Severing of Statutory Applications .........................................259 a. Federal Statutes That Have Neither Severability nor Nonseverability Clauses ..................................................263 b. Federal Statutes with Separability Clauses ......................265 c. Separability of State Statutes ...........................................268 2. Severance of Statutory Provisions .........................................271 VI. CONCLUSION: FACIAL CHALLENGES, STATUTORY SEVERING, AND THE JUDICIAL ROLE ............................................................................278 FALLON.PRINTER.DOCX (DO NOT DELETE) 12/18/20 12:43 PM 2020] Facial Challenges 217 I. Introduction After decades of denial, the Supreme Court has begun to acknowledge that facial challenges to statutes constitute the norm, not the exception, among constitutional cases on its docket.1 As recently as 1987, United States v. Salerno2 insisted that to succeed with a facial challenge, “the challenger must establish that no set of circumstances exists under which [a challenged statute] would be valid”3—a stringent though not always impossible standard to meet. Justice Scalia subsequently maintained that adherence to the Salerno rule precluded courts from facially invalidating anti-abortion statutes that could have any valid applications.4 Roughly two decades after Salerno, in Sabri v. United States,5 Justice Souter’s Court opinion still maintained that “facial challenges are best when infrequent.”6 Quoting an earlier decision, Justice Souter asserted that “[f]acial adjudication carries too much promise of ‘premature interpretatio[n] of statutes’ on the basis of factually barebones records.”7 Justice Souter acknowledged a “relatively few settings” in which the Court had “recognized the validity of facial attacks,”8 including cases involving freedom of speech, the right to travel, abortion, and legislation enacted under Section Five of the Fourteenth Amendment.9 But “[o]utside of these limited settings,” he wrote, “we do not extend an invitation to bring overbreadth claims.”10 Jeremiads against facial challenges have largely vanished in recent years,11 perhaps as the Justices have come to recognize that not all facial 1. See, e.g., Murphy v. NCAA, 138 S. Ct. 1461, 1482–84 (2018) (refusing to sever and uphold secondary statutory provisions after invalidating a more central one); Johnson v. United States, 135 S. Ct. 2551, 2556–57, 2561 (2015) (upholding a facial challenge to a criminal statute on vagueness grounds and explaining that “our holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp”); Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018) (extending Johnson’s holding that statutes can be facially invalid due to vagueness to apply to some statutes imposing civil liability); City of Los Angeles v. Patel, 135 S. Ct. 2443, 2449 (2015) (observing that although facial “challenges are ‘the most difficult . to mount successfully,’ the Court has never held that these claims cannot be brought under any otherwise enforceable provision of the Constitution” (quoting United States v. Salerno, 481 U.S. 739, 745 (1987))). 2. 481 U.S. 739 (1987). 3. Id. at 745. 4. Ada v. Guam Soc. of Obstetricians and Gynecologists, 506 U.S. 1011, 1011–12 (1992) (Scalia, J., dissenting from the denial of certiorari). 5. 541 U.S. 600 (2004). 6. Id. at 608. 7. Id. at 609 (quoting United States v. Raines, 362 U.S. 17, 22 (1960)). 8. Id. 9. Id. at 610. 10. Id. 11. But see United States v. Sineneng-Smith, 140 S. Ct. 1575, 1585 (2020) (Thomas, J., concurring) (calling for a reevaluation and rejection of First Amendment overbreadth doctrine that FALLON.PRINTER.DOCX (DO NOT DELETE) 12/18/20 12:43 PM 218 Texas Law Review [Vol. 99:215 challenges involve “overbreadth,”12 a basis for challenge to legislation that the Supreme Court had developed under and sought to limit to the First Amendment.13 Instead, the Justices have begun to confront, or at least accept, the reality that the “tests” of constitutional validity that dominate much of contemporary constitutional law frequently call for statutes to be judged on their faces.14 A few examples should suffice to make the point. The strict scrutiny test asks whether statutes are narrowly tailored to compelling governmental interests.15 The intermediate scrutiny formula also applies to statutes, not statutory applications.16 So, even, does the rational basis test inquire into whether statutes are rationally related to legitimate state interests.17 The Court has similarly promulgated tests for whether statutes are valid under the Commerce Clause18 and Section Five of the Fourteenth “exacerbates the many pitfalls” of facial challenges that constitute “a ‘disfavored’ method of adjudication”); June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2175 (2020) (Gorsuch, J., dissenting) (insisting that “the path for a litigant pursuing a facial
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